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2,500 | https://www.mspb.gov/decisions/nonprecedential/Pak_Jae_CH-315H-19-0118-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAE PAK,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-315H-19-0118-I-1
DATE: January 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jae Pak , Warsaw, Indiana, pro se.
Danielle Kalivoda , 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 probationary termination appeal for lack of jurisdiction without a
hearing. On petition for review, the appellant disputes the merits of his
termination, argues that the agency failed to follow the procedures of 5 C.F.R.
§ 315.805, and appears to argue that his termination was in retaliation for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
whistleblowing and equal employment opportunity activity. He has attached
several exhibits to his 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 or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the appellant
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
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 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:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Pak_Jae_CH-315H-19-0118-I-1_Final_Order.pdf | 2024-01-24 | JAE PAK v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-315H-19-0118-I-1, January 24, 2024 | CH-315H-19-0118-I-1 | NP |
2,501 | https://www.mspb.gov/decisions/nonprecedential/Aki_Martin_Lisa_SF-0752-21-0142-R-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LISA AKI MARTIN,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0752-21-0142-R-1
DATE: January 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daphne E. Barbee , Esquire, Honolulu, Hawaii, for the appellant.
Loraine Kovach-Padden and Ryan L. Wischkaemper , Washington, D.C., for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The Board issued a final decision in this appeal on August 11, 2023. Aki
Martin v. Department of Defense , MSPB Docket No. SF-0752-21-0142-I-1, Final
Order (Aug. 11, 2023). 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 in Aki Martin v. Department of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Defense, MSPB Docket No. SF-0752-21-0142-I-1, Final Order (Aug. 11, 2023),
and DISMISS the underlying appeal as settled.
After the Board issued a final decision resolving this appeal, the agency
filed, on behalf of both parties, a joint request for the Board to reopen the
August 11, 2023 final order and dismiss the appeal as settled. Aki Martin v.
Department of Defense , MSPB Docket No. SF-0752-21-0142-R-1, Reopening File
(RF), Tab 1 at 2. The submission included a settlement agreement signed by the
appellant, the appellant’s attorney, the Principal Deputy Director of the agency
component involved in this appeal, and an Assistant United States Attorney for
the District of Hawaii.2 Id. at 3-8. All of the individuals signed the agreement on
August 23, 2023. Id. at 7-8. The agreement provides, among other things, that
the parties would jointly move to reopen the appeal and “formally dismiss [it]
with prejudice as settled.” Id. at 4.
Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ).
Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. RF, Tab 1 at 7. 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. Accordingly, we
2 In addition to the Board proceeding, the settlement agreement resolved matters
pending before the Equal Employment Opportunity Commission and in U.S. District
Court. RF, Tab 1 at 3-4.2
find that dismissing the appeal with prejudice to refiling (i.e., the parties normally
may not refile this appeal) is appropriate under these circumstances.
This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Aki_Martin_Lisa_SF-0752-21-0142-R-1_Final_Order.pdf | 2024-01-24 | LISA AKI MARTIN v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0752-21-0142-R-1, January 24, 2024 | SF-0752-21-0142-R-1 | NP |
2,502 | https://www.mspb.gov/decisions/nonprecedential/Arellano_Rosa_I_DA-0752-17-0230-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSA I. ARELLANO,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0752-17-0230-I-1
DATE: January 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lorenzo W. Tijerina , Esquire, San Antonio, Texas, for the appellant.
Robert H. Moore , Esquire, and David V. Sorola , Esquire, Del Rio, 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 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;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
except as expressly MODIFIED to set forth the proper standard for evaluating an
affirmative defense of discrimination. 5 C.F.R. § 1201.113(b).
BACKGROUND
The agency employed the appellant as a Customs and Border Protection
(CBP) Officer, GS-1895-12. Initial Appeal File (IAF), Tab 5 at 29. Her position
required her to perform duties of a strenuous and hazardous nature, including
using a firearm, wearing a gun belt to carry her firearm and other “personal
protection equipment,” standing and walking for long periods, running or
sprinting for 150 feet, lifting and carrying up to 85 pounds, pushing and pulling,
and climbing using both hands and feet. Id. at 94, 97-109. On December 4,
2015, she submitted medical documentation from her treating physician assistant
indicating that she had back and leg pain due to a herniated disc and that she
could not wear her gun belt until further treatment “in January.” Id. at 137. She
requested temporary light duty, which the agency approved on December 10,
2015. Id. at 135. Following the initial approval of her temporary light duty
request, the appellant submitted monthly requests for light duty accompanied by
3
authorizations to return to work with restrictions written by her physician
assistant. Id. at 144-50, 159-60.
On July 25, 2016, the Assistant Port Director instructed the appellant to
provide administratively acceptable medical documentation containing the
following information: a diagnosis of her condition and resulting impairments;
an explanation of how her condition affected her ability to perform her duties; a
prognosis; recommendations regarding any specific accommodation she needed;
and a medical opinion regarding whether she was physically capable of using a
firearm and performing “necessary force requirements.”2 Id. at 130-31. In
response to this request, the appellant provided an August 2016 medical
evaluation from her treating physician assistant stating, among other things, that
her back, neck, and leg conditions limited her ability to sit, stand, and walk, and
precluded her from lifting more than 20 pounds, running, climbing stairs,
performing necessary force requirements, and using a firearm. Id. at 128-29. He
stated that her “current prognosis is not stable, her symptoms are debilitating in
nature and possibly may require surgical intervention for symptomatic relief of
lower back pain and left lower extremity pain since all other conservative
treatments has [sic] failed to alleviate her symptoms.” Id. at 128. He further
opined that the appellant was “not expected to resume full performance of duties
of her current position in the near future.” Id.
By notice dated September 6, 2016, the Port Director instructed the
appellant to report for a fitness-for-duty (FFD) examination to determine her
ability to perform her duties as a CBP Officer. IAF, Tab 5 at 78-80. Following
the FFD examination, another physician reviewed the results of the examination,
the appellant’s medical history, and the description, physical requirements, and
medical standards of her CBP Officer position, and issued an FFD report dated
2 Necessary force requirements include the use of a firearm and nonlethal, intermediate
techniques to protect and defend the life of oneself and others. IAF, Tab 5 at 95, 99,
131.
4
October 24, 2016.3 Id. at 82-84. In the FFD report, the reviewing physician
stated that the appellant was not fit for duty due to her lower back pain, noting
that “[i]t is likely that since [the appellant’s] back pain has not responded to
different modalities of treatment in 3 years, she will not be able to safely perform
the job duties of a CBP Officer for the foreseeable future.” Id. at 82-83.
On November 29, 2016, the agency proposed to remove the appellant on
the basis of her inability to perform the essential duties of her position. Id.
at 59-62. The single specification underlying the charge referenced the
October 24, 2016 FFD report and its conclusion that she was not fit for duty. Id.
at 59-60. The proposal notice stated that the agency conducted a job search for
another position that would meet the appellant’s qualifications and restrictions
but that the search had been unsuccessful. Id. at 60. The appellant provided oral
and written replies to the proposed removal. Id. at 31, 36-48. Effective
February 14, 2017, the agency removed her. Id. at 29, 31-34.
The appellant timely appealed her removal to the Board, arguing that the
agency discriminated against her on the bases of her age, sex, and disability,
committed harmful procedural error, and denied her due process. IAF, Tabs 1,
14-15. After holding the appellant’s requested hearing, the administrative judge
issued an initial decision affirming her removal. IAF, Tab 21, Initial Decision
(ID).
The appellant has filed a petition for review of the initial decision, the
agency has responded, and the appellant has submitted a reply. Petition for
Review (PFR) File, Tabs 1, 4-5.
3 The October 24, 2016 FFD report revised an October 12, 2016 report, which
incorrectly stated that the appellant had been on light duty since September 2013 due to
lower back pain. IAF, Tab 5 at 82, 85-86. The record reflects that the appellant
submitted a September 20, 2013 request for light duty but that the agency denied her
request because there was no light duty position available. Id. at 133-34. The revised
report correctly states that the appellant’s treating clinician placed her on restricted duty
on September 20, 2013, due to lower back pain but does not state that she remained on
restricted duty for the following 3 years. Id. at 82.
5
ANALYSIS
We discern no error in the administrative judge’s ruling to allow the agency to
submit the reviewing physician’s affidavit in lieu of her live testimony.
Prior to the hearing, the agency informed the administrative judge that the
reviewing physician, one of its approved witnesses, would be unable to testify on
the date of the scheduled hearing because she had accepted a new job with a
different employer and had training on that date. IAF, Tab 17. In lieu of the
reviewing physician’s testimony, the agency moved to submit her notarized
affidavit.4 IAF, Tab 19. During the hearing, the administrative judge granted the
agency’s motion over the appellant’s objection and accepted the reviewing
physician’s affidavit into the record. IAF, Tab 20, Hearing Compact Disc (HCD).
On review, the appellant argues that the administrative judge erred in permitting
the agency to submit the reviewing physician’s affidavit in lieu of live testimony
because it deprived her of her “constitutional right to confront” the reviewing
physician. PFR File, Tab 1 at 28-31, Tab 5 at 5-7. She argues that due process
requires confrontation and cross-examination in this case because she is
challenging her removal “as resting on incorrect or misleading factual premises or
the misapplication of rules or policies to the facts of her particular case.” PFR
File, Tab 1 at 30.
As an initial matter, the agency, not the appellant, called the reviewing
physician as a witness.5 IAF, Tab 13 at 9, Tab 15 at 5. An agency proffers
witnesses for its own—not for the appellant’s—benefit. Therefore, neither the
4 The agency first moved to reschedule the hearing to a date that would allow the
reviewing physician to testify, which the appellant opposed. IAF, Tabs 17-18. The
administrative judge did not grant the agency’s motion to reschedule the hearing.
5 Although the appellant indicated in her prehearing submission that she “adopt[ed] all
of the Agency’s witnesses as the Appellant’s,” IAF, Tab 14 at 16, the administrative
judge approved the reviewing physician as a witness for the agency only, IAF, Tab 15
at 5. She advised the parties that any objections to her order and summary of the
prehearing conference, which included her rulings on witnesses, must be filed within
7 days. Id. at 6. Neither party filed an objection, and the appellant is therefore
precluded from challenging the order regarding witnesses on review. See Sanders v.
Social Security Administration , 114 M.S.P.R. 487, ¶ 9 (2010).
6
agency nor the administrative judge was under any obligation to require the
reviewing physician to appear at the hearing. See Lohr v. Department of the Air
Force, 24 M.S.P.R. 383, 386 (1984). If the appellant wished to examine her at
the hearing, it was incumbent upon her to call her as a witness. See Dubiel v.
U.S. Postal Service , 54 M.S.P.R. 428, 432 (1992). Moreover, the appellant could
have requested, but did not, a subpoena to compel the attendance of the reviewing
physician at the hearing. Id.; 5 C.F.R. §§ 1201.41(b)(2), 1201.81. Furthermore,
upon learning that the reviewing physician would be unavailable for the
scheduled hearing, the appellant could have sought, but did not, a continuance to
obtain her appearance at the hearing; rather, she opposed the agency’s attempt to
do just that. See Dubiel, 54 M.S.P.R. at 432; IAF, Tabs 17-18. Therefore, we
find no merit to the appellant’s contention that the administrative judge denied
her due process because, even assuming she had a due process right to confront
the reviewing physician at the hearing, she failed to avail herself of the Board’s
procedures that might have led to the reviewing physician’s appearance at the
hearing. See Dubiel, 54 M.S.P.R. at 432; Lohr, 24 M.S.P.R. at 386.
In addition, we find that the appellant has not shown that the administrative
judge abused her broad discretion to regulate the course of the hearing and to
receive relevant evidence by accepting the affidavit in lieu of hearing testimony.
5 C.F.R. § 1201.41(b)(3); see Thomas v. U.S. Postal Service , 116 M.S.P.R. 453,
¶ 4 (2011). Even if the appellant had made such a showing, she has not shown
that the outcome of this appeal was affected. See Thomas, 116 M.S.P.R. 453, ¶ 4
(providing that, in order to obtain reversal of an initial decision on the ground
that the administrative judge abused her discretion in excluding evidence, the
petitioning party must show on review that relevant evidence, which could have
affected the outcome, was disallowed).
The administrative judge correctly determined that the agency proved the charge.
When, as here, a removal for inability to perform is based on a current
medical condition, the agency must prove either a nexus between the employee’s
7
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. Haas v. Department of Homeland Security ,
2022 MSPB 36, ¶¶ 15, 20.6 In other words, the agency must establish that the
appellant’s medical condition prevents her from being able to safely and
efficiently perform the core duties of her position. Id., ¶ 20. The Board has
indicated that the core duties of a position are synonymous with the essential
functions of a position under the Americans with Disabilities Act (ADA), as
amended by the ADA Amendments Act, i.e., the fundamental job duties of the
position, not including marginal functions. Id., ¶ 21. One of the bases for
finding that a function is essential is that it is the “reason the positions exists.”
Id.; 29 C.F.R. § 1630.2(n)(2)(i).
In the initial decision, the administrative judge found that wearing a gun
belt and firearm were essential functions of the appellant’s position as a CBP
Officer. ID at 7. She further found that the medical evidence and hearing
testimony established that the appellant’s medical condition precluded her from
performing those essential functions. Id. Thus, she concluded that the agency
proved that there was a nexus between the appellant’s medical condition and her
inability to perform her job duties and sustained the charge. ID at 7-8.
On review, the appellant does not challenge, and we discern no basis to
disturb, the administrative judge’s finding that wearing a gun belt and firearm are
essential functions of the CBP Officer position. PFR File, Tabs 1, 5. She appears
to argue, however, that the administrative judge erred in relying on the FFD
report to find that she could not perform those duties because the agency violated
its procedures in forcing her to undergo the FFD examination. PFR File, Tab 1
at 20, Tab 5 at 5-8. She further appears to argue that the FFD report is not
6 The Board recently clarified that this standard applies to charges of inability to
perform involving a current medical condition or impairment even when, as in this case,
the appellant occupies a position with medical standards or physical requirements.
Haas, 2022 MSPB 36, ¶ 14.
8
probative regarding her ability to perform the duties of her position because it is
“unauthenticated, un -notarized, undeclared pursuant to 28 USC [§] 1746, nor [sic]
certified as a business record, statement” and because the reviewing physician did
not personally examine her or ever speak to her.7 PFR File, Tab 5 at 5, 8.
In support of her contention that the agency improperly ordered her to
submit to an FFD examination, the appellant argues that the proposing and
deciding officials testified that the agency’s policy is to order an FFD
examination only after an employee has been on light duty for 1 year and that the
agency violated this policy when it required her to submit to one, even though she
had been on light duty for less than 1 year. PFR File, Tab 1 at 20; HCD (the
appellant’s closing argument). Contrary to her allegation, however, neither the
proposing nor deciding official testified that the agency had such a policy, and
the appellant has provided no other evidence in support of this argument. HCD
(testimony of the deciding and proposing officials). Pursuant to 5 C.F.R.
§ 339.301(b)(3), an agency may require an individual who occupies a position
with medical standards or physical requirements to report to a medical
examination “[w]henever the agency has a reasonable belief, based on objective
evidence, that there is a question about an employee’s continued capacity to meet
the medical standards or physical requirements of a position.” Here, the
appellant’s position was subject to medical standards and physical requirements,
and the medical notes she submitted to the agency between September 2013 and
June 2016 regarding her physical impairments and need for restricted duty
provided the agency with a reasonable basis to question her ability to safely
perform her duties. IAF, Tab 5 at 94, 97-110, 128-29, 133, 137, 145, 148, 150,
160. Therefore, we find that, contrary to the appellant’s argument on review, the
7 On review, the appellant also challenges the FFD report because it erroneously states
that she had been medically restricted for 3 years. PFR File, Tab 1 at 20. As noted
above, however, the revised report contains no such error. Supra ¶ 4 n.3; IAF, Tab 5
at 82-83.
9
agency properly ordered her to submit to a FFD examination. See 5 C.F.R.
§ 339.301(b)(3).
We also find no merit in the appellant’s contention that the FFD report is
not probative regarding her ability to perform the essential functions of her
position. In assessing the probative weight of medical opinions, the Board
considers whether the opinion was based on a medical examination, whether the
opinion provided a reasoned explanation for its findings as distinct from mere
conclusory assertions, the qualifications of the expert rendering the opinion, and
the extent and duration of the expert’s familiarity with the appellant’s medical
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) . In addition, because neither the reviewing
physician nor the physician assistant testified at the hearing, we must assess the
probative value of their medical reports as hearsay evidence. See Borninkhof v.
Department of Justice , 5 M.S.P.R. 77, 83-87 (1981). The Board generally
evaluates the probative value of hearsay evidence by considering various factors
that include the availability of persons with firsthand knowledge to testify at the
hearing, whether the out -of-court statements were signed or in affidavit form,
whether the declarants were disinterested witnesses to the events and whether
their statements were routinely made, the consistency of the out -of-court
statements with other statements and evidence, whether there is corroboration or
contradiction in the record, and the credibility of the out-of-court declarant. Id.
Here, the agency represented that the reviewing physician was unavailable
to testify at the hearing due to a conflict. IAF, Tabs 17-18. Her FFD report is
signed, and she also submitted a notarized affidavit signed under oath discussing
and affirming her findings in the FFD report. IAF, Tab 19. While she did not
personally examine the appellant, her affidavit and the FFD report reflect that she
conducted a comprehensive review of the relevant evidence, including the
appellant’s position description, the medical standards and physical requirements
of her position, the FFD examination and bloodwork, the physician assistant’s
10
report, and the appellant’s 2013 and 2015 -2016 requests for light duty and related
correspondence. IAF, Tab 5 at 82-83, Tab 19 at 7 (citing IAF, Tab 5 at 82-84,
87-110, 112-24, 128-35, 138-40, 144-50, 153-55, 153-56, 159 -60, 163). Her
affidavit further reflects that she is a medical doctor and that she has been
licensed to practice medicine in Virginia since 2014. IAF, Tab 19 at 6.
The availability of the physician assistant to testify at the hearing is
unknown as neither party called him to testify. IAF, Tab 15 at 5. His medical
report was signed, though not sworn. IAF, Tab 5 at 128-29. The record reflects
that he had been treating the appellant for several months and was thus familiar
with her treatment. Id. at 128-29, 137, 145, 148, 150, 160. His letterhead reflects
that he is a Board Certified Physician Assistant at an office specializing in
treatment of the spine. Id.
Both the reviewing physician’s FFD report and the physician assistant’s
report contain reasoned explanations in support of their conclusions, are routinely
made medical reports by disinterested medical providers, and are consistent with
each other, the FFD medical examination, and other evidence of record. See
Adams, 108 M.S.P.R. 250, ¶ 13; IAF, Tab 5 at 82-84, 111-29. Moreover, these
reports are consistent with the appellant’s own hearing testimony that she could
not carry her gun belt in 2016. HCD (testimony of the appellant). The record is
devoid of any evidence contradicting the conclusions of the reviewing physician
and the physician assistant that the appellant was not fit for duty in 2016 and that
she was not expected to be able to perform the full range of her duties in the near
or foreseeable future.
In light of the foregoing, we find that both the FFD report and the
physician assistant’s reports are highly probative regarding the appellant’s ability
to perform the duties of her position and her prognosis. We further find that the
administrative judge and the agency properly relied on this documentary evidence
and agree that preponderant evidence demonstrates that the appellant’s medical
condition precluded her from performing the essential duties of her position. ID
11
at 7-8; Haas, 2022 MSPB 36, ¶¶ 15, 20. Thus, we discern no basis to disturb the
administrative judge’s determination that the agency proved the charge.
The appellant failed to establish discrimination based on disparate treatment.
The appellant argued below that the agency discriminated against her on
the bases of age and sex by ordering her to furnish medical evidence regarding
her ability to perform her duties and to submit to an FFD examination before she
was on light duty for a full year. IAF, Tab 14 at 6; HCD (testimony and closing
argument of the appellant). She alleged that certain male employees and
employees under 40 years of age who had injuries or disabilities or who were on
light duty were not sent for FFD examinations. IAF, Tab 14 at 6; HCD
(testimony and closing argument of the appellant).
After the initial decision was issued, the Board clarified its analytical
framework for sex and age status-based discrimination claims in Pridgen v. Office
of Management and Budget , 2022 MSPB 31, ¶¶ 20-25, and we apply that
framework here. To establish a claim of discrimination based on age or sex, an
appellant must prove by preponderant evidence that her membership in a
protected class was a motivating factor in the contested personnel action, even if
it was not the only reason. Pridgen, 2022 MSPB 31, ¶¶ 23-25. In determining
whether the appellant has met his initial burden to show a motivating factor, the
Board must consider all of the evidence together as a whole, without sorting
evidence into different piles, labeled “direct” or “indirect,” that are evaluated
differently. Sabio v. Department of Veterans Affairs , 124 M.S.P.R. 161, ¶ 36
(2017).
As noted above, the appellant relied on comparator evidence in support of
her claim that the agency discriminated against her on the bases of age and sex.
For another employee to be deemed similarly situated for purposes of an
affirmative defense of discrimination based on disparate treatment, a comparator
must have reported to the same supervisor, been subjected to the same standards
12
governing discipline, and engaged in conduct similar to the appellant’s without
differentiating or mitigating circumstances. Pridgen, 2022 MSPB 31, ¶ 27.
The administrative judge considered the appellant’s claim that the agency
treated male and younger employees more favorably by not requiring them to
submit to an FFD examination but found that the appellant failed to identify any
similarly situated comparator without differentiating circumstances , i.e., one who,
like the appellant, provided medical documentation indicating that she would not
be able to return to duty in the “near future.” ID at 9-12. She further found that
the appellant failed to provide anything more than unsupported allegations to
show that the agency removed her based on her age or sex. ID at 8-13. She
considered the hearing testimony of the deciding and proposing officials and
found that they credibly testified that the appellant’s age and sex were not factors
in their actions. ID at 10-12. She also found that the agency’s proffered reason
was the real reason for the action. ID at 13.
On review, the appellant argues that the agency failed to provide any
evidence to controvert her allegation that it treated certain other employees more
favorably and that the proposing and deciding officials failed to articulate a
legitimate reason for their discriminatory treatment of the appellant. PFR File,
Tab 1 at 21-22, Tab 5 at 14-15. Contrary to the appellant’s argument that the
agency must controvert her allegations of discrimination, it is her burden to show
in the first instance that the agency’s action was motivated by discriminatory
animus. See Pridgen, 2022 MSPB 31, ¶¶ 23-23. The administrative judge
thoroughly considered the appellant’s arguments and the evidence as a whole and
concluded that she failed to meet her burden. ID at 8-13. The appellant’s
allegation that the proposing and deciding officials failed to articulate a
legitimate reason for their actions is likewise unavailing. As discussed above, the
appellant could not perform the duties of her position, and the agency properly
referred her for an FFD examination. Therefore, we find no basis to disturb the
13
administrative judge’s well-reasoned determination that the appellant failed to
show motivating factor by preponderant evidence.
The appellant failed to prove her affirmative defense of disability discrimination
based on a failure to accommodate.
On review, the appellant argues that the agency discriminated against her
by failing to provide her a reasonable accommodation to a position that did not
require her to carry her firearm. PFR File, Tab 1 at 23 -25. The Rehabilitation
Act requires an agency to provide reasonable accommodation to the known
physical or mental limitations of an otherwise qualified individual with a
disability unless the agency can show that accommodation would cause an undue
hardship on its business operations. Clemens v. Department of the Army ,
120 M.S.P.R. 616, ¶ 10 (2014). Once such an employee requests a reasonable
accommodation, the employer must engage in the interactive process to determine
an appropriate accommodation. Id., ¶ 12. An agency’s failure to engage in the
interactive process alone, however, does not violate the Rehabilitation Act;
rather, the appellant must show that this omission resulted in failure to provide
reasonable accommodation. Id., ¶ 17. The appellant bears the burden of proving
that an accommodation she seeks is reasonable and, when she seeks a
reassignment, that there was a position that the agency would have found and to
which it could have assigned her if it had looked. Id.
Here, the administrative judge found that, although the appellant identified
several positions to which she believed she could have been reassigned, she
provided no evidence showing that there was a vacant funded position available
at the time of her removal. ID at 14. Therefore, the administrative judge
concluded that the appellant failed to prove her affirmative defense of disability
discrimination based on a failure to accommodate. Id.
On review, the appellant argues that the agency failed to conduct an
adequate search for a reassignment and that the deciding official’s hearing
testimony regarding the agency’s search was not credible. PFR File, Tab 1
14
at 24-25. As noted above, however, regardless of whether the agency conducted
an adequate search for a reassignment, the appellant still bears the ultimate
burden of proving that there was a position that the agency would have found and
to which it could have assigned her if it had looked. Clemens, 120 M.S.P.R. 616,
¶ 17. The appellant did not identify any available position, and her assertion that
she believes the agency failed to search outside of a 50-mile radius is insufficient
to meet her burden of proof. Id. Thus, we find no basis to disturb the
administrative judge’s determination that the appellant failed to prove her
disability discrimination affirmative defense based on a failure to accommodate.
The agency did not deny the appellant due process or commit harmful error.
The appellant argues on review, as she did below, that the agency violated
her right to due process and committed harmful error by allegedly changing the
deciding official identified in the proposal notice and by requiring her to provide
her oral response to a hearing official, who did not make a final decision on the
proposed removal or make a recommendation to the deciding official. PFR File,
Tab 1 at 25-28, Tab 5 at 8-10. We find no merit to these arguments.
As the administrative judge correctly found, the agency identified who the
deciding official would be in the proposal notice and did not subsequently change
the deciding official. ID at 16; IAF, Tab 5 at 31-34, 61. The administrative
judge further found, and we agree, that the agency did not violate the appellant’s
due process rights because it afforded her notice and an opportunity to respond to
the proposed action, and the deciding official considered the recording of her oral
response and her written response in arriving at his decision to impose the
proposed removal. ID at 14-16; IAF, Tab 5 at 31, 36-48, 61, HCD (testimony of
the deciding official); see Cleveland Board of Education v. Loudermill , 470 U.S.
532, 546 (1985). Lastly, the administrative judge correctly found that the agency
did not commit harmful procedural error by designating a hearing official to hear
the appellant’s oral response because, even if this were error, the appellant failed
to show that she was prejudiced by giving her oral response to the hearing
15
official, rather than the deciding official. See Salter v. Department of the
Treasury, 92 M.S.P.R. 355, ¶ 7 (2002) (stating that harmful error cannot be
presumed and that, to show harmful error, an appellant must prove that any
procedural error substantially prejudiced her rights by possibly affecting the
agency’s decision).
The penalty of removal is reasonable.
Generally, removal for physical inability to perform the essential functions
of a position promotes the efficiency of the service. Brown v. Department of the
Interior, 121 M.S.P.R. 205, ¶ 17 (2014), overruled on other grounds by Haas,
2022 MSPB 36, ¶ 14. An action taken for physical inability to perform is
considered a nondisciplinary removal, and the appropriate standard in assessing
the chosen penalty is whether it exceeded the tolerable limits of reasonableness.
Id., ¶ 18. Generally, when an employee cannot perform the essential functions of
her position, the Board must examine whether this is true with or without
reasonable accommodation and whether the agency has any vacant positions to
which it can assign the appellant within her restrictions. Id., ¶ 19.
In the initial decision, the administrative judge found that the appellant’s
removal was reasonable and promoted the efficiency of the service. ID at 17.
She explained that the hearing testimonies of the deciding and proposing
officials, as well as the appellant, established that the appellant could not perform
the essential duties of her position because of her medical condition and that there
were no other vacant positions at the same grade or pay level or below that met
her restrictions. Id. On review, the appellant argues that her removal was not
reasonable because the agency could have accommodated her by moving her to a
16
Mission Support position and could have provided her additional time to recover.8
PFR File, Tab 1 at 28.
Although the appellant disagrees with administrative judge’s finding that
the penalty was reasonable, she has not alleged that she could perform the
essential duties of her position. Moreover, she has not cited any evidence in the
record to establish that there was a vacant funded position to which she could
have been reassigned. Therefore, we find no basis to disturb the administrative
judge’s well-reasoned determination that removal did not exceed the tolerable
limits of reasonableness. Brown, 121 M.S.P.R. 205, ¶¶ 17, 22.
NOTICE OF APPEAL RIGHTS9
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
8 The appellant also argues on review that the penalty was not reasonable because the
agency substituted the deciding official with another agency official and because the
hearing official did not provide a summary and recommendation to the deciding official.
PFR File, Tab 1 at 28. These arguments, which we addressed above and found to be
without merit, do not pertain to the reasonableness of the penalty. See supra ¶¶ 28-29.
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
17
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
18
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
19
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a 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.
20
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Arellano_Rosa_I_DA-0752-17-0230-I-1_Final_Order.pdf | 2024-01-24 | ROSA I. ARELLANO v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-17-0230-I-1, January 24, 2024 | DA-0752-17-0230-I-1 | NP |
2,503 | https://www.mspb.gov/decisions/nonprecedential/Boarman_Sally_E_PH-752S-22-0223-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SALLY E. BOARMAN,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-752S-22-0223-I-1
DATE: January 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sally E. Boarman , Baltimore, Maryland, pro se.
Jaymin Parekh , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision,
which dismissed for lack of jurisdiction her appeal of a 7-day suspension,
which she argued was in retaliation for filing an equal employment opportunity
complaint and resulted from the agency’s failure to accommodate her alleged
disability. On petition for review, the appellant argues that, after 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 issued the initial decision, the agency suspended her for
14 days. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant argues that new evidence, in the form of a
proposed 14-day suspension, shows that the Board now has jurisdiction over her
appeal. Petition for Review (PFR) File, Tab 1 at 4-5, 8-10. Generally, the Board
will not consider arguments 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. Lovoy v. Department of Health and Human
Services, 94 M.S.P.R. 571, ¶ 30 (2003). Here, the appellant could not have
known of the proposed suspension at the time the record closed below, because
the agency issued it 6 days after the initial decision was issued in this matter.
PFR File, Tab 1 at 9; Initial Appeal File (IAF), Tab 5, Initial Decision at 1.
Further, the appellant’s new argument implicates the Board’s jurisdiction over
this appeal, and the issue of jurisdiction is always before the Board and may be
raised any time during a Board proceeding. Lovoy, 94 M.S.P.R. 571, ¶ 30. 2
The proposed 14 -day suspension is based on alleged instances of failure to
follow time and attendance/telework procedures that occurred after the appellant
served the underlying 7 -day suspension at issue in the instant appeal. Id. at 9-10;
IAF, Tab 1 at 10-12. Assuming the agency has issued a decision to suspend the
appellant, we will not combine these two suspensions for jurisdictional purposes
because, although there is overlap between the charges, the specifications
supporting those charges are based on separate events and circumstances. See
Edwards v. U.S. Postal Service , 112 M.S.P.R. 196, ¶ 8 (2009) (recognizing that
the Board has left open the possibility that non-consecutive suspensions may be
combined when (1) the suspensions are based on the same reason, and (2) there is
evidence that the agency attempted to circumvent Board jurisdiction by imposing
multiple suspensions of 14 days or less); see also Jennings v. Merit Systems
Protection Board , 59 F.3d 159, 161 (Fed. Cir. 1995) (“Because these two
suspensions arose out of separate events and circumstances, they cannot be
combined to constitute a single suspension for the purposes of determining
jurisdiction.”); Bradley v. U.S. Postal Service , 96 M.S.P.R. 539, ¶¶ 8, 17 (2004)
(explaining that an appellant’s 12-day placement in off-duty status and
subsequent 14-day suspension arose from separate events and circumstances, and
thus the two actions could not be combined for jurisdictional purposes).
Therefore, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.8 | Boarman_Sally_E_PH-752S-22-0223-I-1_Final_Order.pdf | 2024-01-24 | SALLY E. BOARMAN v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-752S-22-0223-I-1, January 24, 2024 | PH-752S-22-0223-I-1 | NP |
2,504 | https://www.mspb.gov/decisions/nonprecedential/Kuhlmann_Kerri_S_DC-1221-17-0437-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KERRI S. KUHLMANN,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
DC-1221-17-0437-W-1
DATE: January 23, 2024
Kerri S. Kuhlmann , Arlington, Virginia, pro se.
Rolando Valdez and Matthew Babington , 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
denied her request for corrective 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Kuhlmann_Kerri_S_DC-1221-17-0437-W-1_Final_Order.pdf | 2024-01-23 | KERRI S. KUHLMANN v. DEPARTMENT OF LABOR, MSPB Docket No. DC-1221-17-0437-W-1, January 23, 2024 | DC-1221-17-0437-W-1 | NP |
2,505 | https://www.mspb.gov/decisions/nonprecedential/Belgum_ChristineDE-0752-17-0120-A-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTINE BELGUM,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DE-0752-17-0120-A-1
DATE: January 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Hartley David Alley , Esquire, San Antonio, Texas, for the appellant.
Deborah M. Levine , Esquire, Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review of the addendum initial decision,
which ordered the agency to pay the appellant $72,501.66 in attorney fees and
costs. For the reasons discussed below, we GRANT the agency’s petition for
review. Except as expressly MODIFIED by this Final Order to adjust the
reasonable hourly rate of attorney fees, we AFFIRM the initial decision.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant filed a timely appeal of the agency’s decision to remove her
from Federal service, effective December 13, 2016. Belgum v. U.S. Postal
Service, MSPB Docket No. DE-0752-17-0120-I-2, Tab 46, Initial Decision
(I-2 ID) at 1 (Dec. 12, 2017). The appellant, a member of the United Postmasters
and Managers of America (UPMA), was represented in the appeal by private
counsel obtained by the UPMA. Addendum Petition for Review File (APFR)
File, Tab 16 at 9. The administrative judge reversed the appellant’s removal on
due process grounds. I-2 ID at 1, 13, 17. The initial decision became the final
decision of the Board after neither party filed a petition for review. I-2 ID at 20.
The appellant filed a petition for attorney fees, requesting $64,725 in
attorney, paralegal, and travel fees, and $7,129.08 in costs, for a total of
$71,854.08, incurred in connection with her removal appeal. Belgum v. U.S.
Postal Service, MSPB Docket No. DE-0752-17-0120-A-1, Attorney Fees File
(AFF), Tab 1 at 4, 28, 30. She requested an additional $3,600 in fees for work
her attorney performed on her attorney fee motion. AFF, Tab 5 at 4, 11. In
support of her motion, the appellant submitted a copy of the December 22, 2016
fee agreement that she entered into with her attorney, reflecting an agreed upon
rate of $400 per hour for his work, $150 per hour for his travel time, and $150 per
hour for paralegal work. AFF, Tab 2 at 4, Tab 7 at 4-9. She also submitted
declarations under penalty of perjury from her attorney and other attorneys
attesting to the reasonableness of those rates. AFF, Tab 1 at 14-15, Tab 2 at 5-8.
The administrative judge issued an addendum initial decision granting the
appellant’s motion for attorney fees and expenses for $72,501.66. AFF, Tab 15,
Addendum Initial Decision (AID) at 1, 12. The administrative judge found that
the appellant was the prevailing party and that fees were warranted in the interest
of justice because the agency’s act of depriving the appellant of her property
interest without minimum due process was clearly without merit. AID at 3-4. He
found that she was entitled to attorney fees because there was no double recovery2
or fee splitting issue concerning her representation by a private UPMA -retained
attorney. AID at 8-9. He also determined that, even though the appellant’s
attorney was private retained counsel for the UPMA, he was entitled to market
rate fees. AID at 8. He further found that the hourly rates requested were
reasonable because they were the rates identified in the December 2016 retainer
agreement and the appellant showed that they were commensurate with the local
prevailing rate for similar services in Denver, Colorado, which the administrative
judge determined was the community in which her attorney ordinarily practiced.
AID at 5-7. He calculated the lodestar at 158.5 hours at $400 per hour for
attorney work, 30.5 hours of attorney travel at $150 per hour, and 2.8 hours at
$125 per hour for paralegal work, and awarded her fees in the amount of $68,325.
AID at 9-10. Finally, he found that some of the appellant’s claimed expenses
were not recoverable and thus, reduced her allowable costs to $4,176.66. AID
at 11-12.
The agency has filed a petition for review challenging the administrative
judge’s decision to find the appellant’s requested attorney hourly rate of $400
reasonable. APFR File, Tab 3 at 5-17. The appellant has filed a response. APFR
File, Tab 8.
Because the record appeared to be inadequately developed, the Acting
Clerk of the Board ordered the appellant to submit any agreements between the
appellant and the UPMA regarding her legal representation, and any agreements
between the appellant’s attorney and the UPMA as to the legal representation of
the appellant in particular and members of the UPMA in general, to the extent
that they existed. APFR File, Tab 9 at 1-3. The Acting Clerk of the Board also
afforded the appellant an opportunity to provide argument and evidence as to
which agreement most accurately reflected the maximum reasonable hourly rate
and why, if the rates included therein were different from those reflected in the
December 2016 retainer agreement. Id. at 3. The appellant objected to the show
cause order, but nonetheless provided a copy of her agreement with the UPMA3
and an agreement between her attorney and the UPMA regarding the legal
representation of UPMA members in general. APFR File, Tab 14 at 4-18, Tab 16
at 7-16. The appellant filed the agreements with the Board by mail and requested
that they be placed under seal, in accordance with the administrative judge’s
Protective Order entered into the record in the initial appeal. APFR File, Tab 14
at 5; Belgum v. U.S. Postal Service , MSPB Docket No. DE-0752-17-0120-I-1,
Initial Appeal File (IAF), Tabs 12-13. The agency submitted a response,
attaching the legal representation agreements, and filed it with the Board’s
e-Appeal Online Repository. APFR File, Tab 16. The appellant submitted a
reply, arguing that the agency and the Board violated the terms of the Protective
Order by allowing the documents to appear in the “open record.” APFR File,
Tab 17 at 4-9. The agency submitted a further reply. APFR File, Tab 18.
DISCUSSION OF ARGUMENTS ON REVIEW
We find no merit to the appellant’s objection to the Acting Clerk of the Board’s
order and deny her request to file the legal representation agreements under seal.
The appellant raises two primary challenges in her response to the Acting
Clerk of the Board’s show cause order. First, the appellant argues that the Acting
Clerk exceeded her authority because, in ordering the appellant to submit the
legal representation agreements, the Acting Clerk effectively overruled the
administrative judge’s decision to deny the agency’s discovery request
concerning those documents, which, she argues, the Office of the Clerk of the
Board is prohibited from doing in the absence of a Board quorum. APFR File,
Tab 14 at 5-6. The administrative judge denied the agency’s request to reopen
discovery because it was procedurally defective and untimely. AFF, Tab 14.
That is an appropriate basis upon which to deny a discovery request. See Golden
v. U.S. Postal Service , 60 M.S.P.R. 268, 271 n.* (1994) (finding that the
administrative judge properly dismissed the appellant’s motion to compel
discovery because it was untimely). Nonetheless, the Board is obligated to
comply with its statutory duty that only reasonable attorney fees are awarded.4
Kling v. Department of Justice , 2 M.S.P.R. 464, 470 (1980); see 5 U.S.C.
§ 7701(g)(1). The Board has the authority to “order any Federal agency . . . to
comply with any order” related to its adjudication of “all matters within [its]
jurisdiction.” 5 U.S.C. § 1204(a)(1)-(2). In considering petitions for review, the
Board may issue a decision, hear oral arguments, require briefing, remand for
further adjudication, or take any other action necessary for the final disposition of
the case. 5 C.F.R. § 1201.117(a). The Board has delegated to the Office of the
Clerk of the Board the authority to sign and issue orders to show cause. Morris v.
Department of the Navy , 123 M.S.P.R. 662, ¶ 11 n.8 (2016); MSPB Organization
Functions and Delegations of Authority at 8-9 (April 2011), https://
www.mspb.gov/foia/files/
Organization_Functions_and_Delegations_of_Authority_1279407.pdf (last visited
January 23, 2024).
The appellant also argues that the legal representation agreements are
covered by the Protective Order and should be filed under seal. APFR File,
Tab 14 at 5. Pursuant to the Protective Order, the administrative judge agreed to
seal, upon request, any documents, which current or former employees “would
reasonably expect the employer to maintain as private,” such as “personal data
identifiers, medical and health information,” and employment records. IAF,
Tab 12 at 4, 6, Tab 13 at 3. We find that the legal agreements do not fall into the
category of documents discussed by the Protective Order. Moreover, contrary to
the appellant’s assertion, the documents are not “open record[s]”; they are not
available to the public by e -Appeal Online or through the Board’s website. See
Doe v. Pension Benefit Guaranty Corporation , 117 M.S.P.R. 579, ¶ 23 n.5
(2012). Accordingly, we deny the appellant’s request to seal all or part of the
record.
The appellant’s attorney is entitled to $56,651.66 in fees and expenses .
To establish entitlement to an award of attorney fees under 5 U.S.C.
§ 7701(g)(1), an appellant must show the following elements: (1) she was the5
prevailing party; (2) she 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). The administrative judge found that the
appellant met the first three elements. AID at 3-4. These findings are supported,
well-reasoned, and unchallenged on review. Id. Accordingly, we decline to
revisit them here and focus on the agency’s challenges to the administrative
judge’s finding regarding the final element—the reasonableness of the fees
claimed.
In determining the reasonable fee award, the Board first calculates the
“lodestar”—the product of the reasonable hourly rate multiplied by the hours
reasonably spent working on the matter. Driscoll, 116 M.S.P.R. 662, ¶ 10. To
establish the appropriate hourly rate, an attorney fee petition must contain a copy
of a fee agreement, if any, as well as evidence of the attorney’s customary billing
rate for similar work. Hart v. Department of Transportation , 115 M.S.P.R. 10,
¶ 14 (2010). When it is agreed that a specific fee be paid to an attorney for legal
services rendered on behalf of an appellant in a Board case, the Board presumes
that the amount agreed upon represents the maximum reasonable fee that may be
awarded. Caros v. Department of Homeland Security , 122 M.S.P.R. 231, ¶ 7
(2015). This presumption is rebuttable by convincing evidence that the agreed
upon rate was not based on marketplace considerations and that the attorney’s
rate for similar work was customarily higher, or by showing that he had agreed to
such a rate only because of the employee’s reduced ability to pay and that his
customary fee for similar work was significantly higher. Id.
The appellant’s attorney is entitled to market rate fees.
The agency reasserts that there is an outstanding question whether the
Board is prohibited from awarding the appellant’s attorney fees based on his
relationship with the UPMA. APFR File, Tab 3 at 12-15. When a union or
related entity retains a private attorney on an appellant’s behalf, the union or6
entity is viewed as a party standing in the appellant’s shoes, and attorney fees
may be awarded. Jennings v. Department of the Navy , 45 M.S.P.R. 615, 616 n.1
(1990). Moreover, as the administrative judge properly found, private counsel
retained by a union or similar entity are generally entitled to market rate fees if
there is no impermissible fee splitting arrangement. AID at 8; see Thompson v.
Department of Justice , 115 M.S.P.R. 564, ¶¶ 10-13 (2010). The appellant is not
limited to recovery of her actual costs of $6,000. See Thompson, 115 M.S.P.R.
564, ¶ 10.
We agree with the administrative judge that there is no indication that the
appellant’s attorney would be engaging in impermissible fee splitting with the
UPMA. AID at 8-9; see Model Rules of Prof’l Conduct R. 5.4 (2021) (finding
that attorneys are generally prohibited from sharing fees with non -attorneys, or
forming a business entity controlled, even in part, by non-attorneys). As reflected
in the UPMA attorney legal representation agreement, the parties do not have a
fee-splitting arrangement. APFR File, Tab 16 at 10-16. Rather, the appellant’s
attorney agreed to refund the UPMA for fees and expenses paid to him in
connection with his representation of a UPMA member. Id. at 14; AFF, Tab 5
at 7, Tab 7 at 7, Tab 11 at 3. His reimbursement obligations are distinct from a
fee sharing arrangement, and they do not pose the ethical dilemma of fee splitting
that may otherwise prevent him from receiving market rate attorney fees. See
Sailor-Nimocks v. Office of Personnel Management , 66 M.S.P.R. 438, 441 -43
(1995) (finding no ethical dilemma regarding fee -sharing when the attorney
agreed to reimburse her union employer for the expenses incurred and the union
would not profit from the attorney fee award), abrogated on other grounds by
Raney v. Federal Bureau of Prisons , 222 F.3d 927 (Fed. Cir. 2000). Accordingly,
we find that the appellant’s attorney is entitled to market rate attorney fees.7
The maximum reasonable rate for the work performed by the appellant’s
attorney is $300 per hour.
Regarding the reasonableness of the attorney’s hourly rate, the
administrative judge found that the requested hourly rate of $400 for attorney
work performed was reasonable. AID at 5-6. In so finding, he concluded that,
based on the December 2016 retainer agreement, $400 was the maximum
reasonable hourly rate. AID at 5-6. The administrative judge did not have the
benefit of reviewing the UPMA-attorney representation agreement when he made
that finding. However, we consider the issue of which agreement most accurately
reflects the maximum reasonable hourly rate because the parties have had an
opportunity to fully address this issue on review and because, as previously
noted, the Board is obligated to comply with its statutory duty that only
reasonable attorney fees are awarded. APFR File, Tabs 9, 14, 16-18; see Kling,
2 M.S.P.R. at 470.
Pursuant to the UPMA -attorney representation agreement, the UPMA
agreed to pay the appellant’s attorney an hourly rate of $300 for his work
performed in all covered appeals, which apparently includes removal appeals,
such as the underlying action at issue here.2 APFR File, Tab 16 at 9, 10-12. The
appellant’s attorney signed the UPMA -attorney representation agreement in
August 2016, about 5 months prior to signing the December 22, 2016 fee
agreement. Id. at 16; IAF, Tab 7 at 9. The UPMA -attorney representation
agreement stated that it would “commence on November 1, 2016, and remain in
effect until April 30, 2019.” APFR File, Tab 16 at 15. Further, the agreement
applied to all covered actions, indicating that $300 was the customary rate the
appellant’s attorney charged the UPMA for representing members, such as the
appellant, in removal appeals before the Board, such as the underlying action
2 Pursuant to the December 2016 retainer agreement, the appellant agreed to pay her
attorney hourly fees of $400 per hour for services not covered by the UPMA. AFF,
Tab 7 at 6-7. However, there is no indication that any of the fees and expenses incurred
in connection with her removal appeal were for services not covered by the UPMA.
APFR File, Tab 16 at 11-12.8
here. Id. at 11-12. The record reflects that, on December 20, 2016, the appellant
signed a UPMA Designation of Representation and Subscription to Appeal form
designating the UPMA legal defense representative as her representative and
authorizing him to proceed with a Board appeal on her behalf. Id. at 9.
Based on the foregoing, we find the UPMA attorney legal representation
agreement covered the legal services at issue here, and that it created a rebuttable
presumption that a $300 hourly rate represents the maximum reasonable hourly
rate which may be awarded. See Caros, 122 M.S.P.R. 231, ¶ 7. We turn next to
the question of whether the appellant has rebutted that presumption by convincing
evidence by showing that the agreed upon rate was not based on marketplace
considerations and that the attorney’s rate for similar work was customarily
higher, or by showing that he had agreed to such a rate only because of the
employee’s reduced ability to pay and that his customary fee for similar work was
significantly higher. Id.
In deciding this issue, we consider the additional sworn statement that the
appellant’s attorney submitted on review, in which he reasserts that he was
entitled to the $400 hourly rate based on his experience and expertise in this field
and alleges that, in two initial decisions, the Board’s administrative judges found
$400 to be his customary and reasonable hourly rate. APFR File, Tab 14 at 8-15,
18. We also consider the December 2016 retainer agreement as evidence that the
appellant’s attorney may charge higher rates to individual clients.3 IAF, Tab 7
at 9. In addition, we consider the declarations under penalty of perjury from two
3 The agency argues that the December 2016 fee agreement is fraudulent. APFR File,
Tab 3 at 6-8. The agency speculates that the appellant’s attorney falsely represented to
the Board that the fee agreement was from 2016, when it clearly related to the parties’
2018 engagement because it discussed a claim for suspension without pay that did not
arise until 2018. Id. at 7-8. The agency raises this argument for the first time on
review. The Board will not consider an argument raised for the first time in a petition
for review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980). The agency has not made this showing; therefore,
we decline to consider this argument.9
attorneys that the appellant submitted to support the requested $400 hourly rate.
AFF, Tab 2 at 5-8.
Even if this evidence showed that the customary hourly rate or fees for the
appellant’s attorney were generally higher, the appellant has not met her burden
of rebutting the presumed reasonableness of the agreed upon hourly rate of $300.
The appellant has not provided any argument or evidence indicating that her
attorney agreed to that reduced fee based on her or the UPMA’s ability to pay, for
example. Cf. Ishikawa v. Department of Labor , 26 M.S.P.R. 258, 260 (1985)
(finding that the appellant’s attorney successfully rebutted the presumption that
the agreed upon rate was the maximum fee awardable by showing that she had
agreed upon that rate only because of the employee’s reduced ability to pay and
that her customary fee for similar work was significantly higher); see generally
Caros, 122 M.S.P.R. 231, ¶ 7. Moreover, the appellant has failed to show that the
agreed upon hourly rate of $300 was not based on marketplace considerations.
See Caros, 122 M.S.P.R. 231, ¶ 7. As stated by our reviewing court, a contract
for services that contains an hourly rate is evidence of the local market rate
“because the client freely agreed to pay the rate[] by entering into the contract.”
Willis v. U.S. Postal Service , 245 F.3d 1333, 1340 (Fed. Cir. 2001). While the
initial decisions referred to by the appellant on review may support her attorney’s
allegation that his rate was generally higher, they are not binding precedent on
the Board. See Roche v. Department of Transportation , 110 M.S.P.R. 286, ¶ 13
(2008) (stating that the Board’s initial decisions are not precedential), aff’d,
596 F.3d 1375 (Fed. Cir. 2010).
While the appellant has provided declarations under penalty of perjury
from two attorneys in support of the requested $400 hourly rate, we find this
evidence, even coupled with evidence relating to the appellant’s attorney’s
customary rate, falls short of the convincing evidence needed to rebut the
reasonableness of the agreed upon $300 hourly rate. As noted by the
administrative judge, the relevant legal market for setting the hourly rate is the10
community in which an attorney ordinarily practices and not the geographic
location of a Board office. Id.; AID at 7; see 5 C.F.R. § 1201.203(a)(3);
64 Fed. Reg. 72040, 72041 (Dec. 23, 1999) (explaining that amendments to
5 C.F.R. § 1201.203(a)(3) were intended to ensure that an attorney received the
billing rate for location where he ordinarily practices and not based on the
geographic location where the hearing was held). The administrative judge found
Denver, Colorado to be the relevant geographic community and the parties have
not provided a basis for disturbing this finding on review. AID at 7-8. One of
the declarations, submitted from an attorney who is licensed in Texas and
maintains offices in San Antonio, Texas, states that “rates of up to $650” are
reasonable for representation in appeals before the Board’s offices. AFF, Tab 2
at 7-8. This declaration does not shed light on the customary market rate for
Denver, Colorado, and is therefore unpersuasive.
The second declaration, submitted from an attorney who maintains offices
in Windsor, Colorado, also appears to describe billing practices in relation to the
geographic location of Board offices. AFF, Tab 2 at 5-6. The attorney states,
among other things, that “billing rates of $400.00 per hour for a qualified attorney
and $175.00 per hour for paralegal work are customary and reasonable rates for
representation of [F]ederal employees in appeals of adverse actions brought
before the [Board]’s . . . Denver Field Office, the Dallas Regional Office, and the
Atlanta Regional Office.” Id. at 6. Even if this attorney’s declaration could be
construed as reflecting a $400 per hour customary rate for the Denver, Colorado
community, it is insufficient, even coupled with evidence regarding the
customary rate of the appellant’s attorney, to rebut the presumed reasonableness
of the $300 hourly rate. “[I]n the context of a different but comparable fee
recovery statute,” Willis, 245 F.3d at 1341, our reviewing court stated that “the
trial court should demand adequate proof from individuals familiar with the
market of the community billing rate charged by attorney of equivalent skill and
experience performing services of similar complexity,” Raney, 222 F.3d at 938.11
The declaration at issue provides no indication that that attorney has knowledge
of the work the appellant’s attorney performed in this appeal, or any clear
indication that the $400 per hour rate applies to services of similar complexity to
those provided by the appellant’s attorney in the instant matter. We also note
that, in the declaration, the attorney does not indicate whether he has prevailed on
a fee petition before the Board and, if so, what hourly rate was awarded. See
Willis, 245 F.3d 1333, 1340 (noting that evidence indicating that the appellant’s
attorneys’ rates were found reasonable “lends credence to the assertions in their
affidavits that their rates were indeed average”).
Accordingly, we find that the appropriate rate for calculating the lodestar is
$300 per hour for the work performed by the appellant’s attorney, and modify the
initial decision in this regard. The parties do not dispute the administrative
judge’s finding that the hourly rates of $150 for travel time and $125 for
paralegal work were reasonable, and we discern no basis for altering those
findings. AID at 9.
The lodestar must be recalculated.
As the administrative judge explained, AID at 9, the burden of establishing
the reasonableness of the hours claimed in an attorney fee request is on the party
moving for an award of attorney fees, Driscoll, 116 M.S.P.R. 662, ¶ 11. The
administrative judge found that the appellant claimed 158.5 hours for attorney
work (149.5 hours plus an additional 9 hours litigating the motion for attorney
fees), 30.5 hours of travel time, and 2.8 hours of paralegal time. AID at 9; AFF,
Tab 1 at 28, Tab 5 at 11. Although the agency argued that a reduction in the
hours was warranted, the administrative judge found that the claimed hours were
reasonable and that no reduction was warranted. AID at 10. The parties do not
challenge this finding on review; therefore, we decline to revisit it.
As a result, we multiply the claimed attorney time, 158.5 hours, by the
lowered reasonable rate of $300 per hour ($47,550); the claimed travel time,
30.5 hours, by the reasonable travel rate, $150 per hour ($4,575); and the claimed12
paralegal time, 2.8 hours, by the paralegal rate, $125 per hour ($350); for a total
of $52,475. AID at 9; see Driscoll, 116 M.S.P.R. 662, ¶ 10. The administrative
judge found no basis for adjusting the lodestar, and we discern none. AID at 10;
see e.g., Driscoll, 116 M.S.P.R. 662, ¶ 10 (providing that the lodestar amount
may be adjusted upwards or downwards based on various considerations,
including the results obtained). Consequently, we reduce the appellant’s fees
from $68,325, to $52,475 in fees, and modify the initial decision accordingly.4
The administrative judge found that the appellant was entitled to $4,176.66
in compensable expenses. AID at 10-12. As the parties do not challenge this
finding, we decline to reconsider it on review. Accordingly, we find that the
appellant is entitled to $52,475 in fees, and to $4,176.66 in compensable
expenses, for a total award of $56,651.66.
ORDER
We ORDER the agency to pay the attorney of record $56,651.66 in fees.
The agency must complete this action no later than 20 days after the date of this
decision. Title 5 of the United States Code, section 1204(a)(2) (5 U.S.C.
§ 1204(a)(2)).
We also ORDER the agency to tell the appellant and the attorney promptly
in writing when it believes it has fully carried out the Board’s Order and of the
actions it has taken to carry out the Board’s Order. We ORDER the appellant and
the attorney to provide all necessary information that the agency requests to help
it carry out the Board’s Order. The appellant and the attorney, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant or the attorney
that it has fully carried out the Board’s Order, the appellant or the attorney may
4 Neither party has challenged the administrative judge’s decision not to adjust the
lodestar. AID at 10; see generally Driscoll, 116 M.S.P.R. 662, ¶¶ 10, 16 (explaining
that it may be appropriate to reduce the lodestar to reflect a party’s failure to obtain all
the relief he requested).13
file a petition for enforcement with the office that issued the initial decision on
this appeal, if the appellant or the attorney believes that the agency did not fully
carry out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorney believes the agency has not fully carried out the Board’s
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.14
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,15
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 16
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 17
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.18 | Belgum_ChristineDE-0752-17-0120-A-1_Final_Order.pdf | 2024-01-23 | CHRISTINE BELGUM v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DE-0752-17-0120-A-1, January 23, 2024 | DE-0752-17-0120-A-1 | NP |
2,506 | https://www.mspb.gov/decisions/nonprecedential/Jones_Louvada_W_DA-0752-21-0072-I-4__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LOUVADA JONES,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DA-0752-21-0072-I-4
DATE: January 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Esquire, Atlanta, Georgia, for the appellant.
Kimya Jones , Esquire, and James C. Bush , Esquire, Washington, D.C., for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2 The appellant retired from the agency in March 2019 and thereafter filed the
present appeal asserting that her retirement was involuntary. Jones v. Department
of Justice, MSPB Docket No. DA-0752-21-0072-I-1, Initial Appeal File, Tab 1;
Jones v. Department of Justice , MSPB Docket No. DA-0752-21-0072-I-4, Appeal
File (I-4 AF), Tab 5 at 27. In a February 24, 2023 initial decision, the
administrative judge dismissed the appeal without a hearing for lack of
jurisdiction. I-4 AF, Tab 9, Initial Decision (ID). The initial decision informed
the appellant that it would become final on March 31, 2023, unless a petition for
review was filed by that date. ID at 11. The initial decision also informed the
appellant how and where to file a petition for review. ID at 12. The appellant
filed a petition for review on April 4, 2023. Petition for Review (PFR) File,
Tab 3. The agency filed a response, to which the appellant replied. PFR File,
Tabs 5, 8.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the date of issuance,
within 30 days after the date she received the initial decision. 5 C.F.R.
§ 1201.114(e). In the interest of judicial efficiency and fairness, the Board will
not waive its timeliness requirements in the absence of good cause shown,
regardless of how minimal the delay. Mitchell v. Broadcasting Board of
Governors, 107 M.S.P.R. 8, ¶ 6 (2007). To determine whether an appellant has
shown good cause, the Board will consider the length of the delay, the
reasonableness of an appellant’s excuse and her showing of due diligence,
whether she is proceeding pro se, and whether she has presented evidence of the
existence of circumstances beyond her control that affected her ability to comply
with the time limits or of unavoidable casualty or misfortune which similarly2
shows a causal relationship to her inability to timely file her petition.
Moorman v. Department of the Army , 68 M.S.P.R. 60, 62-63 (1995), aff’d,
79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶4 We find that the appellant did not establish good cause for her delay. The
appellant, a registered e-filer who is deemed to have received the initial decision
on its date of issuance, 5 C.F.R. § 1201.14(m)(2), filed her April 4, 2023 petition
for review 4 days past its March 31, 2023 due date. T he Office of the Clerk of
the Board issued a petition for review acknowledgment letter informing the
appellant that her petition was untimely filed and affording her the opportunity to
file, by April 20, 2023, a motion to waive the time limit for good cause. PFR
File, Tab 4 at 1-2. The appellant, who obtained representation before March 31,
2023, and was represented throughout the petition for review proceedings, PFR
File, Tab 1 at 4, Tab 8, filed her motion to waive the time limit over 1 month past
the deadline, with no explanation for that delay, PFR File, Tab 6.2 We thus need
not consider the appellant’s motion, the untimely filing of which demonstrates her
lack of due diligence in filing her petition for review. Alford v. Office of
Personnel Management , 108 M.S.P.R. 414, ¶¶ 8-9, 11 (2008).
¶5 Even if we were to consider the appellant’s motion, the outcome would be
the same. The Board has dismissed petitions for review filed as little as 1 day
late absent showings of good cause. Pangelinan v. Department of Homeland
Security, 104 M.S.P.R. 108, ¶ 9 (2006); Lands v. Department of the Air Force ,
95 M.S.P.R. 593, ¶¶ 2-3, 6-8 (2004). The appellant’s motion consists of a
declaration from her representative asserting, among other things, that the
appellant attempted to e-file her petition for review on its due date but that it
would not go through. PFR File, Tab 6 at 2. The representative also claims the
2 The appellant asserts that she timely filed her motion in response to the Office of the
Clerk of the Board’s acknowledgment letter on April 19, 2023. PFR File, Tab 8 at 6.
But the appellant’s motion, though purportedly signed by her representative on
April 19, 2023, was not filed until May 22, 2023. PFR File, Tab 6. There is no
indication that the appellant attempted to file her motion any earlier, and her claim that
she timely filed her motion appears inaccurate. 3
appellant then emailed her petition to the Dallas Regional Office, which
purportedly responded that it was not the correct recipient. Id. The
representative claims that the appellant then requested an extension of time until
“it was figured out” and that the appellant was finally able to file through the
“proper avenue.” Id. Lastly, the representative asserts that she personally did not
ask the Board for an extension of time to file the petition for review before its
deadline because she “mistakenly thought it was timely.” PFR File, Tab 6 at 1.
¶6 Even if true, these explanations do not demonstrate good cause. The initial
decision explained under the heading “ NOTICE TO APPELLANT ,” that it “will
become final on March 31, 2023 , unless a petition for review is filed by that
date.” ID at 11 (emphases in original). The initial decision further explained
that, with an exception not relevant here, March 31, 2023, was an “important
date” because it was the “last day on which [she could] file a petition for review
with the Board.” Id. To the extent the appellant attributes her delay in filing her
petition for review to her attorney’s misunderstanding of its due date, the
appellant is responsible for the errors of her chosen representative, Sofio v.
Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981), and her inability to follow
explicit filing instructions in the initial decision does not constitute good cause
for her delay, Groesbeck v. Office of Personnel Management , 109 M.S.P.R. 1, ¶ 4
(2008).
¶7 Similarly, to the extent the appellant attributes her delay to the time it took
for her to discover the proper filing method after her purported e-filing issue and
the Dallas Regional Office’s alleged rejection of her petition, she does not explain
why she did not follow the instructions in the initial decision. Those instructions
stated that a petition for review must be filed with the Clerk of the Board,
provided the Clerk’s address, and described permissible methods of filing,
including by facsimile—a method at the appellant’s disposal by which she
ultimately filed her petition for review. ID at 12; PFR File, Tab 3 at 1. Again,4
the appellant’s inability to follow explicit instructions in the initial decision does
not excuse her delay.3 Groesbeck, 109 M.S.P.R. 1, ¶ 4.
¶8 Accordingly, we dismiss the petition for review as untimely filed without
good cause shown. This is the final decision of the Merit Systems Protection
Board regarding the timeliness of the petition for review. The initial decision
remains the final decision of the Board regarding the dismissal of the appeal for
lack of jurisdiction.
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
3 We observe that, in apparent contradiction of her representative’s assertions that the
Dallas Regional Office rejected the appellant’s submission of her petition and that the
appellant requested an extension of time to determine the proper filing method and
finally submitted her petition through the “proper avenue,” the appellant ultimately
filed her untimely petition with the Dallas Regional Office, which received the
document. PFR File, Tab 3 at 1, Tab 6 at 2.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain6
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 7
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.9 | Jones_Louvada_W_DA-0752-21-0072-I-4__Final_Order.pdf | 2024-01-23 | LOUVADA JONES v. DEPARTMENT OF JUSTICE, MSPB Docket No. DA-0752-21-0072-I-4, January 23, 2024 | DA-0752-21-0072-I-4 | NP |
2,507 | https://www.mspb.gov/decisions/nonprecedential/Agelli_MariaDC-0752-17-0082-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIA AGELLI,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-0752-17-0082-I-2
DATE: January 23, 2024
Maria Agelli , Bethesda, Maryland, pro se.
Roman Lesiw , Bethesda, Maryland, for the agency.
Kathleen Mee , 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 removal 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Agelli_MariaDC-0752-17-0082-I-2_Final_Order.pdf | 2024-01-23 | MARIA AGELLI v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-0752-17-0082-I-2, January 23, 2024 | DC-0752-17-0082-I-2 | NP |
2,508 | https://www.mspb.gov/decisions/nonprecedential/Osorio_Mariclar_V_SF-1221-19-0313-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARICLAR V. OSORIO,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-1221-19-0313-W-1
DATE: January 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
L
inda W. Smith , North Las Vegas, Nevada, for the appellant.
Theodore M. Miller , Seattle, Washington, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal as untimely filed.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Upon our review of the procedural
history of the appeal, we find that adjudicatory efficiency is the appropriate basis
for dismissing the appeal. For the reasons stated below, we VACATE the initial
decision and DISMISS the appeal based on adjudicatory efficiency.
BACKGROUND
The appellant is employed as a nurse with the Veterans Health
Administration, Clinical Practices Clinic Base in Las Vegas, Nevada. Osorio v.
Department of Veterans Affairs , MSPB Docket No. SF-1221-19-0120-W-1,
Initial Appeal File (0120 IAF), Tab 9 at 10. She filed a complaint with the Office
of Special Counsel (OSC) alleging in her initial and subsequent submissions that
the agency had retaliated against her for making protected disclosures and
engaging in protected activity. 0120 IAF, Tab 3 at 47-51, 57, 61-72. In a letter
dated September 10, 2018, OSC informed the appellant that it made its final
determination to close her complaint. 0120 IAF, Tab 13 at 17. At that time, OSC
did not inform the appellant of her Board appeal rights.
On November 27, 2018, the appellant filed an IRA appeal with the Board.
0120 IAF, Tab 1. After affording the parties the opportunity to submit evidence
and argument, the administrative judge dismissed the appeal as untimely filed by
13 days in a March 12, 2019 initial decision. 0120 IAF Tab 17, Initial Decision.2
The appellant timely filed a petition for review of the initial decision.
0120 Petition for Review (PFR) File, Tab 1. In subsequent submissions, the
appellant filed new correspondence from OSC indicating that her case was
reopened to provide her with appeal rights on March 15, 2019, and closed on
March 18, 2019, which she asserted restarted the statutory filing period to seek
corrective action. 0120 PFR File, Tabs 2, 5.
Thereafter, the appellant filed the instant IRA appeal with the Board on
March 21, 2019. Osorio v. Department of Veterans Affairs , MSPB Docket
No. SF-1221-19-0313-W-1, Initial Appeal File (0313 IAF), Tab 1. After the
agency moved to dismiss the appeal as untimely filed, the administrative judge
ordered the appellant to file evidence and argument regarding the timeliness
issue, and the appellant responded. 0313 IAF, Tab 8, 23, 25. The administrative
judge dismissed the appeal as untimely filed by 127 days in a January 8, 2020
initial decision. 0313 IAF, Tab 26, Initial Decision (0313 ID). In so finding, the
administrative judge determined that the filing period began on September 10,
2018, when OSC terminated its investigation, not on March 18, 2019, when OSC
issued a new close-out letter after briefly reopening the appellant’s case. 0313
ID at 8. He observed that the Board has never held that a new statutory filing
period is triggered when, as here, OSC reopens a case to provide an appellant
with appeal rights. 0313 ID at 7.
The appellant has filed a petition for review of the initial decision. Osorio
v. Department of Veterans Affairs , MSPB Docket No. SF-1221-19-0313-W-1,
Petition for Review (0313 PFR) File, Tab 1. The agency has filed a response.
0313 PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
Here, the appellant filed the instant appeal pursuant to the March 18, 2019
OSC close-out letter she received after the March 12, 2019 initial decision was
issued. When an appellant files an appeal that raises claims raised in a prior3
appeal after the initial decision in the prior appeal has been issued, but before the
Board has acted on the appellant’s petition for review, it is appropriate to dismiss
the subsequent appeal on the grounds of adjudicatory efficiency. Bean v. U.S.
Postal Service, 120 M.S.P.R. 447, ¶ 5 (2013). In other words, the Board will
dismiss an appeal based on adjudicatory efficiency where an identity of issues
exists and the controlling issues in the appeal will be determined in a prior
appeal. Id.
Because OSC reopened and closed the appellant’s case for the singular
purpose of providing her with appeal rights, the prior and instant appeals concern
the same alleged protected disclosures and same alleged personnel actions.
We find that both appeals share an identity of issues and that the controlling
issues in the instant appeal will also be determined in the prior appeal. Thus, we
vacate the initial decision and dismiss the appeal based on adjudicatory
efficiency. As for the appellant’s arguments regarding her alleged protected
disclosures and alleged personnel actions, 0313 PFR File, Tab 1 at 7-19, they are
better directed to the prior appeal than to this one.
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 has updated the
notice of review rights included in final decisions. As indicated in the notice, the Board
cannot advise which option is most appropriate in any matter.4
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.9 | Osorio_Mariclar_V_SF-1221-19-0313-W-1_Final_Order.pdf | 2024-01-22 | MARICLAR V. OSORIO v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-19-0313-W-1, January 22, 2024 | SF-1221-19-0313-W-1 | NP |
2,509 | https://www.mspb.gov/decisions/nonprecedential/Osorio_Mariclar_V_SF-1221-19-0120-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARICLAR V. OSORIO,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-1221-19-0120-W-1
DATE: January 22, 2024
THIS ORDER IS NONPRECEDENTIAL1
Linda W. Smith , North Las Vegas, Nevada, for the appellant.
Theodore M. Miller , Seattle, Washington, 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 as untimely filed. For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Western Regional
Office for further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2The appellant is employed as a nurse with the Veterans Health
Administration, Clinical Practices Clinic Base in Las Vegas, Nevada. Initial
Appeal File (IAF), Tab 9 at 10. On April 12, 2017, she filed a complaint with the
Office of Special Counsel (OSC), alleging that the agency had retaliated against
her for making whistleblowing disclosures and engaging in protected activity.
IAF, Tab 3 at 47-51. In a letter dated September 10, 2018, OSC informed the
appellant that it had made its final determination to close her complaint. IAF,
Tab 13 at 17.
¶3On November 27, 2018, the appellant filed an IRA appeal with the Board.
IAF, Tab 1. After the agency moved to dismiss the appeal as untimely filed,
IAF, Tab 10, the administrative judge gave the parties an opportunity to provide
evidence and argument on the issue, IAF, Tab 12. The appellant responded that
her late filing should be excused because OSC failed to notify her of her Board
appeal rights and of the time limits for filing such an appeal, and OSC and her
employing agency deceived and tricked her in various ways. IAF, Tabs 13, 15.
¶4After considering the appellant’s response, the administrative judge issued
an initial decision dismissing the IRA appeal as untimely filed. IAF, Tab 17,
Initial Decision (ID) at 2-6. He found that, because the time limit for filing an
IRA appeal is triggered by notice from OSC that it has terminated its
investigation, and the record reflects that OSC had sent her this notice on
September 10, 2018, the appellant had submitted the appeal 13 days late. ID at 3.
He noted that, in its May 1, 20172 letter acknowledging receipt of her complaint,
OSC informed her of her right to seek corrective action with the Board and
referred her to the applicable Board regulations. Id. He stated that OSC is not
required to give the appellant notice of her appeal rights to the Board in order to
trigger the 60-day time limit for filing an IRA appeal and that the Board has no
2 In the initial decision, the administrative judge referred to OSC’s letter as its
May 17, 2017 letter, which appears to be a typographical error. ID at 3; IAF, Tab 3
at 14.2
authority to waive the statutory time limit for good cause shown. Id. He also
determined that the appellant did not establish that the doctrine of equitable
tolling should be applied in this case. ID at 4-6. As a result, he dismissed the
appeal. ID at 6.
¶5The appellant filed a petition for review, providing a copy of OSC Form 53
in which she circled the statement, “[i]f OSC makes a final determination to close
[a complainant’s] file, [she] will . . . be advised of any additional rights [she] may
have,” and an email, dated March 13, 2019, in which she requested that the Chief
of OSC’s San Francisco Bay Area Field Office provide clarification regarding
this statement on OSC Form 53. Petition for Review (PFR) File, Tab 1 at 6-8.
The appellant also filed a supplemental pleading, providing an email, dated
March 13, 2019, in which the Chief of the field office apologized for not sending
a “rights letter” and stated that her “rights to appeal” begin to run as of that day,
and a close-out letter, dated March 13, 2019, in which he informed her of her
right to seek corrective action from the Board through an IRA appeal within
65 days after the date of its letter. PFR File, Tab 2 at 6-8.
¶6The agency filed a response to the appellant’s petition for review, arguing,
among other things, that OSC’s position is not supported by existing law, i.e.,
it is contrary to the plain language of 5 U.S.C. § 1214(a)(3)(A), and that the
appellant provided no explanation as to why this new evidence could not have
been obtained during the proceedings below. PFR File, Tab 4 at 5-6.
The appellant filed a reply to the agency’s response, providing an email,
dated March 15, 2019, in which the Chief of the field office stated that he would
reopen the appellant’s complaint and provide her notice of her appeal rights, and
a revised close-out letter, dated March 18, 2019, in which he informed her that
her case, which he reopened on March 15, 2019, was closed and that she had the
right to seek corrective action from the Board through an IRA appeal within
65 days after the date of its letter. PFR File, Tab 5 at 6, 9-10. 3
DISCUSSION OF ARGUMENTS ON REVIEW
¶7Under 5 U.S.C. § 1214(a)(3)(A), an appellant may file an IRA appeal with
the Board once OSC closes its investigation into her complaint and no more than
60 days have elapsed since notification of the closure was provided to her. Kalus
v. Department of Homeland Security , 123 M.S.P.R. 226, ¶ 7 (2016). Under the
Board’s regulations implementing that statutory time limit, an IRA appeal must
be filed no later than 65 days after the date that OSC issues its close-out letter, or,
if the letter is received more than 5 days after its issuance, within 60 days of the
date of receipt. Id.; see 5 C.F.R. § 1209.5(a)(1). The appellant bears the burden
of proving by preponderant evidence that she timely filed her appeal. Pacilli
v. Department of Veterans Affairs , 113 M.S.P.R. 526, ¶ 8, aff’d per curiam ,
404 F. App’x. 466 (Fed. Cir. 2010); 5 C.F.R. § 1201.56(b)(2)(i)(B).
¶8In finding that the appellant’s IRA appeal was untimely filed, the
administrative judge observed that the statutory deadline began to run from the
date of OSC’s September 10, 2018 close-out letter. ID at 3. The administrative
judge relied on Bauer v. Department of the Army , 88 M.S.P.R. 352, ¶ 7 (2001),
for the proposition that there is no requirement in 5 U.S.C. § 1214(a)(3)(A) that
OSC provide the appellant with notice of appeal rights to the Board to trigger the
statutory time limit for filing such an appeal. Id. After the initial decision was
issued, however, the appellant submitted subsequent correspondence from OSC
indicating that it had reopened her case for the limited purpose of providing her
with notice of her appeal rights. PFR File, Tab 5 at 6, 9-10. We have considered
this new evidence3 because it contains information material to the outcome of the
timeliness issue. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349
(1980) (stating that the Board will not grant a petition for review based on new
3 Most of the documents the appellant submits on review relate to her underlying
whistleblowing disclosures. PFR File, Tab 1 at 13-73. Because these documents are
included in the record below, we need not consider them. IAF, Tab 16 at 4-64; 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). 4
evidence absent a showing that it is of sufficient weight to warrant an outcome
different from that of the initial decision).
¶9The Board has held, under similar circumstances, that OSC’s reopening of
an appellant’s case after it already had issued a close-out letter in the matter
creates a new statutory filing period, providing the appellant the right to file an
IRA appeal either within 65 days after OSC issued its new close-out letter or,
in the absence of a final OSC determination, at any time following 120 days from
having sought further corrective action. Kalus, 123 M.S.P.R. 226, ¶ 9 (citing
Morrison v. Department of the Army , 77 M.S.P.R. 655, 659-62 (1998)). Here,
OSC reopened the appellant’s IRA appeal after she contacted OSC regarding the
lack of appeal rights in the close-out letter. PFR File, Tab 1 at 7, Tab 5 at 9-10.
Her request alone would not have affected her deadline to file her IRA appeal
with the Board; rather, it was OSC’s decision to reopen her case that restarted the
statutory filing period. Kalus, 123 M.S.P.R. 226, ¶ 10; see Hawker v. Department
of Veterans Affairs , 123 M.S.P.R. 62, ¶ 7 (2015) (explaining that OSC’s decision
to reopen the appellant’s case deprives its initial close-out determination of the
requisite finality needed before an appellant can file an IRA appeal with the
Board pursuant to 5 U.S.C. § 1214(a)(3)(A)). The Board will accept OSC’s
decision to reopen at face value, absent egregious circumstances evidencing abuse
of process, which are not present here. Kalus, 123 M.S.P.R. 226, ¶ 10.
¶10Because more than 65 days has passed since OSC reopened her case and
issued its new close-out letter, the appellant’s appeal is now ripe for adjudication.
See Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 9 (2010). 5
¶11For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Osorio_Mariclar_V_SF-1221-19-0120-W-1_Remand_Order.pdf | 2024-01-22 | MARICLAR V. OSORIO v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-19-0120-W-1, January 22, 2024 | SF-1221-19-0120-W-1 | NP |
2,510 | https://www.mspb.gov/decisions/nonprecedential/Jolley_William_B_AT-4324-18-0576-I-2andAT-4324-19-0041-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM B. JOLLEY,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBERS
AT-4324-18-0576-I-2
AT-4342-19-0041-I-1
DATE: January 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
William B. Jolley , Brunswick, Georgia, pro se.
Robert Andrew Zayac , Esquire, and Carlos Quijada , Esquire, Atlanta,
Georgia, 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
found that the appellant did not establish a Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301-4335) (USERRA) violation with respect to a series of nonselections . For
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2The appellant filed his first appeal in June 2018, alleging that the agency
had committed a USERRA violation with respect to his nonselection.
Jolley v. Department of Housing and Urban Development , MSPB Docket No.
AT-4324-18-0576-I-1, Initial Appeal File (0576 IAF), Tab 1. The administrative
judge dismissed the appeal without prejudice after the appellant raised Lucia v.
Securities and Exchange Commission , 138 S. Ct. 2044 (2018), and the judge’s
authority to adjudicate the matter. 0576 IAF, Tab 4, Initial Decision. The
appellant challenged this dismissal without prejudice before the U.S. Court of
Appeals for the Federal Circuit, but the court dismissed for lack of jurisdiction.
Jolley v. Merit Systems Protection Board , No. 2019-1022 (Fed. Cir. Dec. 28,
2018). In the meantime, his appeal was redocketed. Jolley v. Department of
Housing and Urban Development , MSPB Docket No. AT -4324-18-0576-I-2,
Refiled Appeal File, Tabs 1-2. Around that same time, the appellant submitted a
filing that was construed as a second USERRA appeal and docketed accordingly.
Jolley v. Department of Housing and Urban Development , MSPB Docket No.
AT-4324-19-0041-I-1, Initial Appeal File (0041 IAF), Tab 1.
¶3The administrative judge developed the records, joined the appeals, and
issued a single decision. E.g., 0041 IAF, Tab 58, Initial Decision (0041 ID). The
December 21, 2022 initial decision considered three alleged nonselections but
found that the appellant did not meet his burden of proving that the agency
violated USERRA regarding any. Id. at 4-7. It explained that the deadline for
filing a petition for review was January 25, 2023. Id. at 8.
¶4The appellant has filed a petition for review. Jolley v. Department of
Housing and Urban Development , MSPB Docket No. AT-4324-18-0576-I-2,
Petition for Review File, Tab 1; Jolley v. Department of Housing and Urban2
Development, MSPB Docket No. AT-4324-19-0041-I-1, Petition for Review
(0041 PFR) File, Tab 1. However, he did not do so until May 9, 2023, more than
100 days after the deadline for doing so. 0041 PFR File, Tab 1. The appellant’s
petition summarily states that the Board has violated the law, and it does not
address the petition’s timeliness. Id. at 2.
¶5The Clerk of the Board notified the appellant that his petition appeared
untimely and provided instructions on how to file a motion regarding either its
timeliness or good cause for its untimeliness. E.g., 0041 PFR File, Tab 2.
The appellant did not respond to the Clerk’s notice. The agency has not
responded to the appellant’s petition.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6A petition for review must be filed within 35 days after the date of the
issuance of the initial decision, or, if the petitioner shows that the initial decision
was received more than 5 days after the date of issuance, within 30 days after the
date the petitioner received the initial decision. Palermo v. Department of the
Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). The Board will
waive the time limit for filing a petition for review only upon a showing of good
cause for the delay in filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R.
§§ 1201.113(d), 1201.114(g).
¶7The party who submits an untimely petition for review has the burden of
establishing good cause by showing that he exercised due diligence or ordinary
prudence under the particular circumstances of the case. Palermo, 120 M.S.P.R.
694, ¶ 4; Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980).
To determine whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of his excuse and his showing of due
diligence, whether he is proceeding pro se, and whether he has presented evidence
of the existence of circumstances beyond his control that affected his ability to
comply with the time limits or of unavoidable casualty or misfortune which3
similarly shows a causal relationship to his inability to timely file his petition.
Palermo, 120 M.S.P.R. 694, ¶ 4; Moorman v. Department of the Army , 68
M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶8In circumstances such as this, where an appellant does not respond to the
Clerk’s timeliness notice and has not otherwise explained the untimeliness of
their petition for review, the Board has declined to find good cause for even a
1-day filing delay. Smith v. Department of the Army , 105 M.S.P.R. 433, ¶ 6
(2007). The Board has explained that, even in the case of a pro se appellant, the
failure to respond to the Clerk’s notice does not reflect due diligence. Id.
¶9Here, where the appellant did not file his petition until more than 100 days
after the deadline for doing so, without explanation, we discern no reason to
conclude otherwise. The initial decision for his joined appeals informed the
appellant that the deadline for filing a petition for review was January 25, 2023.
0041 ID at 8. The appellant filed his petition on May 9, 2023. 0041 PFR File,
Tab 1. The petition is silent about this untimeliness, and the appellant did not
respond to the Clerk’s notice about the same.
¶10Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the appellant’s nonselections and alleged USERRA violations.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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.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 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
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Board neither endorses the services provided by any attorney nor warrants that
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MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.9 | Jolley_William_B_AT-4324-18-0576-I-2andAT-4324-19-0041-I-1_Final_Order.pdf | 2024-01-22 | null | null | NP |
2,511 | https://www.mspb.gov/decisions/nonprecedential/Holmes_KennethSF-0752-22-0425-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH HOLMES,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
SF-0752-22-0425-I-1
DATE: January 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sara L. Bloom , Esquire, Anchorage, Alaska, for the appellant.
Maria Teresa Davenport , Esquire, Anchorage, Alaska, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review and the appellant has filed a
cross petition for review of the initial decision, which reversed the agency’s
removal action. Generally, we grant petitions such as these only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that neither party has established any basis under
section 1201.115 for granting the petition or cross petition for review. Therefore,
we DENY the petition for review, and cross petition for review and AFFIRM the
initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was employed as an FV-0802-H Engineering Technician (802
ET) for the Federal Aviation Administration’s Engineering Services group at the
Infrastructure Construction and Installation Center in Anchorage, Alaska. Initial
Appeal File (IAF), Tab 1 at 8-9. From 2011 until 2018, the appellant mostly
performed Contracting Officer Representative (COR) duties, which is project
coordinator work that involves monitoring Federal contractors performing
installation and construction at various worksites. IAF, Tab 10 at 75; Hearing
Transcript, Day 2 (HT-2) at 120, 125 (testimony of the appellant). In 2018,
however, the agency was attempting to replace a navigational aid on Adak Island
and the appellant’s second-level supervisor, S.H., wanted to send the appellant
and other members of his small work unit to help with construction work that
would have involved repetitive heavy lifting and hand-mixing concrete. IAF,
Tab 9 at 64-65; HT-2 at 80-81 (testimony of W.G.). The appellant indicated that
he could not do this sort of work due to his age and the fact that the Department
of Veterans Affairs has rated him as 60% disabled, and subsequently submitted a
reasonable accommodation request in October 2018 to his then-supervisor, W.G.,
3
requesting that the agency accommodate his service-related disabilities by not
assigning him installation, construction, and manual labor tasks involving
prolonged sitting, standing, twisting, bending, lifting above the shoulder line,
lifting greater than 30 pounds, or lifting awkward or bulky items. IAF, Tab 10
at 11, 16, 21-22; HT -2 at 127-28 (testimony of the appellant). As part of his
request, the appellant explained that he believed that all duties outside of COR
work were marginal functions of his position and that he was only limited to not
performing “the more physically demanding, labor-intensive tasks.” IAF, Tab 10
at 22.
W.G. subsequently initiated the interactive process, asked the appellant to
submit medical information, and convened an advisory Reasonable
Accommodation Team (ReAct). Id. at 11-12, 294; Hearing Transcript, Day 1
(HT-1) at 35 (testimony of S.H.). The appellant submitted letters from two
medical providers from November 2018 stating that his medical conditions
include a right knee meniscus tear, bilateral rotator cuff tears, elbow tears, and a
traumatic injury to his neck and upper back, but that he could still perform COR
duties. IAF, Tab 10 at 15, 18-19. In March 2019, W.G. notified the appellant
that he was still evaluating the appellant’s request but was concerned that limiting
the appellant to COR duties would leave essential functions, such as installation
and construction duties, undone. Id. at 24. W.G. temporarily assigned the
appellant to various light duty projects primarily at the “Complex,” a warehouse
facility that Engineering Services uses to store items and build out projects. Id.
In September 2019, the appellant submitted a note from his medical provider, Dr.
B.G., that restricted him from lifting greater than 20 pounds, continued overhead
work with arms and shoulders, and repeated bending and twisting at the waist for
30 days after suffering a back injury. Id. at 27. The appellant’s then first-level
supervisor, F.C., was confused as to whether the appellant was being returned to
full duty and if he needed to continue the interactive process and, in January
2020, the appellant submitted a letter from Dr. B.G. clarifying his various
4
restrictions and stating that the appellant was able to successfully perform nearly
all tasks assigned to him “precluding installation and construction.” Id. at 28-33,
44.
On April 6, 2020, after suggestion by the ReAct team, the appellant’s
then-acting manager, M.R., compiled a list of physical duties that he stated were
essential functions of the 802 ET position and, in order to better evaluate what
duties the appellant could perform, asked the appellant to have his doctor identify
the tasks that he could successfully perform given his current physical
limitations. Id. at 47-54. The list broke the physical duties of the appellant’s
position into 15 categories with almost 80 subtasks. Id. at 48-52. Dr. B.G.
replied to the agency’s request the next day, annotating each task as one that the
appellant could accomplish, could accomplish with accommodations, one that was
not recommended, and one that was prohibited, indicating that the appellant could
perform 17 of the subtasks without accommodation and approximately
32 subtasks with accommodation. Id. Dr. B.G. added that while many of the
tasks would exacerbate the appellant’s underlying conditions, many could have
accommodations including frequent rests, appropriate assisting devices, or other
people on the same jobsites. Id. at 45. On April 17, 2022, M.R. responded,
stating that it was “clear” that the appellant was unable to perform the essential
functions of his position, primarily installation and construction duties, “without
presenting a danger” to himself and asking the appellant whether this was an
accurate conclusion to draw from his medical information. Id. at 60. The
appellant did not directly respond to this question. Id. at 62, 66-68; HT-1 at 214
(testimony of M.R.).
In June 2020, M.R. notified the appellant that he had determined that the
appellant could not be reasonably accommodated in his current position involving
primarily installation and construction duties and that he would next consider job
reassignment. IAF, Tab 10 at 61-65. On August 25, 2020, the agency offered the
appellant an FG-0343-11 Step 10 position as a Management and Program Analyst
5
in Fort Worth, Texas, which he declined. IAF, Tab 42 at 40-42. On September 2,
2020, M.R. issued the appellant a notice of proposed removal for “inability to
perform the essential functions of your position because of your medical
condition.” IAF, Tab 10 at 5-10. While the appellant’s reply was under
consideration, the agency approached him about a Logistics Management
Specialist position in Anchorage that would have allowed him to continue
working in the capacity he had been working in the Complex, but the appellant
declined to update his resume for the position and human resources did not
qualify him based on his current resume. HT-1 at 41-43 (testimony of S.H.). On
November 18, 2020, the agency issued a decision letter sustaining the charge and
removing the appellant effective December 22, 2020. IAF, Tab 6 at 14-18. The
appellant retired effective December 22, 2020.2 IAF, Tab 9 at 128-29.
The appellant subsequently filed a complaint of discrimination with the
Equal Employment Opportunity Commission (EEOC) alleging constructive
discharge, and in June 2022, the EEOC directed him to file a complaint with the
Board. IAF, Tab 7 at 8, 12. The appellant thereafter filed the instant Board
appeal. IAF, Tab 1. The administrative judge found that the Board had
jurisdiction over the agency’s removal decision under 5 U.S.C. § 7701(j) and that
the appellant’s appeal was timely.3 IAF, Tab 11. After holding the requested
hearing, the administrative judge issued an initial decision reversing the agency’s
removal action and ordering the agency to retroactively restore the appellant
effective December 22, 2020.4 IAF, Tab 60, Initial Decision (ID) at 47. The
2 The agency purposely set the effective date so that the appellant could retire prior to
the removal, but if he did not retire, the removal would go into effect. HT-1 at 219-21
(testimony of M.R.).
3 Under 5 U.S.C. § 7701(j), an appellant who retires after receiving the agency’s
decision to remove him, but on or before the scheduled effective date of his removal,
may still appeal his removal to the Board. Mays v. Department of Transportation ,
27 F.3d 1577, 1578-81 (Fed. Cir. 1994).
4 The appellant indicated at the hearing, and on petition for review, that although he
retired, his circumstances changed, and he would like to return to work for the FAA.
HT-2 at 186-87 (testimony of the appellant); Petition for Review (PFR) File, Tab 3
6
administrative judge first concluded that the agency did not prove its charge. ID
at 15-40. In this regard, the administrative judge found that the agency’s April 6,
2020 list of duties overstated and did not establish the precise essential functions
of the 802 ET position. ID at 16-29. He determined that the essential functions
of the 802 ET position involve being able to perform a “critical mass” of the tasks
identified in the April 6, 2020 list, including enough tasks in the installation and
construction categories, as well as some COR work and some work in the
Complex. ID at 16-29. The administrative judge concluded that the appellant is
medically able to perform COR and Complex work, and that he is also able to
perform some installation and construction work with accommodations, and thus
that the agency did not establish the charge. ID at 29-40. The administrative
judge also found that the appellant proved his affirmative defense of disability
discrimination based on a denial of a reasonable accommodation. ID at 40-41.
However, the administrative judge concluded that the appellant did not establish
his claim of retaliation for making a reasonable accommodation request or his
claim of disparate treatment disability discrimination, as he did not establish that
his disability was a motivating factor in the removal decision. ID at 42-47.
The agency has filed a petition for review, arguing that the administrative
judge erred in finding that it did not prove the charge and that the appellant
established his affirmative defense of disability discrimination based on a denial
of a reasonable accommodation. Petition for Review (PFR) File, Tab 1. The
appellant filed a response and a cross petition for review in which he largely
disputes the administrative judge’s finding that he did not establish retaliation for
making a reasonable accommodation request. PFR File, Tab 3. The agency filed
a reply and a response to the appellant’s cross petition for review. PFR File,
Tab 5.
at 15-16.
7
DISCUSSION OF ARGUMENTS ON REVIEW
We agree with the administrative judge that the agency did not prove the charge.
Where, as here, the appellant does not occupy a position with medical
standards or physical requirements or subject to medical evaluation programs, in
order to establish a charge of medical inability to perform, the agency must prove
a nexus between the employee’s medical condition and observed deficiencies in
his performance or conduct, or a high probability, given the nature of the work
involved, that his condition may result in injury to himself or others. Fox v.
Department of the Army , 120 M.S.P.R. 529, ¶ 25 (2014); see Haas v. Department
of Homeland Security , 2022 MSPB 36, ¶¶ 10-15 (recognizing this standard and
comparing it with the differing standard that applies in the context of an
employee’s removal from a position with medical standards based solely on their
medical history). The Board has otherwise described this standard as requiring
that the agency establish that the appellant’s medical condition prevents him from
being able to safely and efficiently perform the core duties of his position. Haas,
2022 MSPB 36, ¶¶ 15, 20. In determining whether an agency has met this
burden, the Board will consider whether a reasonable accommodation, short of
reassignment, exists that would enable the appellant to safely and efficiently
perform his core duties. Id., ¶ 25.
The Board has indicated that the core duties of a position are synonymous
with the essential functions of a position under the Americans with Disabilities
Act (ADA), as amended by the Americans With Disabilities Act Amendments Act
of 2008 (ADAAA), i.e., the fundamental job duties of the position, not including
marginal functions. Id., ¶ 21 (citing Clemens v. Department of the Army ,
120 M.S.P.R. 616, ¶ 6 (2014); 29 C.F.R. § 1630.2(n)(1)). Evidence of whether a
particular function is essential includes, among other things, the employer’s
judgment as to which functions are essential, written position descriptions, the
amount of time spent performing the function, the consequences of not requiring
8
the incumbent to perform the function, and the work experience of past and
current incumbents in the job. 29 C.F.R. § 1630.2(n)(3).
Below, the appellant maintained that the essential functions of the 802 ET
position were limited to COR work, while the agency maintained that the
essential functions of the position were the various tasks on its April 6, 2020 list,
including significant installation and construction work. See IAF, Tab 21 at 4;
HT-2 at 208 (agency closing statement). In the initial decision, the administrative
judge found that the position was not limited to COR work. ID at 22. He
discussed several written position descriptions and found that each indicated that,
at the least, the 802 ET position could involve some installation and construction
work. ID at 18-23. He also credited the testimony of multiple past and present
incumbents of the position who explained that while the duties of an 802 ET from
2011 to 2018 mostly involved COR/project manager work, the agency prefers to
have its ETs perform work in-house and that installation and construction work
was a central part of the job before 2011 and after 2018. ID at 21-22.
However, while the administrative judge found that the appellant
understated the essential functions of the 802 ET position, he also found that the
agency’s April 6, 2020 list overstated the essential functions. ID at 25. As noted
above, the agency’s list broke down what it alleged are the essential functions of
the position into 15 general essential functions, including: (1) rack and
equipment installation; (2) cable pulling; (3) conduit installation; (4) electrical
energized work; (5) grounding and bonding; (6) loading and unloading aircraft;
(7) ladders and elevated platforms; (8) general mechanical/carpentry work;
(9) electrical grounding work; (10) general housekeeping and maintenance work;
(11) general physical COR work; (12) ES Complex; (13) overhead heater
installation; (14) site demolition; and (15) install of SWS system. IAF, Tab 10
at 48-52. It further broke down these general functions into approximately
80 subtasks, including, for example, “hammer drilling 15 lbs., bent over less than
5 min at a time, but repetitive throughout the day,” “installing and terminating
9
wires and or cables,” “lifting 50 lb coolers repetitively,” “standing on ladders to
install electrical components and conduits minutes to hours,” and “rebuilding
walls and stairs.” Id. The agency compiled the list by surveying tasks completed
by ETs across different groups in Alaska over the past 2 years and then labeling
every task an essential function. ID at 27; HT -1 at 210-212, 246 (testimony of
M.R.).
Although this list is exhaustive, the administrative judge found that it does
not accurately describe the essential functions of the appellant’s 802 ET position
because it does not focus on the work of the appellant’s specific 802 ET unit, it
does not distinguish between essential and marginal functions, and because the
written position descriptions for the 802 ET position do not support essential
functions as extensive and detailed as these. ID at 26-27. Further, the
administrative judge explained that M.R. testified that he could accommodate an
individual who could only perform part of the list, and the current manager of the
appellant’s old work unit, R.N., testified that an ET must be able to do some of
these tasks, but not all, that projects vary, and he tries to utilize the skills of his
employees accordingly. ID at 27; HT-1 at 244-45 (testimony of M.R.); HT-2
at 31-32 (testimony of R.N.). The administrative judge thus concluded, based on
this testimony and his review of the evidence relating to the other factors set forth
at 29 C.F.R. § 1630.2(n)(3), that the essential functions of the position include
being able to perform a “critical mass” of the tasks identified in the April 6, 2020
list, including some tasks in the installation and construction categories, such that
the 802 ET position is not fundamentally altered by putting the employee on
permanent light duty or by limiting the individual to so few installation and
construction tasks that he is unable to contribute to the core of the work unit. ID
at 25-29. The administrative judge indicated that the essential functions involve
some COR work, some work at the Complex, and some installation and
construction work. See ID at 33-40.
10
We discern no reason to disturb the administrative judge’s thoroughly
analyzed and reasoned finding. See Crosby v. U.S. Postal Service , 74 M.S.P.R.
98, 106 (1997) (finding no reason to disturb the administrative judge’s findings
when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions on issues of credibility). On review, the agency
argues that the administrative judge improperly placed an “inordinate burden” on
it to establish the precise essential functions of the position and that “the only
reasonable conclusion is that the essential functions of the 802 ET position . . .
are installation and construction duties in general.” PFR File, Tab 1 at 20 (citing
Clemens, 120 M.S.P.R. 616, ¶ 8 (defining the essential function of the position as
“significant verbal communication” instead of the underlying tasks identified in
the position description)). However, we do not find the administrative judge’s
conclusion that an 802 ET must be able to perform some installation and
construction tasks identified in the April 6, 2020 list necessarily inconsistent with
the contention that an 802 ET must be able to perform installation and
construction duties in general. The administrative judge correctly recognized that
an employee must be able to perform enough installation and construction tasks
to contribute to the work unit. ID at 29.
The agency also argues throughout its petition that the administrative judge
crafted a “modified” 802 ET position by finding that the essential functions of the
position include some COR work, some work at the Complex, and some
installation and construction work. See PFR File, Tab 1 at 13, 26. The agency
emphasizes that the record shows that the 802 ET position involves mostly
installation and construction duties, and that COR work and work at the Complex
are now performed by employees in a different job series. Id. at 26. Although we
appreciate the agency’s point, the agency also continually maintained throughout
this case that the essential functions of the 802 ET position are the tasks
identified in its April 6, 2020 list, which include “[g]eneral physical COR work”
11
and work at the “ES Complex.”5 IAF, Tab 10 at 48, 50-51. The agency based its
charge on the appellant’s inability to perform these functions of his position.
IAF, Tab 6 at 14-16. As previously stated, the administrative judge repeatedly
acknowledged that the 802 ET position primarily involves installation and
construction duties. See ID at 22-23, 28. The administrative judge also found
that incumbents periodically work in the Complex and may do COR work. ID at
28; see also HT-1 at 44 (testimony of S.H.). Thus, the agency’s argument
provides no reason for disturbing the initial decision. Moreover, we agree with
the administrative judge’s conclusion and above characterization that the essential
functions, or core duties, of the 802 ET position on the record before us include
being able to perform a “critical mass” of the tasks identified in the April 6, 2020
list. See Clemens, 120 M.S.P.R. 616, ¶ 6.
The administrative judge also subsequently determined that the appellant
was medically able to perform work in the Complex, COR work, and some
installation and construction work, both with and without accommodations, thus
leading to the conclusion that the agency did not establish that the appellant’s
medical condition prevented him from being able to safely and efficiently
perform the core duties of his position. ID at 29-40. The administrative judge
reviewed the various medical evidence noted above, including a January 2020
5 On review, the agency states that the April 6, 2020 list was “perhaps inarticulately
worded by referring to the duties as ‘essential functions,’” when the purpose of the list
was to help the appellant “develop an accommodation request that could be found
reasonable and effective.” PFR File, Tab 1 at 19. But the agency’s statement is
inconsistent with its position throughout the entirety of this case and, most importantly,
its removal letter, which specifically referred to the tasks listed in the April 6, 2020
letter as essential functions. See IAF, Tab 6 at 14-16. Further, the agency states that
the list was developed to fully understand how the appellant’s restrictions affected his
ability to perform all of the essential functions of his position and that if he “could
perform enough of the subtasks, for example, he could be deemed able to perform that
job category despite not being able to complete them all, and thus could be deemed
capable of performing installation and construction in general.” PFR File, Tab 1 at 19.
This reasoning is consistent with the administrative judge’s analysis and conclusion that
the essential functions of the position include being able to perform a “critical mass” of
the tasks identified in the April 6, 2020 list.
12
letter from Dr. B.G. setting forth the appellant’s most recent particular
restrictions that stated that “[i]n order to maintain his current level of functioning
and health[, the appellant] should not be tasked with prolonged sitting, standing,
twisting, bending, lifting above shoulder line or lifting greater than 30 lbs,
hoisting[,] pulling[,] stooping and squatting.” IAF, Tab 10 at 44. With respect to
the appellant’s ability to perform installation and construction work, the
administrative judge found that the appellant’s restrictions ruled out some work,
but that the agency did not establish that all installation and construction work
has physical requirements that are beyond the appellant’s limitations, because it
did not establish whether any particular subtasks on the April 6, 2020 list are, in
and of themselves, essential. ID at 36-37. Based on Dr. B.G.’s annotations of the
April 6, 2020 list of alleged essential functions, which also constitutes medical
evidence, the administrative judge found that although there were five categories
where the appellant likely could not perform the subtasks in question (conduit
installation, loading and unloading aircraft, overhead heater installation, site
demolition, and installation of SWS system), he could perform each of the
subtasks with accommodations in four categories (cable pulling, electrical
energized work, grounding and bonding, and general housekeeping and
maintenance work) and most of the subtasks in the four remaining
construction-based categories (rack and equipment installation, ladders and
elevated platforms, general mechanical/carpentry work, and electrical grounding
work). ID at 37; see also IAF, Tab 10 at 48-52. The administrative judge found
that the appellant could perform the above tasks with reasonable accommodations
including taking breaks as needed, using assistance devices, and job modification,
since ETs work in crews with varying assignments, which he found consistent
with testimony from M.R. and R.N. about how work is done. ID at 38; see also
IAF, Tab 10 at 45.
On review, the agency argues that the administrative judge improperly
considered the medical evidence in this case. PFR File, Tab 1 at 14-17.
13
Specifically, the agency claims that the administrative judge wrongly gave “little
weight” to medical opinions that recommended that the appellant “avoid
installation and construction tasks” and relied on medical documentation that the
appellant submitted to support his request to perform solely COR duties when
installation and construction work is far more strenuous. Id. at 14-15. We
disagree. In reaching his conclusion, the administrative judge properly weighed
the medical evidence. ID at 29-38; see Brown v. Department of the Interior ,
121 M.S.P.R. 205, ¶ 11 (2014) (recognizing that, in assessing the probative
weight of medical opinions, the Board considers whether the opinion was based
on a medical examination and provided a reasoned explanation for its findings as
distinct from mere conclusory assertions, the qualifications of the expert
rendering the opinion, and the extent and duration of the expert’s familiarity with
the treatment of the appellant), overruled on other grounds by Haas , 2022 MSPB
36.
Although the administrative judge gave little weight to medical opinions
that simply stated that the appellant should avoid installation and construction
work, he properly reasoned that some of these opinions lack appropriate
specificity and, because installation and construction work varies, whether the
appellant can perform it depends on the particular requirements. ID at 31.
Neither of the opinions that the agency points to indicate an understanding of
what installation and construction work actually entails. See PFR File, Tab 1
at 15; IAF, Tab 10 at 37, 44; Brown, 121 M.S.P.R. 205, ¶ 11. Further, although
the administrative judge discussed medical documentation that stated that the
appellant could continue to work as a COR, which we acknowledge is less
physically strenuous than installation and construction duties, the administrative
judge correctly went on to analyze whether the particular restrictions within those
documents prevented the appellant from performing installation and construction
duties. See ID at 31-32, 36-38. We understand the agency’s concern that it
cannot “simply ignore” medical recommendations that put it on notice of the
14
appellant’s physical limitations; however, the agency’s arguments on the whole
also largely ignore the fact that Dr. B.G.’s response to its April 6, 2020 list
explicitly indicates that the appellant can perform some installation and
construction work. PFR File, Tab 1 at 15.
The agency also disputes the fact that the administrative judge credited the
appellant’s estimation of his physical condition and testimony that he is not as
“limited” as it may appear, instead claiming that the appellant appears to be
downplaying the severity of his condition. PFR File, Tab 1 at 16. However, the
Board has regularly held that it will not disturb an administrative judge’s findings
when he considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions on issues of credibility. See Broughton v. Department
of Health and Human Services , 33 M.S.P.R. 357, 359 (1987). Further, the
administrative judge made credibility determinations based on his observation of
each witness’s demeanor at the hearing, and we decline to disturb those findings
on review. See ID at 14 (citing Hillen v. Department of the Army , 35 M.S.P.R.
453, 458 (1987) (identifying the factors that an administrative judge must
consider in making credibility determinations)); Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002) (concluding that the Board generally must
give deference to an administrative judge’s credibility determinations when they
are based, explicitly or implicitly, on the observation of the demeanor of
witnesses testifying at a hearing and may overturn such determinations only when
it has “sufficiently sound” reasons for doing so).
Throughout its petition for review, the agency also argues that the appellant
did not identify specific reasonable and effective accommodations that would
enable him to perform installation and construction duties. See PFR File, Tab 1
at 22-23. In the initial decision, the administrative judge discussed that Dr. B.G.
suggested in his response to the agency’s April 6, 2020 list that, for those tasks
the appellant needed an accommodation, the appellant could take frequent rests,
use assistive devices, and use the assistance of other people on the jobsite. ID at
15
37; IAF, Tab 10 at 45. Although the agency claims that “assistive devices” is
vague, the appellant did in fact testify at the hearing that this could include a
dolly, a forklift, or a puller of some sort. HT-2 at 155 (testimony of the
appellant). The administrative judge also found that job modification is a viable
accommodation because ETs work in crews with varying assignments. ID at 38.
We note that the Board has held that an agency is not required to modify or
eliminate duties that are an essential function of the position. Johnson v. U.S.
Postal Service, 120 M.S.P.R. 87, ¶ 10 (2013). Here, however, as the
administrative judge found, R.N. testified that projects vary, that he tries to
utilize the skills of his employees accordingly, and that if an employee cannot do
a particular type of task, the agency can and does assign it to others. ID at 27;
HT-2 at 31-32 (testimony of R.N.). The agency has not persuaded us to disturb
this conclusion. Moreover, the agency has not established that the administrative
judge erred in concluding that it did not meet its burden in proving its charge.
We agree with the administrative judge’s conclusions as to the appellant’s
affirmative defenses.
Below, the appellant presented a disability discrimination claim based on
the theory of a failure to accommodate. IAF, Tab 21 at 6, Tab 43 at 2-3. The
Board adjudicates claims of disability discrimination raised in connection with an
otherwise appealable action under the substantive standards of section 501 of the
Rehabilitation Act, which has incorporated the standards of the ADA as amended
by the ADAAA. Haas, 2022 MSPB 36, ¶ 28. Under the relevant provisions, it is
illegal for an employer to “discriminate against a qualified individual on the basis
of disability.” Id.; 42 U.S.C. § 12112(a). To prove disability discrimination
based on a failure to accommodate, an employee must show that (1) he is an
individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a
qualified individual with a disability as defined by 29 C.F.R. § 1630.2(m); and
(3) the agency failed to provide a reasonable accommodation. Miller v.
Department of the Army , 121 M.S.P.R. 189, ¶ 13 (2014). A qualified individual
16
with a disability is one who can “perform the essential functions of the . . .
position that such individual holds or desires” with or without accommodation.
Haas, 2022 MSPB 36, ¶ 28; 42 U.S.C. § 12111(8); see 29 C.F.R. § 1630.2(m).
An agency is required to provide reasonable accommodation to an otherwise
qualified individual with a disability, unless the agency can show that doing so
would cause an undue hardship on its business operations. 42 U.S.C. § 12112(b)
(5); Haas, 2022 MSPB 36, ¶ 28; Clemens, 120 M.S.P.R. 616, ¶ 10. Once an
employee informs the agency that he requires an accommodation, the agency must
engage in an interactive process to determine an appropriate accommodation.
Kirkland v. Department of Homeland Security , 119 M.S.P.R. 74, ¶ 18 (2013).
“The appropriate reasonable accommodation is best determined through a
flexible, interactive process that involves both the employer and the individual
with a disability.” 29 C.F.R. part 1630, appendix, § 1630.9.
In the initial decision, the administrative judge concluded that the appellant
proved his claim of disability discrimination based on a denial of a reasonable
accommodation because the administrative judge found that the appellant is able
to perform the essential functions of the 802 ET position as established in this
appeal, and thus that he is a qualified individual with a disability, because the
agency did not provide the appellant with an accommodation as it erroneously
determined he could not perform the essential functions of the position, and
because the agency did not show that the accommodations in question would
create an undue hardship. ID at 41. On review, the agency does not dispute that
the appellant is an individual with a disability but argues that the administrative
judge erred in finding that the appellant is a qualified individual with a disability,
or that he can perform the essential functions of the 802 ET position with or
without accommodations. PFR File, Tab 1 at 17-21. However, as discussed
above, we agree with the administrative judge’s analysis as to the essential
functions of the 802 ET position and that the appellant can perform many of those
functions both with and without accommodations.
17
The agency also argues that the administrative judge disregarded the fact
that the appellant did not properly engage in the interactive process in this case.
PFR File, Tab 1 at 21-24. Courts have generally required both parties to engage
in the interactive process in good faith. See Rehling v. City of Chicago , 207 F.3d
1009, 1015-16 (7th Cir. 2000); Collins v. U.S. Postal Service , 100 M.S.P.R. 332,
¶ 11 (2005). Here, we do not agree that the appellant failed to engage in the
interactive process in good faith. The appellant promptly provided the agency
with additional medical information on the nature of his disability on multiple
occasions and he indicated his belief as to the essential functions of his position,
although maybe misguided, and his interest in finding a reasonable
accommodation. To this end, he told W.G. that he could do installation and
construction work with an accommodation. IAF, Tab 10 at 21-22. Further, the
appellant’s physician, Dr. B.G., immediately responded to the agency’s April 6,
2020 request to better understand the appellant’s physical limitations, reviewing
more than 80 alleged essential functions to determine whether each individual
task was something that the appellant could perform. Id. at 45-52.
Although the agency contends that the appellant did not offer any
indication as to what accommodations he might need to perform the specific
duties in the April 6, 2020 list, including installation and construction duties, Dr.
B.G. specifically stated that the accommodations could include frequent rests,
appropriate assisting devices, and other people on the same jobsite. Id. at 45.
While, as discussed above, the agency insists “appropriate assisting devices” is
vague, the appellant testified that this could include a dolly, a forklift, or a puller
of some sort, but that it would be project and task specific. HT-2 at 155
(testimony of the appellant). We do not find these suggested accommodations
unreasonable. We do agree with the agency that the appellant made matters more
difficult in this case by not directly responding to M.R.’s conclusion that, based
on Dr. B.G.’s annotations, it was “clear” that the appellant was unable to perform
the essential functions as detailed in the April 6, 2020 list and thus that M.R.
18
would start the reassignment process. See PFR File, Tab 1 at 21-22; IAF, Tab 10
at 60. However, M.R.’s response ignored the fact that Dr. B.G. indicated that the
appellant could perform many of the alleged essential functions and that he
provided proposed reasonable accommodations. Continuing the interactive
process would have been the opportunity to explore the proposed reasonable
accommodations further. The agency claims on review that the purpose of the
April 6, 2020 list was to identify the types of things the appellant could do and to
find an accommodation, and that is exactly what the appellant’s response from
Dr. B.G. does. See PFR File, Tab 1 at 19. Consequently, the agency’s arguments
have not persuaded us that the administrative judge erred in finding that the
appellant proved his claim of disability discrimination based on failure to provide
a reasonable accommodation.
Below, the appellant also alleged that the agency retaliated against him for
requesting a reasonable accommodation and that it engaged in disparate treatment
disability discrimination. IAF, Tab 43 at 2-3; ID at 40. With regard to the first
claim, the appellant argued that his second-level supervisor, S.H., and his
first-level supervisors, F.C. and then M.R., made his job difficult and wanted to
get rid of him after he refused to go to Adak Island and after he asked for
accommodation. ID at 42-45. The administrative judge found that the appellant
failed to prove this claim because all three witnesses testified that neither S.H.
nor F.C. were involved in the decision making regarding the appellant’s removal,
the appellant did not establish that S.H. influenced M.R. at all in issuing the
decision, and there was no direct evidence, comparator evidence, or any other
indications in the record that M.R. expressed hostility towards the appellant’s
reasonable accommodation request. ID at 43-45. The administrative judge
explained that although M.R.’s April 6, 2020 list was “over-inclusive” and “made
it almost certain that the appellant could not perform what the agency deemed the
essential functions,” he found M.R.’s approach genuinely erroneous and not an
effort to retaliate against the appellant for requesting a reasonable
19
accommodation. ID at 45. In his cross petition for review, the appellant largely
reargues his version of the facts leading to the removal decision, disputes the
testimony of several witnesses and the administrative judge’s credibility
determinations, and reargues that S.H. was involved in his removal. PFR File,
Tab 3 at 19-27. However, merely rearguing factual issues raised and properly
resolved by the administrative judge below does not establish a basis for review.
Broughton, 33 M.S.P.R. at 359 (1987); see also Haebe, 288 F.3d at 1301.
In his cross petition, the appellant also briefly discusses his claim of
disparate treatment disability discrimination. PFR File, Tab 3 at 27. He asserts
that “[o]thers not in his protected class” were assigned duties that did not involve
intensive labor; specifically, J.W. and M.L. Id. However, the administrative
judge discussed J.W. and found that although J.W. spent some time developing
software for the agency, he is now doing installation and construction work and is
thus not a good comparator and does not support the appellant’s claim. ID at 46.
With regard to the appellant’s claim as to M.L., we decline to consider this
argument that the appellant submits for the first time on review because he has
not shown that it is based on new and material evidence not previously available
despite his due diligence. See Banks v. Department of the Air Force , 4 M.S.P.R.
268, 271 (1980).
The agency’s remaining arguments provide no basis for disturbing the initial
decision.
On review, the agency also contends that even if the Board disagrees with
its above arguments, the Board should reverse the initial decision and reopen the
proceedings. PFR File, Tab 1 at 24-27. In this regard, the agency first argues
that the administrative judge erred in finding that the appellant is medically
capable of performing the essential functions of the 802 ET position without
allowing testimony from its Regional Flight Surgeon, Dr. M.D. Id. at 25. The
agency explains that it did not call Dr. M.D. as an expert witness as to its
determination that the appellant was medically unable to perform the essential
20
functions of his position because the appellant stated throughout this case that he
was only challenging the agency’s determination that the essential functions of
the 802 ET position include more than COR duties and not its determination that
he was medically unable to perform the tasks it identified as essential functions,
including installation and construction duties. Id. at 11, 13, 24-25; see also IAF,
Tabs 19, 20. The agency alleges that the only discussion of accommodations that
would allow the appellant to perform installation and construction duties resulted
from the administrative judge’s own questioning. Id. at 13, 25. We find the
agency’s assertions unavailing. Although the appellant apparently indicated that
he did not plan to challenge the agency’s determination that he was medically
unable to perform the functions it identified in its April 6, 2020 list, it was the
agency’s burden to prove its charge and whether the appellant’s medical
condition prevents him from being able to safely and efficiently perform the core
duties of his position. See Haas, 2022 MSPB 36, ¶¶ 15, 20. Additionally, while
the agency seems to take issue with the administrative judge’s questioning of the
witnesses, the Board’s regulations provide an administrative judge with wide
discretion to regulate the course of a hearing. 5 C.F.R. § 1201.41(b)(6).
Furthermore, as discussed above, the appellant addressed the issue of what
accommodations would allow him to perform installation and construction work
during the interactive process.
Similarly, the agency also contends that the administrative judge erred in
finding that the “modified” installation and construction position constitutes a
full-time position and effective accommodation without the testimony of the 802
ET manager, R.N. PFR File, Tab 1 at 26. The agency asserts that because the
appellant “did not raise as a potential accommodation the modified position the
AJ ultimately crafted,” it did not elicit testimony from R.N. as to whether a
position that consisted of COR work, Complex work, and some installation and
construction tasks could “even constitute a full-time position” or whether this
would warrant sending the appellant to construction projects. Id. However, as
21
explained above, we disagree with the agency’s characterization of the initial
decision as creating a “modified” position. The agency’s April 6, 2020 list,
which it argued constitutes the essential functions of the 802 ET position and on
which it based its charge, includes installation and construction work, COR work,
and work at the Complex. Despite this, the administrative judge properly
recognized that the position involves mostly installation and construction work.
Whether an individual can perform COR and Complex work is part of the
analysis as to whether they can perform the essential functions of the 802 ET
position. The agency also claims that the initial decision “effectively requires” it
to reinstate the appellant to a “newly-crafted position not currently performed by
any other 802 ET” and, as a practical matter, means that the agency would likely
have to reinstate him to a permanent position at the Complex, which he
previously rejected. PFR File, Tab 1 at 26. But again, the agency’s argument
ignores the fact that the administrative judge recognized that 802 ETs mostly
perform installation and construction work and that the administrative judge
found that the appellant can perform some of this work with accommodations.
The initial decision does not require the agency to effectively reinstate the
appellant to the Complex. Therefore, the agency’s assertions are unpersuasive.
Accordingly, we affirm the initial decision.
ORDER
We ORDER the agency to CANCEL the removal and to retroactively
restore the appellant effective December 22, 2020. See Kerr v. National
Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must
complete this action no later than 20 days after the date of this decision.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the 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
22
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
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
23
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be paid, you must meet the requirements set out at
42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201,
1201.202, and 1201.204. If you believe you meet these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
THE DATE OF THIS DECISION. You must file your motion with the office that
issued the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
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.
24
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
25
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
26
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
27
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING
SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back
pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the
following checklist to ensure a request for payment of back pay is complete. Missing
documentation may substantially delay the processing of a back pay award. More information
may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid
by vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the
ticket comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no
authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave
payment they may have received. The payroll office must collect the debt from the back pay
award. The annual leave will be restored to the employee. Annual leave that exceeds the
annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR
§ 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1 -7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. 2 | Holmes_KennethSF-0752-22-0425-I-1_Final_Order.pdf | 2024-01-22 | KENNETH HOLMES v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. SF-0752-22-0425-I-1, January 22, 2024 | SF-0752-22-0425-I-1 | NP |
2,512 | https://www.mspb.gov/decisions/nonprecedential/Garcia_CamiloDA-0752-16-0324-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAMILO GARCIA,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0752-16-0324-I-1
DATE: January 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M
alinda A. Gaul , Esquire, San Antonio, Texas, for the appellant.
Tania Bryant , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision AS
MODIFIED by this order to find that the agency proved one of two charges of
violation of agency policy, to clarify the standard applied to the appellant’s claim
that he was subjected to a disparate penalty in accordance with Singh v. U.S.
Postal Service, 2022 MSPB 15, and to consider the appellant’s argument of
condonation in determining whether the penalty of removal falls within the
tolerable limits of reasonableness, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant served as a Criminal Investigator with the agency’s Office of
Inspector General (OIG) in its McAllen, Texas field office. Initial Appeal File
(IAF), Tab 6 at 6. In May 2012, the agency placed the appellant on
administrative leave pending the outcome of a Federal Bureau of Investigation
(FBI) criminal investigation and a subsequent agency OIG investigation regarding
the falsification of records in preparation for a September 2011 internal
inspection of the McAllen field office. IAF, Tab 8 at 4, Tab 10 at 18-20. In
January 2016, the agency proposed the appellant’s removal based on the
following charges: (1) violation of agency policy, supported by eight
specifications of misconduct; (2) unauthorized use of a law enforcement database;
and (3) lack of candor, supported by four specifications of misconduct. IAF,
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Tab 8 at 4-21. The appellant provided an oral and a written reply to the notice.
IAF, Tab 7 at 6-14. In April 2016, the agency issued a decision sustaining the
charges and removing the appellant, effective April 14, 2016. Id. at 4-5.
The appellant timely filed an appeal with the Board alleging that the
evidence did not support the charges against him, the penalty imposed was
excessive, and he was retaliated against for exercising his Fifth Amendment
rights. IAF, Tab 1 at 4. Following a hearing, the administrative judge issued an
initial decision sustaining the appellant’s removal. IAF, Tab 40, Initial Decision
(ID). The administrative judge found that, regarding the charge of violation of
agency policy, although the agency did not establish that the appellant failed to
submit eight memoranda of activity (MOA) as soon as practicable, the agency
nevertheless proved its charge because the appellant submitted signed and dated
MOA that did not accurately reflect the date they were completed, or did not
contain a date. ID at 5-8. The administrative judge also found that the agency
proved its charge of unauthorized use of a law enforcement database. ID at 9-15.
The administrative judge further found that the agency proved one specification
of the charge of lack of candor and sustained the charge. ID at 15-19. The
administrative judge then found that the agency established a nexus between the
appellant’s misconduct and the efficiency of the service. ID at 19. Finally, in
reviewing the penalty of removal, the administrative judge found that the
appellant did not show that the agency imposed a penalty upon him that was
inconsistent with the penalties imposed upon other employees for the same or
substantially similar offenses, or that the agency took the removal action in
retaliation for the exercise of his Fifth Amendment rights, and found the penalty
within the bounds of reasonableness; accordingly, he sustained the agency’s
action. ID at 19-26.
The appellant has filed a petition for review of the initial decision, and the
agency has filed a response opposing the petition. Petition for Review (PFR)
File, Tabs 1, 3. As set forth below, although we find that the charge of violation
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of agency policy is properly split into two separate charges, the administrative
judge correctly sustained the second charge of violation of agency policy and
properly sustained the remaining two charges. The administrative judge also
properly found a nexus between the appellant’s misconduct and the efficiency of
the service. The administrative judge then correctly found that the appellant’s
misconduct was not similar to that of four other employees. Finally, despite the
administrative judge’s failure to consider the appellant’s argument that his
supervisors condoned his failure to accurately date the MOA as part of the
analysis of the penalty, we find that the penalty of removal falls within the
tolerable limits of reasonableness for the sustained charges.
DISCUSSION OF ARGUMENTS ON REVIEW
The charge of violation of agency policy is properly split into two separate
charges of violation of agency policy, and the administrative judge correctly
sustained the second charge of violation of agency policy.
On review, the appellant alleges that the administrative judge erred in
sustaining the charge of violation of agency policy because he found that the
agency failed to prove an essential element of the charge. PFR File, Tab 1 at 7-8.
The appellant further alleges that the administrative judge erred by sustaining the
charge on the basis that the appellant submitted MOA that reflected inaccurate
dates or failed to contain a date because these acts were not elements of the
charge or specifications. Id. at 8. Finally, the appellant alleges that the MOA
used to support the specifications were approved by his supervisors, backdating
MOA was a common practice, and it was not uncommon for employees to make
errors on MOA. Id. at 8-10.
The notice of proposed removal set forth the charge of violation of agency
policy and eight specifications, each of which alleged that the appellant had both
failed to timely submit a MOA and had failed to accurately date the MOA. IAF,
Tab 8 at 5-8. As the administrative judge found, the agency policy cited in the
notice, paragraph 12.4 of the Special Agent Handbook (SAH), provided that an
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MOA must be “submitted to the reporting agent’s immediate supervisor for
approval within five working days of the activity, or in exceptional circumstances
as soon as practicable thereafter,” and that MOA must be signed and dated on the
date on which they are signed. ID at 5-8; see IAF, Tab 20 at 38-40. The
administrative judge found that, although the MOA at issue were not submitted
within 5 working days, the agency did not prove that the appellant failed to
submit MOA as soon as was practicable after the activity described in the MOA.
ID at 5-7. However, the administrative judge found that the agency demonstrated
that the appellant did not accurately date seven MOA and failed to date one MOA
in violation of agency policy. ID at 7-8.
The Board may not split a single charge into several independent charges
and then sustain one of the newly formulated charges, which represents only a
portion of the original charge. Burroughs v. Department of the Army , 918 F.2d
170, 172 (Fed. Cir. 1990). If the agency fails to prove one of the elements of its
charge, then the entire charge must fall. Id. However, when a single stated
charge contains two separate acts of misconduct that are not dependent upon each
other and that do not comprise a single, inseparable event, each act constitutes a
separate charge. Chauvin v. Department of the Navy , 38 F.3d 563, 565 (Fed. Cir.
1994). 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).
Here, although the administrative judge did not explicitly split the charge
of violation of agency policy into two charges, he properly identified two
violations of agency policy that comprised separate acts of misconduct. ID
at 5-8. The allegation that the appellant failed to submit MOA within 5 working
days of an activity, or as soon as is practicable thereafter, in violation of SAH
paragraph 12.4(B), is distinct from the allegation that he inaccurately dated MOA
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in violation of SAH paragraph 12.4(C)(4)(a). IAF, Tab 20 at 38-40. In other
words, the appellant could have failed to timely submit MOA but still accurately
dated the MOA, or vice versa. Moreover, each specification set forth under the
charge of violation of agency policy contained the elements to potentially support
a violation of both agency policies at issue. IAF, Tab 8 at 5-8. Accordingly, we
find that the agency charged the appellant with two independent violations of
agency policy, which we consider as two separate charges of violation of agency
policy.
Neither the appellant nor the agency dispute the administrative judge’s
finding that the agency did not prove the first charge of violation of agency
policy because it did not show that the appellant failed to submit MOA as soon as
was practicable after the activity described in the MOA, and we discern no reason
to disturb the administrative judge’s findings, as the record reflects that he
considered the evidence as a whole, drew appropriate inferences from the
evidence, and made reasoned conclusions on the issue of credibility. ID at 5-7;
see Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (finding no
reason to disturb the administrative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions
on the issue of credibility); Broughton v. Department of Health and Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).
We have found that the original charge of violation of agency policy must
be split into two charges. Next, we construe the appellant’s argument—that the
fact that he submitted MOA reflecting inaccurate dates or failing to contain a date
was not an element of the charge or specifications—to allege that he lacked
notice of the second charge of violation of agency policy. PFR File, Tab 1 at 8.
An employee must receive advanced written notice stating the specific reasons for
the proposed adverse action in sufficient detail to allow the employee to make an
informed reply. Smith v. Department of the Interior , 112 M.S.P.R. 173, ¶ 5
(2009); see 5 U.S.C. § 7513(b)(1); Cleveland Board of Education v. Loudermill ,
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470 U.S. 532, 546 (1985) (explaining that the essential requirements of
constitutional due process for a tenured public employee are notice of the charges
against him, with an explanation of the evidence, and an opportunity for the
employee to present his account of events prior to the deprivation of his property
right to continued employment). Here, the notice of proposed removal set forth a
narrative description following the charge of violation of agency policy that
alleged that the appellant’s MOA were “misdated to appear as though they had
been prepared and signed within the reporting period proscribed in the Special
Agent Handbook,” and each of the eight specifications set forth either that the
date the MOA was signed and dated by the appellant was not the date of signature
set forth in the MOA, or that the MOA lacked the date it was signed by the
appellant. IAF, Tab 8 at 5-8. Although the agency did not set forth in the notice
the language of the agency policy violated, it referred to paragraph 12.4 of the
SAH, which sets forth the policy at issue. Id.; see IAF, Tab 20 at 38-40.
Moreover, the appellant specifically responded to the agency’s allegations
that the dates of signature set forth in the MOA were not accurate in his reply to
the notice of proposed removal. IAF, Tab 7 at 7. When an appellant comes
forward and addresses a charge made against him, the Board cannot find that he
was not given notice of the charge. Yinat v. Department of the Army ,
101 M.S.P.R. 328, ¶ 15 (2005). Thus, we find that the appellant received
sufficient notice of the second charge of violation of agency policy to make an
informed reply to the charge.
Finally, the appellant’s argument—that the administrative judge erred in
sustaining the second charge of violation of agency policy because the MOA used
to support the specifications were approved by his supervisors—is not a defense
to the charge, but it is relevant to whether the penalty of removal exceeded the
tolerable limits of reasonableness. PFR File, Tab 1 at 8-10; see Avant v.
Department of the Air Force , 71 M.S.P.R. 192, 201 (1996) (stating that the
appellant’s argument that his supervisor condoned his misconduct is not a defense
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to the charge but is relevant to penalty), overruled on other grounds by White v.
U.S. Postal Service , 71 M.S.P.R. 521 (1996); see also Canada v. Department of
Homeland Security , 113 M.S.P.R. 509, ¶¶ 18-19 (2010) (explaining that the
appellants’ claim that their supervisors authorized or condoned their consumption
of alcohol in response to a charge of conduct unbecoming was relevant as a
possible mitigating factor to the penalty). Accordingly, we address this argument
below as to whether the administrative judge properly found that the agency’s
penalty fell within the tolerable limits of reasonableness.
The administrative judge did not err in sustaining the charge of unauthorized use
of a law enforcement database.
The appellant also argues that the administrative judge erred in finding the
appellant’s coworker more credible than the appellant and thus concluding that
the agency proved that the appellant engaged in the unauthorized use of a law
enforcement database. PFR File, Tab 1 at 10-12. It is undisputed that the
coworker searched for the appellant’s former wife’s paramour in two law
enforcement databases, and that this search was not conducted for an authorized
purpose. However, the appellant disputed the agency’s allegation that he induced
his coworker to search the database for the paramour by telling the coworker that
the search was for an individual that was bothering one of the appellant’s
confidential informants. IAF, Tab 8 at 9-10; PFR File, Tab 1 at 10-11.
The appellant alleges that inconsistencies in his coworker’s testimony
render his explanation of the events in question implausible; however, we have
reviewed the record and find the administrative judge’s credibility findings to be
supported by the record. PFR File, Tab 1 at 10-12. The Board must defer to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on observing the demeanor of witnesses testifying at a hearing.
Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). Although
the Board may decline to defer to an administrative judge’s credibility findings
that are abbreviated, based on improper considerations, or unsupported by the
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record, Redschlag v. Department of the Army , 89 M.S.P.R. 589, ¶ 13 (2001), it
may not overturn an administrative judge’s demeanor-based credibility findings
merely because it disagrees with those findings, Purifoy v. Department of
Veterans Affairs , 838 F.3d 1367, 1372 (Fed. Cir. 2016) (quoting Haebe, 288 F.3d
at 1299). The administrative judge acknowledged that there was little physical
evidence to prove either the appellant’s or his coworker’s version of the events in
question and conducted a detailed assessment of the appellant’s and the
coworker’s testimony, ultimately finding the coworker’s version of the events
more credible than the appellant’s version. ID at 9-13. In particular, the
administrative judge found that the appellant’s testimony, in which he alleged
that his coworker volunteered to conduct the search after the appellant disclosed
his marital problems and that the search was not a serious act of misconduct
because he could gather information from publicly available sources, was less
plausible than the coworker’s testimony because he and the coworker were not
close friends, and he was on notice that his use of the databases was
unauthorized. ID at 10-13. Moreover, the administrative judge observed the
appellant’s testimony to be rehearsed and evasive, whereas the coworker’s
testimony was direct and detailed. ID at 12-13.
The appellant alleges that his coworker’s failure to tell the FBI about the
lunch he had with another special agent, during which he discovered that the
alleged confidential informant was the appellant’s former wife’s paramour, the
lack of evidence that the coworker reported the search to one of his supervisors,
and the coworker’s failure to log the search in an MOA render his testimony
implausible. PFR File, Tab 1 at 10-12. However, the special agent with which
the coworker had lunch corroborated that the lunch in question occurred. IAF,
Tab 39, Hearing Compact Disc (HCD) 3 (testimony of K.H.). The coworker also
explained that he would not have logged the search in an MOA because it did not
pertain to one of his investigations, and he did not recall whether he had logged
the search in his personal log. HCD 1 (testimony of M.R.). Finally, despite the
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lack of corroborating evidence of the coworker’s testimony that he reported the
search to a supervisor, the appellant does not cite evidence contradicting his
coworker’s testimony, and there is no reason to discredit the testimony. We thus
find no reason to disturb the administrative judge’s findings regarding the
coworker’s credibility.
Finally, the appellant does not dispute the administrative judge’s findings
that he provided the information that initiated the coworker’s search for the
paramour, that the search was conducted solely for the appellant’s personal use,
and that the appellant received training on database use, which would have
included information that searching databases for personal use is prohibited. ID
at 13-15. Thus, regardless of whether the coworker knew that the search was for
the appellant’s personal use, the administrative judge properly found that the
agency proved that the appellant used the databases for an unauthorized purpose.
The penalty of removal is the maximum reasonable penalty for the sustained
charges.
On review, the appellant does not dispute the administrative judge’s
decision to sustain one specification of the lack of candor charge or the finding
that the agency proved a nexus between the appellant’s misconduct and the
efficiency of the service, and we see no reason to disturb the administrative
judge’s well-reasoned findings on these matters.2 ID at 15-19; see Clay,
123 M.S.P.R. 245, ¶ 6.
The appellant argues, however, that the administrative judge erred in
sustaining the penalty of removal because he did not properly sustain the charge
of violation of agency policy and did not sustain several of the specifications of
the lack of candor charge. PFR File, Tab 1 at 12-13. As set forth above, we find
that the charge of violation of agency policy was comprised of violations of two
agency policies, properly constituting two separate charges, and that the agency
2 The agency has not challenged the administrative judge’s findings that did not sustain
portions of the agency’s charges. PFR File, Tab 1.
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did not prove the first charge but proved the second charge of violation of agency
policy, as well as the charge of unauthorized use of a Government database and
one specification of lack of candor. Concerning the lack of candor charge, proof
of one specification is sufficient to prove the charge as a whole, thus the
administrative judge properly sustained the charge upon sustaining one
specification of the lack of candor charge. Burroughs, 918 F.2d at 172; Alvarado
v. Department of the Air Force , 103 M.S.P.R. 1, ¶ 29 (2006), aff’d, 626 F. Supp.
2d. 1140 (D.N.M. 2009), aff’d, 490 F. App’x 932 (10th Cir. 2012).
When, as here, the agency proves fewer than all of its charges, the Board
may not independently determine a reasonable penalty. Lachance v. Devall ,
178 F.3d 1246, 1259 (Fed. Cir. 1999); Gray v. Government Printing Office ,
111 M.S.P.R. 184, ¶ 18 (2009). Rather, the Board may mitigate to the maximum
reasonable penalty so long as the agency has not indicated either in its final
decision or during proceedings before the Board that it desires that a lesser
penalty be imposed on fewer charges. Lachance, 178 F.3d at 1260; Gray,
111 M.S.P.R. 184, ¶ 18. Here, the deciding official testified that she would have
sustained the penalty of removal if she had sustained any one of the three original
charges. HCD 1 (testimony of the deciding official). As such, the Board may
impose the same penalty imposed by the agency based on a justification of that
penalty as the maximum reasonable penalty after balancing the mitigating factors.
Gray, 111 M.S.P.R. 184, ¶ 18. The Board’s function regarding its review of an
agency’s penalty selection is not to displace management’s responsibility, but to
determine whether management exercised its judgment within the tolerable limits
of reasonableness. Id. As set forth below, the appellant’s allegation that the
sustained charges do not support the penalty of removal is without merit.
The appellant has not shown that he was subjected to a disparate penalty.
On review, the appellant alleges that the administrative judge erred in
finding that three employees were not similarly situated to the appellant; he
contends that the three employees were placed on administrative leave for more
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egregious violations of agency policy but were returned to work. PFR File, Tab 1
at 13-15. The appellant also appears to argue that the administrative judge
improperly evaluated certain Douglas factors in reference to the alleged
comparator employees.3 Id. at 14-15. Although the administrative judge
acknowledged that the agency treated the appellant and the three alleged
comparators differently, he found that the misconduct was not comparable
because the other three employees were not charged with the same offenses as the
appellant.4 ID at 23-24.
Among the factors an agency should consider in setting the penalty for
misconduct is the “consistency of the penalty with those imposed upon other
employees for the same or similar offenses.” Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305 (1981). In assessing the agency’s penalty
determination, the relevant inquiry is whether the agency knowingly and
unjustifiably treated employees differently. Singh, 2022 MSPB 15, ¶ 14; see
Facer v. Department of the Air Force , 836 F.2d 535, 539 (Fed. Cir. 1988)
(providing that a person does not have a legally protected interest in the evenness
of a misconduct penalty assessed on him compared to that assessed on others
unless employees are knowingly treated differently “in a way not justified by the
facts, and intentionally for reasons other than the efficiency of the service”). To
establish disparate penalties among employees, the appellant must show that “the
charges and the circumstances surrounding the charged behavior are substantially
similar.” Miskill v. Social Security Administration , 863 F.3d 1379, 1384 (Fed.
Cir. 2017). The universe of potential comparators will vary from case to case, but
3 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors to be considered when evaluating the penalty
to be imposed for an act of misconduct.
4 The administrative judge also considered whether M.R. was similarly situated to the
appellant but did not find that they engaged in similar misconduct, and the appellant
does not dispute this finding on review. ID at 23-24.
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it should be limited to those employees whose misconduct or other circumstances
closely resemble those of the appellant. Singh, 2022 MSPB 15, ¶ 13.
Here, each of the three alleged comparators worked as criminal
investigators in the McAllen field office, and each alleged comparator was placed
on administrative leave pending the outcome of the investigation of the McAllen
field office, but none of the comparators were ultimately disciplined. IAF, Tab 8
at 17; Tab 32 at 113-21; HCD 2 (testimony of E.C., R.G., and R.V.). The
appellant alleged that the three employees engaged in similar misconduct to his
because they were placed on administrative leave for violating agency policy by
creating fraudulent MOA. PFR File, Tab 1 at 13-15. However, the administrative
judge properly found that the three employees did not engage in the same or
similar offenses as the appellant. ID at 23-24. Although the appellant and the
three comparator employees engaged in conduct that amounted to violations of
paragraph 12.4 of the SAH, none of the comparator employees also engaged in
the unauthorized use of a law enforcement database. HCD 2 (testimony of E.C.,
R.G., and R.V.). Moreover, there is no evidence that the comparator employees
lacked candor; to the contrary, the deciding official and the three comparator
employees testified that the comparator employees affirmatively notified agency
or FBI investigators of improper MOA preparation. HCD 1 (testimony of the
deciding official); HCD 2 (testimony of the deciding official, E.C., R.G., and
R.V.).
The appellant argues that Boucher v. U.S. Postal Service , 118 M.S.P.R. 640
(2012), supports his argument that the three employees are comparable even
though he engaged in more misconduct than the other three employees. PFR File,
Tab 1 at 13. However, the Board recently reexamined the disparate penalty
analysis in Boucher and its progeny and determined that the Board in Boucher did
not find that the comparator employees at issue had engaged in the same or
similar offenses as the appellant, as required by Douglas, 5 M.S.P.R. at 305.
Singh, 2022 MSPB 15, ¶ 17. The Board thus overruled Boucher to the extent that
14
it held that the disparate penalty analysis should extend beyond the same or
similar offenses. Id. Under Singh, the Board will not attempt to weigh the
relative seriousness of various offenses to determine whether two employees who
committed different acts of misconduct were treated disparately. Id. Rather, the
misconduct of similarly situated employees must closely resemble that of the
appellant. Id., ¶ 13. Here, the appellant’s unauthorized use of a Government
database and lack of candor rendered his misconduct incomparable to that of the
other three employees, who only arguably violated agency policy in their
preparation of MOA. ID at 23-24; see Singh, 2022 MSPB 15, ¶¶ 16-17
(concluding that Boucher did not find that the comparator had engaged in the
same or similar misconduct as the appellant when, among other factors, the
appellant was charged with possession of both marijuana and cocaine, but the
comparator was charged only with possession of marijuana and was not arrested
on or near agency property).
Moreover, the consistency of the penalty with those imposed upon other
employees for the same or similar offenses is simply one of a nonexhaustive list
of 12 factors that are relevant for consideration in determining the
appropriateness of a penalty. Singh, 2022 MSPB 15, ¶ 18. Our review of each of
the factors considered by the deciding official in determining that removal was
the appropriate penalty leads us to conclude that removal is the maximum
reasonable penalty to be imposed for the charges sustained.
The deciding official considered the relevant Douglas factors in sustaining the
penalty of removal.
The most important factor in assessing whether the agency’s chosen
penalty falls within the tolerable limits of reasonableness is the nature and
seriousness of the misconduct and its relation to the employee’s duties, position,
and responsibilities. Edwards v. U.S. Postal Service , 116 M.S.P.R. 173, ¶ 14
(2010). As set forth in the administrative judge’s findings, the deciding official
testified that she considered the appellant’s misconduct very serious, particularly
15
because the appellant’s credibility was necessary to his position as a law
enforcement officer and a senior criminal investigator in the McAllen field office
who interacted with the public and other law enforcement agencies. HCD 1
(testimony of the deciding official). She also testified that she held the appellant
to a higher standard because he was a law enforcement officer and investigator
for the OIG, and thus he must be beyond reproach as a “guard of the guards.” Id.
The deciding official further testified that she was no longer confident in his
ability to prepare accurate information as a criminal investigator. Id.
The deciding official also found that the appellant could not be
rehabilitated because he made excuses for his behavior and downplayed the
seriousness of backdating MOA; moreover, he did not express remorse for his
actions. Id. She further testified that she considered that the appellant’s
misconduct reflected poorly on the reputation of the agency’s agents. Id. The
deciding official also testified that she considered the appellant’s lack of a past
disciplinary history, his years of service, his demanding position and challenging
workload, and his marital problems as mitigating factors, but she found that these
mitigating factors did not outweigh the seriousness of the offense and other
aggravating factors. Id.
In reviewing the penalty of removal, the administrative judge found the
deciding official’s testimony regarding her considerations credible and concurred
in her assessment of the Douglas factors. ID at 19-26. He also considered the
appellant’s argument that the agency’s decision to investigate and remove him
was in retaliation for declining to cooperate with the FBI investigation and the
exercise of his Fifth Amendment right not to testify before a grand jury
investigating the McAllen office, but the administrative judge found no evidence
of retaliation. ID at 24-25. On review, the appellant argues that the
administrative judge erred in finding no retaliation because, unlike the three other
employees he alleged committed similar misconduct, he did not falsify MOA and
thus did not have any evidence against his supervisors. PFR File, Tab 1 at 15-16.
16
The appellant’s argument is premised on the testimony of certain agency officials
that they believed the appellant to be withholding information regarding the
McAllen office investigation and that the proposing official considered that three
employees cooperated with the FBI investigation and testified against their
supervisor in determining the penalty to impose against other employees. IAF,
Tab 8 at 17; HCD 1 (testimony of the proposing official); HCD 2 (testimony of
D.G.); PFR File, Tab 1 at 15-16. Thus, the appellant’s argument is directed not at
retaliation for the exercise of a constitutional right but at the agency’s rejection of
the other employees as comparators because they were forthcoming about their
actions in connection with the events giving rise to the McAllen office
investigation, whereas the appellant was not forthcoming. As set forth above,
even if these three employees could be considered to have committed the same
misconduct as the appellant regarding the preparation of MOA, they cannot be
considered comparators because they did not commit the additional misconduct
that the appellant committed.
The administrative judge also considered the appellant’s argument that
backdating MOA was a common practice in the McAllen field office as part of his
analysis of the charge of violation of agency policy, but he did not examine the
appellant’s argument that his supervisors condoned the errors in the dates on
which he signed MOA as part of the penalty analysis. ID at 7-8. Although the
issue of whether the appellant’s supervisors condoned the errors in the dates the
appellant signed MOA by signing the MOA themselves could serve to mitigate
the penalty, it is not necessary to determine the extent to which it could serve as a
mitigating factor because we find that the penalty of removal falls within the
tolerable limits of reasonableness for the appellant’s other misconduct. See
Canada, 113 M.S.P.R. 509, ¶¶ 19-20. The deciding official considered the
appellant’s unauthorized access of a law enforcement database serious because it
could constitute criminal conduct, and she similarly considered his lack of candor
serious given that it reflected poorly on his credibility and ability to perform his
17
duties as a law enforcement officer. HCD 1 (testimony of the deciding official).
We find, as did the administrative judge, that it was appropriate for the deciding
official to hold a law enforcement officer to a higher standard of conduct,
particularly when the appellant’s misconduct implicated his honesty and integrity.
See Jones v. Department of Justice , 87 M.S.P.R. 91, ¶ 12 (2000) (finding that
despite his 25 years of Federal service, removal was a reasonable penalty for an
immigration inspector who provided false information). The appellant’s
misconduct was extremely serious, particularly for a law enforcement officer who
investigated other agency employees’ criminal misconduct. IAF, Tab 8 at 16-17.
We find that the deciding official considered the factors most relevant to the
penalty in this case and reasonably exercised her management discretion; thus,
the penalty of removal falls within the tolerable limits of reasonableness as to the
remaining two charges. We affirm the administrative judge’s initial decision
sustaining the appellant’s removal.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
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.
18
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
19
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
20
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
21
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Garcia_CamiloDA-0752-16-0324-I-1_Final_Order.pdf | 2024-01-22 | CAMILO GARCIA v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-16-0324-I-1, January 22, 2024 | DA-0752-16-0324-I-1 | NP |
2,513 | https://www.mspb.gov/decisions/nonprecedential/Bland_Frederick_J_DE-0831-22-0120-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FREDERICK J. BLAND,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
DONNA E. BLAND, PH.D.
Intervenor.DOCKET NUMBER
DE-0831-22-0120-I-1
DATE: January 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
F
rederick J. Bland , Grand Junction, Colorado, pro se.
Carla Robinson , Washington, D.C., for the agency.
Donna E. Bland , Livingston, Texas, 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).
2
FINAL ORDER
The intervenor has filed a petition for review of the initial decision, which
reversed a final decision issued by the Office of Personnel Management (OPM)
finding that she was entitled to a portion of the Civil Service Retirement System
annuity benefits of her former spouse, i.e., the appellant. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. §
1201.113(b).
We have considered all of the intervenor’s arguments on review; however,
we find that none provide a basis to disturb the administrative judge’s conclusion
that the intervenor did not provide a court order that met the minimum
requirements of 5 C.F.R. part 838, subpart C such that it was acceptable for
processing by OPM. Petition for Review (PFR) File, Tab 1; Initial Appeal File
(IAF), Tab 33, Initial Decision (ID) at 4-7. As set forth in the initial decision, an
individual in the intervenor’s position may obtain and present a new, clarifying
court order to OPM for a new determination. ID at 7 (citing West v. Office of
Personnel Management , 105 M.S.P.R. 559, ¶ 15 (2007)).
3
The intervenor seemingly asserts that she was not given a sufficient
opportunity to present her case. PFR File, Tab 1 at 16. To this end, she avers
that she was not provided with an opportunity to speak to the administrative
judge. Id. We find her assertions unavailing. Indeed, intervenors do not have
an independent right to a hearing. 5 C.F.R. § 1201.34(d)(1). Here, because the
appellant did not request a hearing, IAF, Tab 1 at 2, the administrative judge
decided the matter based on the written record, ID at 2. The administrative judge,
however, provided the intervenor with an opportunity to present written evidence
and argument prior to the issuance of the initial decision. E.g., IAF,
Tab 22 at 1-2, Tab 29 at 1-2. To the extent the intervenor argues that she was
improperly excluded from a status conference, she fails to explain how this
exclusion affected her substantive rights; indeed, she fails to present any evidence
or argument on review sufficient to warrant a different outcome. See Karapinka
v. Department of Energy , 6 M.S.P.R. 124, 127 (1981) (explaining that the
administrative judge’s procedural error is of no legal consequence unless it is
shown to have adversely affected a party’s substantive rights).
Although we acknowledge the severe inequities associated with the
circumstances presented, as explained in the initial decision, the intervenor’s
remedies lie with the state court, not the Board. Indeed, she may seek an
amended court order that she may present to OPM for a new determination. ID
at 7; see West, 105 M.S.P.R. 559, ¶ 15; see also 5 C.F.R. § 838.225(a) (permitting
“an amended court order pertaining to payment of a portion of the employee
annuity”).
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.
4
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
6
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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
7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Bland_Frederick_J_DE-0831-22-0120-I-1_Final_Order.pdf | 2024-01-22 | FREDERICK J. BLAND v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0831-22-0120-I-1, January 22, 2024 | DE-0831-22-0120-I-1 | NP |
2,514 | https://www.mspb.gov/decisions/nonprecedential/Morris_Carl_C_DC-0752-17-0441-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARL C. MORRIS,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
DC-0752-17-0441-I-1
DATE: January 19, 2024
THIS ORDER IS NONPRECEDENTIAL1
Carl C. Morris , Prince Frederick, Maryland, pro se.
Paul Sanchez , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1The appellant has filed a petition for review and the agency has filed a cross
petition for review of the initial decision, which reversed the appellant’s removal
and denied his affirmative defenses. For the reasons discussed below, we
GRANT the agency’s cross petition for review and VACATE the portion of the
initial decision that found that the agency failed to prove its charge. We
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
REMAND the appeal for further analysis of the agency’s charge and, if necessary,
analyses of the nexus between the sustained misconduct and the efficiency of the
service, as well as the reasonableness of the penalty. We DENY the appellant’s
petition for review.
BACKGROUND
¶2The appellant most recently held the GS-14 position of Mathematical
Statistician at the agency’s Office of Statistical and Economic Analysis (OSEA),
within the Bureau of Transportation Statistics (BTS). Initial Appeal File (IAF),
Tab 4 at 41. In October 2016, the appellant’s first-line supervisor—the Assistant
Director of OSEA—informed the appellant that the agency was placing him on a
performance improvement plan (PIP). E.g., id. at 61, 102. She then scheduled a
meeting with him to discuss the PIP, later that same day, so the appellant could
review the associated materials in the interim. Id. at 61-62, 102.
¶3When the Assistant Director scheduled the aforementioned meeting to
discuss the PIP, the appellant requested a neutral observer. Id. at 62, 103. The
Assistant Director then moved the meeting to the BTS Director’s office, but the
appellant objected, asserting that the BTS Director was not a neutral observer.
Id. at 62, 76, 103. He further asserted that if a neutral observer was not arranged,
he would consider it a “direct threat to [his] safety.” Id. at 76. Ultimately, a
different third-party observer—the Associate Director of Physical and Technical
Security—agreed to attend the PIP meeting. Id. at 62, 76, 103.
¶4At the scheduled PIP meeting with the Assistant Director and the third -party
observer, the appellant took out a pair of glasses, then reached into his pocket and
pulled out a knife. Id. at 62, 103. While the parties have described the exact
language the appellant used differently, they all agree that he stated something to
the effect of, “This is not a threat. I need to fix my glasses. I always carry a
pocketknife.” Id. at 62, 103, 107; Hearing Transcript, Day 1 (HT1) at 288-892
(testimony of the appellant); Hearing Transcript, Day 2 (HT2) at 374-75
(testimony of the third-party observer), 456 (testimony of the Assistant Director).
¶5When the PIP meeting ended, the Assistant Director returned to her office
and locked the door. IAF, Tab 4 at 103. There appears to be no dispute that she
found the appellant’s actions unsettling. In both a contemporaneous email she
sent to the BTS Director, and a subsequent memorandum she drafted with further
details, the Assistant Director described herself as shaking and scared. Id.
at 103-04, 107. A memorandum from the BTS Director reflects similarly,
detailing how she went to check on the Assistant Director and found her shaking
and crying behind her locked office door. Id. at 100. The third-party observer’s
memorandum about the incident described the appellant’s behavior as “very
inappropriate,” and indicated that he had “succeeded in intimidating” the
Assistant Director. Id. at 105-06.
¶6The agency proposed the appellant’s removal based on a single charge of
conduct unbecoming. Id. at 95-98. The corresponding narrative provided as
follows:
On Monday October 24, 2016, you met with your supervisor, [the
Assistant Director] at approximately 3:00 PM to discuss a Notice of
Unacceptable Performance and Opportunity to Improve that was
issued to you that morning. At your behest, [the third-party
observer] attended this meeting as a neutral observer. You started
the discussion by stating that the Notice was issued in retaliation for
several complaints you had filed with the Departmental Office of
Civil Rights and accused [the Assistant Director] of changing the
standards and deliverables described in your performance plan.
After explaining that this was untrue, [the Assistant Director]
expressed that the purpose of the meeting was not to argue about the
contents of the notice but to walk through the plan, provide you an
opportunity to ask questions, and set out the first tasks. You then
took out a computer tablet and a pair of black framed glasses. You
reached into the front right pocket of your pants and pulled out a
pocket knife while stating, “This is not a threat. I need to fix my
glasses.” You then proceeded to adjust the glass frames with your
knife. While engaged in this activity, you looked at [the Assistant
Director] and stated, “I always carry a knife.” [The Assistant3
Director] quickly ended the meeting after you produced the knife and
agreed to send future work requests by email. She returned to her
office and locked the door.
[The Assistant Director] prepared a statement to document the
October 24th meeting. In this statement she expressed that she found
both your words and your actions confusing because she did not
recall having ever seen you with glasses before that moment. She
also stated that she had never seen you with a knife, nor heard you
discuss carrying one on your person. Her statement clearly conveyed
that she was fearful for her safety after this incident. This is
corroborated by a statement prepared by [the third-party observer].
He explained that he went to [the Assistant Director’s] office
following the meeting and had to identify himself after knocking
before she would unlock her door to let him in. When [the Assistant
Director] opened the door to [the third-party observer], she expressed
to him that she was very shaken by the appearance of the knife.
[The BTS Director] also provided a statement in which she described
[the Assistant Director’s] appearance and reaction immediately after
the incident. [The BTS Director] indicated that she went to see [the
Assistant Director] after receiving her email reporting the incident.
[The BTS Director] explained that she had to knock on [the Assistant
Director’s] locked door and identify herself before [the Assistant
Director] opened the door. [The BTS Director] observed that, when
[the Assistant Director] finally did open the door, she was shaking
and crying. [The BTS Director] told her to go home and suggested
that she telework the following Monday, October 31, 2016, so that
she would not have to be in the office with you.
After meeting with [the Assistant Director], [the BTS Director] sent
an email to [the Assistant Secretary for Research and Technology
(OST-R)], and [the Executive Director of OST-R] to notify them of
this incident. In this email, she explained that, as a direct result of
this incident, [the Assistant Director] no longer felt free to maintain
the open door office policy she used to practice. This observation
was confirmed in an email [the Assistant Director] sent on
October 31, 2016, in which she stated her intent to remain in her
locked office while you are present at the worksite. Consequently,
you were placed on administrative leave to ensure that you would no
longer disrupt the office environment.
While it is unclear whether the knife you exhibited exceeded the
2-and-a-half inch limit that is permissible on Federal facilities, it is
my belief that the timing and circumstances surrounding this incident4
convey your deliberate efforts to intimidate and cause anxiety to
your supervisor. As such your conduct was disruptive to the
workplace and cannot be tolerated.
Id. at 95-96. In the penalty portion of the proposed removal, the proposing
official described how the agency had previously issued the appellant a written
reprimand for rude and disrespectful behavior in one instance and a 5-day
suspension for conduct unbecoming and failure to follow supervisory instructions
in another. Id. at 96. He further described how the appellant’s latest actions
reflected an increase in the severity of his misconduct, and the Assistant Director
no longer felt that she could move about the office freely and safely. Id. at 96-97.
¶7The appellant responded to his proposed removal, acknowledging that he
pulled out the knife during the PIP meeting, but denying that he did so to
purposefully intimidate or scare the Assistant Director. Id. at 51-63. The
deciding official sustained the removal, id. at 41-44, and this appeal followed,
IAF, Tab 1.
¶8After developing the record and holding the requested hearing, the
administrative judge reversed the appellant’s removal. IAF, Tab 83, Initial
Decision (ID) at 1. He found that the gravamen of the agency’s charge was that
the appellant deliberately intimidated his supervisor, thereby disrupting the
workplace, but the charge failed because the agency was unable to prove the
appellant’s intent. ID at 2-9. The administrative judge then considered but
denied the appellant’s claims of equal employment opportunity (EEO) reprisal
and discrimination, ID at 9-13, whistleblower reprisal, ID at 13-16, harmful
procedural error, and violation of his right to due process, ID at 16-17.
¶9The appellant has filed a petition for review, where he appears to reassert
each of the affirmative defenses addressed below. Petition for Review (PFR)
File, Tab 1. The agency has filed a cross petition for review, arguing that the
administrative judge erred in finding the charge unproven. PFR File, Tab 3.
Each party filed a response. PFR File, Tabs 7-8. 5
¶10In addition to the aforementioned pleadings, the appellant moved to dismiss
the agency’s cross petition for review because the agency indicated that it
intended to provide interim relief, but it had not done so by the time of its cross
petition. PFR File, Tab 6 (referencing PFR File, Tab 4 at 4). That motion is
denied. The agency presented argument and evidence that it did provide interim
relief over the weeks that followed its cross petition for review, and the appellant
has not presented any argument or evidence to the contrary, despite having the
opportunity to do so. Compare PFR File, Tab 9 (the Board’s show cause order,
requesting additional information about the status of interim relief from both
parties), with PFR File, Tab 10 (the agency’s response, with argument and
evidence that it had reinstated the appellant and provided him with back pay).
DISCUSSION OF ARGUMENTS ON REVIEW
We remand this appeal for further analysis of the agency’s charge.
¶11As previously stated, the administrative judge found that the gravamen of
the agency’s conduct unbecoming charge was that the appellant engaged in
“deliberate efforts to intimidate and cause anxiety to [his] supervisor,” thereby
causing “disrupti[on] to the workplace.” IAF, Tab 77 at 1; ID at 2. We agree
with this interpretation of the charge, which the agency does not dispute in its
cross petition for review. What the agency does dispute is the administrative
judge’s conclusion that the agency failed to establish the requisite element of
intent. E.g., PFR File, Tab 3 at 9-18. On that point, we find that remand is
required for further adjudication.
¶12There is little disagreement about the appellant’s actions, despite the
substantial disagreement about what he intended and some conflicting accounts
about his particular word choice, the timing of his actions, and the size of the
knife. Most notably, the appellant has acknowledged that he insisted upon a
neutral observer at the PIP meeting for his own safety and, during that meeting,6
he pulled out a knife while stating, “this is not a threat,” and indicating that he
needed to fix his glasses. IAF, Tab 4 at 62, 76.
¶13There is also an abundance of evidence reflecting the impact of the
appellant’s actions. Contemporaneous documents and hearing testimony from
multiple individuals all demonstrate that the Assistant Director was unsettled by
the appellant’s actions, so much so that she returned to her office shaking and
crying; she locked her door out of fear for her safety; and she limited the amount
of time spent outside her locked office. E.g., IAF, Tab 4 at 100, 103-07; HT1
at 93, 96 (testimony of the BTS Director); HT2 at 387 (testimony of the
third-party observer), 469 (testimony of the Assistant Director). While the
appellant has offered rationales for why he did not believe the Assistant Director
should have been fearful, including his assertion that she is a “Texan with a black
belt,” IAF, Tab 4 at 53, he has not substantively or persuasively argued that she
was not fearful. In fact, the appellant asserted that the Assistant Director was
“extremely nervous” even before he pulled out his knife.2 HT1 at 272-73
(testimony of the appellant). He also acknowledged that he was upset with the
Assistant Director, he had animosity toward her, and his PIP meeting with her
was heated. Id. at 274, 281, 288 (testimony of the appellant). Further, the
appellant testified that, in hindsight, “it was a misjudgment to pull [his] pocket
knife out of [his] pocket in that situation.” Id. at 283 (testimony of the
appellant).
¶14So, the question that remains is whether the appellant intended to intimidate
his supervisor. The administrative judge found that the agency failed to prove
this element. ID at 4-9. He determined that there was no basis for concluding
that the appellant had any reason for his actions other than the reason the
appellant provided—that he only pulled out a knife during the PIP meeting to
2 The appellant surmised that the Assistant Director was most likely nervous because
she was being manipulated and coerced into lying about both the appellant’s conduct
and performance to ultimately have him removed, and she knew what she was doing
was wrong. HT1 at 273-82 (testimony of the appellant).7
adjust his glasses. ID at 8. The administrative judge characterized this
explanation as “unchallenged.” ID at 9. However, one of the allegations
underlying the agency’s charge did challenge that explanation. The agency
alleged that it believed the appellant had deliberately acted as he did to intimidate
his supervisor. IAF, Tab 4 at 96. Moreover, that supervisor and witness to the
appellant’s actions, the Assistant Director, provided direct testimony about what
she believed the appellant intended—that he “clearly wanted [her] to feel
threatened,” and “very clearly wanted [her] to feel that [she] would not be safe in
the office.” HT2 at 537 (testimony of the Assistant Director). Accordingly, we
disagree with the administrative judge’s description of the appellant’s explanation
as unchallenged.
¶15At the heart of this appeal is a dispute about whether the appellant intended
to merely adjust his glasses, as the appellant alleged, or intended to intimidate his
supervisor under the guise of adjusting his glasses, as the agency alleged.
Resolution of that dispute requires a thorough credibility determination about the
appellant’s explanation for his actions. To resolve credibility issues, an
administrative judge must identify the factual questions in dispute, summarize the
evidence on each disputed question, state which version he believes, and explain
in detail why he found the chosen version more credible, considering such factors
as: (1) the witness’s opportunity and capacity to observe the event or act in
question; (2) the witness’s character; (3) any prior inconsistent statement by the
witness; (4) a witness’s bias, or lack of bias; (5) the contradiction of the witness’s
version of events by other evidence or its consistency with other evidence; (6) the
inherent improbability of the witness’s version of events; and (7) the witness’s
demeanor. Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987).
Although the administrative judge did not explicitly indicate that he was making a
credibility determination, he generally alluded to some credibility factors to
determine that the agency failed to prove the appellant’s intent. To the extent
that this constituted a credibility determination, we find it incomplete. 8
¶16The administrative judge found that the appellant had consistently provided
the same explanation for his actions—a loose screw in his glasses—and that
explanation was consistent with all witnesses’ recollection of him then acting as
if he was using the knife to adjust his glasses. ID at 7-8. He further found that
while this may have been “odd behavior,” it was plausible that the appellant
intended to adjust his glasses without intending to intimidate his supervisor. ID
at 8. However, there were other factors that the administrative judge did not
explicitly address in the initial decision, which we find especially relevant.
¶17For example, while the appellant’s explanation for his actions is plausible,
it seems somewhat improbable that the appellant had no ulterior motive for
displaying his knife, given the attendant circumstances. Among other things,
those circumstances include the appellant’s report from a few months before that
his family was concerned management may try to kill him, IAF, Tab 82 at 1-2, his
demand for a third-party observer at the PIP meeting for his own safety, IAF,
Tab 4 at 76, his admitted animosity toward the Assistant Director and belief that
she had concocted unfounded rationales for the PIP as a pretext to have him
removed, HT1 at 273-82 (testimony of the appellant), and the appellant’s other
actions during the PIP meeting, which the third-party observer described as
argumentative and the administrative judge described as cantankerous, IAF, Tab 4
at 105; HT2 at 374, 378 (testimony of the third-party observer); ID at 8.
¶18Another factor that may weigh against the appellant’s credibility about his
intent when displaying the knife is his character, which the administrative judge
described elsewhere in the initial decision as including extreme and volatile
sensitivity to criticism. See ID at 11. With that description, the administrative
judge also recounted a prior instance where the appellant reportedly yelled at the
Assistant Director and others during a discussion of his work performance, the
numerous witnesses to the incident, and the appellant’s apparent claim that these
witnesses were conspiring to make false claims about the incident. See ID
at 11-12. If the appellant provided false testimony about the incident, that could9
call into question the truthfulness of the appellant’s claims concerning his intent
with the knife. See Skellham v. U.S. Postal Service , 90 M.S.P.R. 361, ¶ 13 (2001)
(stating that an individual’s false statement regarding one matter may call into
question her credibility regarding other matters as well).
¶19One of the other factors that may be relevant to the question at hand is the
various witnesses’ demeanor. The administrative judge, as the hearing officer, is
in the best position to assess the various witnesses’ demeanor. Parker v.
Department of Veterans Affairs , 122 M.S.P.R. 353, ¶ 7 (2015); see Haebe v.
Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002).
¶20In sum, the appellant’s intent was disputed and the administrative judge
erred in suggesting otherwise. Plus, the administrative judge did not make the
detailed credibility findings necessary to decide the appellant’s intent. We
therefore vacate his determination that the agency failed to prove the intent
element of its charge, and we remand the matter for further adjudication. In a
remand initial decision, the administrative judge should ensure that the analysis
of the appellant’s intent and the agency’s charge includes credibility
determinations that consider the factors we discussed above and any others the
administrative judge deems relevant.
The appellant failed to establish his affirmative defenses.
¶21The administrative judge considered but denied the appellant’s claims of
EEO reprisal and discrimination, ID at 9-13, whistleblower reprisal, ID at 13-16,
harmful procedural error, and violation of his right to due process, ID at 16-17.
On review, the appellant has at least alluded to each, so we will address each in
turn. PFR File, Tab 1 at 4-25.
Discrimination and EEO reprisal
¶22Throughout this appeal, both below and on review, the appellant has
presented exhaustive allegations of wrongdoing that are, at times, difficult to10
reconcile with the specific matters at issue in this removal appeal.3 E.g., IAF,
Tab 70 at 6-13; PFR File, Tab 1 at 4-26. For example, the appellant’s statement
of facts on review contains assertions of wrongdoing dating back to 2010,
six years before his removal. PFR File, Tab 1 at 6-21. Among them are
allegations that management has subjected both him and others to discrimination
and reprisal through a pattern of defamation, the withholding of promotions, the
imposition of discipline, and the lowering of performance ratings. E.g., id.,
at 4, 7.
¶23To the extent that the appellant presented discrimination and EEO reprisal
affirmative defenses, the administrative judge summarized them as follows: The
appellant filed 11 EEO complaints between February 2010 and August 2016. ID
at 11. He also had an accident in 2011, resulting in reconstructive surgery and a
slight facial disfigurement. Id. According to the appellant, the agency both
retaliated against him based on his EEO activity and discriminated against him
based on a perception that he had a disability—brain damage. Id. He attempted
to support these claims by recounting a lengthy history of contentiousness. Id.
¶24In analyzing the appellant’s claims of discrimination and retaliation for
prior EEO activity, the administrative judge applied the standard set forth by the
Board in Savage v. Department of the Army , 122 M.S.P.R. 612 (2015), clarified
by Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647, ¶¶ 30-31
(2016), and Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 23-24. Applying that standard, the administrative judge found that the
appellant failed to prove by preponderant evidence that his perceived disability or
his prior EEO activity was a motivating factor in the agency’s actions. ID
at 11-13.
3 In a separate individual right of action appeal, the appellant alleged that the agency
had committed 33 personnel actions in retaliation for his protected whistleblowing
activity, but that case was dismissed for lack of jurisdiction. See, e.g., Morris v.
Department of Transportation , MSPB Docket No. DC-1221-17-0355-W-1, Initial
Decision (Jan. 12, 2018). The appellant petitioned for review of that initial decision,
and we will issue a separate decision resolving that petition for review.11
¶25Title VII of the Civil Rights Act of 1964, as amended, requires that Federal
personnel actions “shall be made free from any discrimination based on race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). An appellant
may prove an affirmative defense of discrimination or retaliation under this Title
by showing that the prohibited consideration was at least a motivating factor in
the contested personnel action. Pridgen, 2022 MSPB 31, ¶¶ 20-24 40-42. This
same burden applies to an affirmative defense of disparate treatment disability
discrimination. Id., ¶¶ 40, 42. However, to prove a claim of retaliation under
the Rehabilitation Act of 1973, the appellant must prove but -for causation, which
is a higher burden than motivating factor. Id., ¶¶ 44-48.
¶26In this case, the administrative judge found that the appellant did not prove
that any form of prohibited discrimination or retaliation was a motivating factor
in his removal. IAF, Tab 77 at 2-4; ID at 9-11. In short, he found that while the
record reflected ongoing workplace dysfunction, that dysfunction was
consistently generated by the appellant’s extreme sensitivity to criticism and
refusal to accept appropriate supervision, not discrimination or EEO reprisal. ID
at 11-13. We agree. To the extent that the administrative judge should have
applied a but-for rather than a motivating factor standard to some of these claims,
the appellant’s substantive rights were not prejudiced; because the appellant did
not prove motivating factor causation, be necessarily did not prove but -for
causation. See Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 33 (modifying
an initial decision to recognize that the more stringent but -for standard applied
because an employee’s EEO reprisal claim arose under the Rehabilitation Act,
while affirming the administrative judge’s conclusion that the employee failed to
satisfy even the lesser motivating factor standard); Haas v. Department of
Homeland Security , 2022 MSPB 36, ¶¶ 31-34 (same).
¶27In his petition for review, the appellant asserts that he “indisputably
showed” that “he was treated disparately as compared to before” his 2010 EEO
activity. PFR File, Tab 1 at 23. This assertion is accompanied by a citation to a12
single document in the record. That document is a timeline he created, dating
back to 2005, wherein the appellant identifies things such as his EEO activity, his
performance ratings, disciplinary actions, and what he characterizes as physical
security threat surveillance. IAF, Tab 69 at 4, Tab 70 at 17. The appellant also
asserts that he “indisputably showed” that management began fabricating
defamatory rumors about him being dangerous in February 2014, in relation to a
perceived disability that became a pretext for his eventual removal. PFR File,
Tab 1 at 23.
¶28Even if the appellant’s timeline is an accurate representation of events, we
do not find it persuasive. The appellant’s timeline identifies 23 dates on which he
either made initial EEO contact or filed a formal EEO complaint over 7 years,
along with 3 dates on which he was disciplined, 3 dates he identifies as threat
surveillance, and the dates of his annual performance ratings. Without more, we
do not find the timing of any of these actions particularly suspicious. See
Pridgen, 2022 MSPB 31, ¶ 24 (describing various types of evidence in support of
a discrimination claim, such as direct evidence, suspicious timing, ambiguous
statements, behavior towards other in the protected group, and other bits and
pieces from which an inference of improper motive might be drawn).
¶29More broadly, while we have considered all of the appellant’s arguments
and assertions, to the extent that they are relevant in this removal appeal, we
discern no basis for concluding that he has proven either disability discrimination
or EEO reprisal by preponderant evidence. The appellant has presented little
more than disagreement with the administrative judge’s conclusion that the
longstanding contentiousness reflected throughout the record is attributable to the
appellant, not discrimination or EEO reprisal—a conclusion with which we agree.
See Gardner, 123 M.S.P.R. 647, ¶¶ 31-32 (finding that an administrative judge
properly considered the evidence as a whole in finding that an employee failed to
prove her discrimination and EEO reprisal claims, and her arguments on review
amounted to mere disagreement). 13
¶30We separately note that the appellant alluded to sex discrimination, both
below and on review, IAF, Tab 70 at 6-7; PFR File, Tab 1 at 7, 21, but the initial
decision only explicitly addressed disability discrimination, ID at 9-13. To the
extent that the appellant intended to bring an affirmative defense of sex
discrimination separate from his disability discrimination claim, we find that it
similarly fails. In vaguely referring to sex discrimination, the appellant cited the
same timeline discussed above. E.g., IAF, Tab 70 at 6, 17; PFR File, Tab 1 at 21.
That timeline seems to suggest that some women were rated higher than the
appellant and some other men between 2010 and 2016, and one “younger female
comparator” in particular was promoted from GS-09 to GS-14 over a 5 -year
period, as the appellant remained a GS-14. IAF, Tab 70 at 6-7, 17. Even if we
accept the facts in the timeline as true, the appellant has not directed us to
anything that would establish, by preponderant evidence, that his removal was
improperly motivated by sex. His speculation, based on vague comparisons and
unsupported by persuasive evidence, is insufficient.
Whistleblower reprisal
¶31When whistleblower reprisal claims are made in the context of an otherwise
appealable action, as here, the appellant must prove by preponderant evidence
that he made a protected disclosure pursuant to 5 U.S.C. § 2302(b)(8) or engaged
in protected activity as defined in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), and (D)
and that the disclosure or protected activity was a contributing factor in the
personnel action at issue. Pridgen, 2022 MSPB 31, ¶ 49; Ayers v. Department of
the Army, 123 M.S.P.R. 11, ¶ 12 (2015); Alarid v. Department of the Army ,
122 M.S.P.R. 600, ¶ 12 (2015); see 5 U.S.C. § 1221(e)(1). If the appellant makes
this showing, the burden shifts to the agency to prove by clear and convincing
evidence that it would have taken the personnel action absent the protected
disclosure or activity. Pridgen, 2022 MSPB 31, ¶ 49.
¶32A protected disclosure is a disclosure of information that the appellant
reasonably believes evidences any violation of any law, rule, or regulation, gross14
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8); Shannon v.
Department of Veterans Affairs , 121 M.S.P.R. 221, ¶ 22 (2014). To demonstrate
that he had a reasonable belief that he made a protected disclosure, an appellant
need prove only that a disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the employee could reasonably
conclude that the agency’s actions evidenced one of the categories of wrongdoing
listed in 5 U.S.C. § 2302(b)(8). Shannon, 121 M.S.P.R. 221, ¶ 22.
¶33To prove the contributing factor criterion, an appellant may rely on 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 the
personnel action, whether the whistleblowing was personally directed towards the
official taking the action, or whether these individuals had a desire or motive to
retaliate against the appellant. Id., ¶ 15.
¶34Although the appellant generally alleged that his removal was the result of
whistleblower reprisal, the administrative judge found that the precise scope and
nature of his alleged whistleblowing was largely unclear. ID at 15. He
recognized that one alleged disclosure the appellant raised pertained to an EEO
complaint. Id. (referencing IAF, Tab 70 at 39-40).4 In short, the appellant
emailed several agency officials to assert that the agency’s incomplete response
to a discovery request was felonious and constituted a possible violation of
4 The administrative judge cited a different piece of evidence, but it appears that this
was a typo. Compare ID at 15 (citing IAF, Tab 30 at 4-5), with IAF, Tab 70 at 39-40.15
perjury and obstructions statutes. IAF, Tab 70 at 39-40. The administrative
judge also recognized that the appellant referenced complaints he raised about
him and a co -worker being bullied by supervisors with respect to work
assignments and performance evaluations. ID at 15; see Hearing Transcript,
Day 3 (HT3) at 557-59 (testimony of coworker), 659-60 (closing argument of the
appellant); IAF, Tab 74 at 34-35. However, the administrative judge found that
the appellant failed to meet his burden of proving that either of these alleged
disclosures was protected. ID at 15-16.
¶35On review, the appellant alleges that he “documented in the record his
disclosures of violations of laws and regulations and abuses of authority from
July 2010 on.” PFR File, Tab 1 at 5 (citing IAF, Tab 35 at 4; Tab 36 at 4; Tab 37
at 4; Tab 38 at 4; Tab 70 at 17, 39; Tab 74 at 8, 12, 29, 33, 36; Tab 75
at 152, 154, 171, 192, 194, 199, 205, 206, 244, 360-63, 449, 493, 496).
Elsewhere in the petition, the appellant characterized his disclosures as ones
about perjury, obstruction, and abuses of authority, id. at 6, while also referring
to a Board decision which recognized that disclosure of an individual’s
intentionally false statement to the Government Accountability Office or in an
EEO investigation could be protected, id. at 22 (referencing Bravo v. Department
of Veterans Affairs , 83 M.S.P.R. 653, ¶ 10 (1999)). The appellant has not
otherwise presented any substantive argument pertaining to his burden of proof.
¶36Although we will recognize and analyze more alleged disclosures than
discussed in the initial decision, we agree with the administrative judge’s
conclusion that the appellant failed to meet his burden. For several of the alleged
disclosures the appellant cited, even if we were to assume that they were
protected, they fall outside the time frame from which the knowledge/timing test
could be satisfied.5 Compare IAF, Tab 74 at 8, 12, 29, 33 -36 (evidence of alleged
5 At least some of what the appellant has directed us to was activity protected under
5 U.S.C. § 2302(b)(9)(C), rather than disclosures covered by 5 U.S.C. § 2302(b)(8),
because they were complaints to the agency’s Office of Inspector General. IAF, Tab 74
at 8-12, Tab 75 at 152; see Pridgen, 2022 MSPB 31, ¶ 62 (recognizing that any16
disclosures between July 2010 and February 2014), Tab 75 at 152, 154, 171
(same), with IAF, Tab 4 at 95-98 (the appellant’s proposed removal, dated
December 2016); see Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 21
(2015) (recognizing that a personnel action taken within approximately 1 to
2 years of an employee’s disclosures satisfies the knowledge/timing test for
purposes of establishing the contributing factor element). Plus, the appellant has
failed to articulate any other basis for us to find that these disclosures were a
contributing factor in his removal, and we are aware of none. See Dorney,
117 M.S.P.R. 480, ¶¶ 14-15. As detailed throughout this decision, the agency’s
reasons for taking the personnel action were strong. We find that to be so, even
with the outstanding questions of the appellant’s credibility and whether he
intended the fear and intimidation he most certainly caused. Moreover, it does
not appear as if any of these older disclosures implicated the officials taking the
removal action or that they would have motivated the pertinent officials to
retaliate. IAF, Tab 74 at 8, 12, 29, 33-36, Tab 75 at 152, 154, 171.
¶37For several other alleged disclosures that are more recent in time, the
appellant has not proven that they are protected. The majority of the evidence the
appellant has cited consists of the appellant making vague or conclusory
allegations of wrongdoing, without any evidentiary support of either the alleged
wrongdoing or the appellant’s reasonable belief about the same. Gabel v.
Department of Veterans Affairs , 2023 MSPB 4, ¶ 6; see Rzucidlo v. Department
of the Army, 101 M.S.P.R. 616, ¶ 13 (2006) (recognizing that disclosures must be
specific and detailed, not vague allegations of wrongdoing regarding broad or
imprecise matters). To illustrate, the appellant cited September 2015 emails to
several managers in which he vaguely recounts how he once confronted managers
for harassment and lying in sworn statements, then later received unsatisfactory
performance appraisals and a reprimand. IAF, Tab 35 at 4, Tab 36 at 4, Tab 37
disclosure of information to OIG, regardless of the content, is activity protected under
5 U.S.C. § 2302(b)(9)(C)).17
at 4, Tab 38 at 4, Tab 75 at 192, 194, 360-63. He also cited October 2015 notes
and emails in which the appellant generally alleged that several officials made
false reports about him being a potential security threat. IAF, Tab 75 at 199, 205,
493, 496-97. Next, the appellant cited a June 2016 email in which he alleged that
the agency representative in his EEO case withheld material information from his
discovery response in violation of perjury and obstructions statutes. IAF, Tab 70
at 39. Lastly, the appellant cited an unsigned and undated document in which he
once again appears to allege false statements and obstruction of justice on the part
of agency managers. IAF, Tab 75 at 206. Without more, the appellant has not
proven, by preponderant evidence, that any of these rise to the level of a
protected disclosure. E.g., Rzucidlo, 101 M.S.P.R. 616, ¶¶ 17-18 (finding that
alleged disclosures were not protected when they consisted of general complaints
about how he was treated by the agency and an unsupported allegation that
someone lied by complaining of unwelcomed attention).
¶38In another series of emails the appellant cited, from December 2015, the
appellant presented a more specific allegation. These emails assert that the
agency violated a particular collective bargaining agreement provision by failing
to remove his reprimand 2 years after its issuance. IAF, Tab 75 at 244-46.
However, the appellant has not identified anything more than the assertion of
both the collective bargaining provision and the associated violation. He has not,
for example, directed us to the actual collective bargaining agreement or his basis
for asserting that the agency had violated the same. See Tines v. Department of
the Air Force, 56 M.S.P.R. 90, 92 (1992) (explaining that a petition for review
must contain sufficient specificity to enable the Board to ascertain whether there
is a serious evidentiary challenge justifying a complete review of the record);
Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133 (1980) (finding that,
before the Board will undertake a complete review of the record, the petitioning
party must explain why the challenged factual determination is incorrect and18
identify the specific evidence in the record which demonstrates the error), review
denied per curiam , 669 F.2d 613 (9th Cir. 1982).
¶39A final email the appellant cited, which he sent in February 2016, contains
yet another allegation that an official made knowingly false statements and
obstructed justice. IAF, Tab 75 at 449-50. With this allegation, the appellant
added some detail by attaching his own sworn statement and statements made by
the official at issue in concert with one of the appellant’s EEO complaints. Id.
at 451-69. These documents establish that the official initially stated that he sent
a particular email to the appellant, and then later corrected himself to indicate
that he sent the email to someone in the appellant’s chain of command. Id.
at 449, 457, 461, 468. While the appellant has characterized this and numerous
other statements as perjury and obstruction of justice, he has not shown that he
had a reasonable belief of the same. Instead, the appellant has merely speculated
that the agency official’s misstatement was more than a simple mistake and rose
to the level of a criminal violation.
¶40In conclusion, the appellant failed to meet his burden of proving that he
made protected disclosures or engaged in protected activity that were a
contributing factor in his removal, so his whistleblower reprisal claim is
unavailing.
Harmful error or due process violation
¶41The administrative judge considered but found no merit to the appellant’s
harmful procedural error claim—that the agency erroneously considered his 2011
reprimand in the removal action. ID at 16. He also considered but found no
merit to the appellant’s due process claim—that the deciding official was biased
against the appellant. ID at 16-17.
¶42Although the appellant alludes to harmful error and due process on review,
PFR File, Tab 1 at 24, he does not include substantive arguments about either
claim. Instead, the appellant refers to those claims in the context of an argument
that appears to relate to his whistleblower reprisal claim. Id. at 24-25. Without19
any persuasive support of these accusations, the appellant has failed to establish
any basis for reaching a conclusion contrary to the administrative judge regarding
harmful error or due process. See, e.g., Martinez v. Department of Veterans
Affairs, 119 M.S.P.R. 37, ¶¶ 10-11 (2012) (finding that the appellant has the
burden of establishing a decision maker’s actual bias or an intolerable risk of
unfairness to prove a violation of due process and that a deciding official’s
familiarity with the facts of the case and expressed predisposition contrary to the
appellant’s interests does not constitute a due process violation or harmful error).
ORDER
¶43For the reasons discussed above, we remand this case to the administrative
judge for further adjudication in accordance with this Remand Order. The
administrative judge may reopen the record and hold a supplemental hearing
concerning the appellant’s credibility and the agency’s charge if the
administrative judge deems it necessary to do so.
¶44The administrative judge must issue a remand initial decision with complete
credibility findings and must make a new determination about whether the agency
proved its charge. If necessary, the administrative judge must also analyze
whether the agency proved the requisite nexus and the reasonableness of its
penalty.
¶45To the extent that it is appropriate, the remand initial decision may
incorporate the administrative judge’s prior findings, as supplemented by our
findings in this decision, regarding the appellant’s affirmative defenses. But if
argument or evidence presented on remand affects the analysis of any affirmative
defense, the administrative judge should address such argument or evidence in the
remand initial decision. See Spithaler v. Office of Personnel Management ,
1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must identify all
material issues of fact and law, summarize the evidence, resolve issues of20
credibility, and include the administrative judge’s conclusions of law and his
legal reasoning, as well as the authorities on which that reasoning rests).
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.21 | Morris_Carl_C_DC-0752-17-0441-I-1_Remand_Order.pdf | 2024-01-19 | CARL C. MORRIS v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. DC-0752-17-0441-I-1, January 19, 2024 | DC-0752-17-0441-I-1 | NP |
2,515 | https://www.mspb.gov/decisions/nonprecedential/Morris_Carl_C_DC-1221-17-0355-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARL C. MORRIS,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
DC-1221-17-0355-W-1
DATE: January 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carl C. Morris , Prince Frederick, Maryland, pro se.
Paul Sanchez , 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 individual right of action appeal for lack of jurisdiction. On
petition for review, the appellant argues that the administrative judge erred in
finding that he failed to show that he exhausted his administrative remedy with
the Office of Special Counsel. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain3
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 4
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Morris_Carl_C_DC-1221-17-0355-W-1_Final_Order.pdf | 2024-01-19 | CARL C. MORRIS v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. DC-1221-17-0355-W-1, January 19, 2024 | DC-1221-17-0355-W-1 | NP |
2,516 | https://www.mspb.gov/decisions/nonprecedential/Daniels_Janice_L_CH-0353-22-0125-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JANICE L. DANIELS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0353-22-0125-I-1
DATE: January 19, 2024
THIS ORDER IS NONPRECEDENTIAL1
Janice L. Daniels , Chicago, Illinois, pro se.
Maryl R. Rosen , Esquire, St. Louis, Missouri, 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 as withdrawn. For the reasons discussed below, we GRANT
the petition for review, VACATE the initial decision, and REMAND the case to
the Central Regional Office for further adjudication in accordance with this
Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 record in this appeal is difficult to decipher. It appears that the
appellant was employed with the U.S. Postal Service in various positions starting
in 1977. Initial Appeal File (IAF), Tab 1 at 2, 9. According to the appellant, she
suffered an on-the-job injury in 1978, and, at some point in 1981, she was deemed
partially recovered and put back to work in a different position due to her medical
limitations. Id. at 4, 19. At some point the appellant apparently retired and
thereafter, she has asserted that she filed a claim for compensation with the
Department of Labor’s Office of Workers’ Compensation Programs (OWCP),
arguing that she suffered a loss of wage -earning capacity because of her on-the-
job injury and subsequent assignment to a different position. Id. at 4. The
appellant asserted that, on December 9, 2021, OWCP verbally informed her that it
would not hold a hearing on her claims. Id.
On January 5, 2022, the appellant filed the instant appeal with the Board.
IAF, Tab 1. Although in her initial appeal, she checked the boxes corresponding
with the following claims, asserting they were the basis for her appeal:
(1) reduction in grade, pay or ban; (2) failure to restore/reemployee/reinstate or
improper restoration/reemployment/reinstatement; (3) involuntary retirement;
(4) denial of within-grade increase; and (5) other, wherein she handwrote in
“[r]eorganization of 1994-[f]ailure to [r]estore [l]evels,” she stated that the
decision she was appealing was OWCP’s December 9, 2021 statement that it
would not hold her requested hearing on her loss of wage-earning capacity claim.
Id. at 2-4.
Recognizing that the Board may not have jurisdiction over the appeal, the
administrative judge informed the appellant of what she must nonfrivolously
allege to establish the Board’s jurisdiction over an involuntary retirement,
reduction in pay, and denial of restoration.2 IAF, Tab 3. The administrative
2 The administrative judge later explained that the appellant had made clear during a
status conference that she was not alleging an involuntary resignation or involuntary
retirement, nor was she asserting that she was a preference eligible, a supervisor, or a2
judge also informed the appellant that the Board does not have jurisdiction over
disputes with OWCP, nor does it have independent authority to consider claims of
reasonable accommodation denials where it otherwise lacks jurisdiction over the
appeal. IAF, Tab 10 at 1-2. The appellant responded to the administrative
judge’s orders on jurisdiction, alleging that the agency subjected her to difficult
conditions of employment following her restoration, and she appears to argue that
it did so because she is a whistleblower. IAF, Tab 14.
Before the record closed on the question of jurisdiction, the appellant filed
a motion to withdraw “all [her] legal matters with the MSPB . . . due to medical
reasons at this time.” IAF, Tab 20 at 4. The administrative judge informed the
appellant that a voluntary withdrawal of an appeal would result in its dismissal
with prejudice. IAF, Tab 21 at 1. She explained that, absent unusual
circumstances, the Board would not reinstate the appeal once it has been
withdrawn, and that a withdrawal must be clear, unequivocal, and decisive. Id.
She informed the appellant that she would dismiss the appeal as withdrawn on a
certain date unless the appellant filed a pleading indicating that she wished to
proceed with her appeal. Id. The appellant responded, explaining that she was
suffering from mental and physical health issues and that she was struggling to
secure legal representation to pursue her claims. IAF, Tab 22 at 4. After
explaining the impediments presented by her physical health and the Board’s
deadlines, she stated that “[i]t is of great sorrow that I must withdraw, but please
don’t prejudice me because of my . . . disabilities.” Id. at 5.
After the close of the jurisdictional record and without holding the
appellant’s requested hearing, IAF, Tab 1 at 2, the administrative judge issued an
initial decision dismissing the appeal as withdrawn, IAF, Tab 24, Initial Decision
(ID). The administrative judge found that the appellant “clearly and
unequivocally expressed her intent to withdraw her appeal.” ID at 2-3.
management employee or employee in personnel work in other than a purely
nonconfidential clerical capacity at the agency. IAF, Tab 10 at 1.3
Accordingly, the administrative judge found that the appellant’s withdrawal
“divests the Board of jurisdiction,” and she dismissed the appeal. ID at 3.
The appellant has filed a timely petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. Among her claims therein is her assertion
that the administrative judge should not have dismissed her appeal with prejudice
and that the administrative judge made no findings on jurisdiction. Id. at 7, 11,
17-18, 21-22. She also appears to continue to assert that she is a whistleblower.
Id. at 5-6. The agency has responded to the appellant’s petition for review, to
which the appellant has replied. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
An appellant’s withdrawal of her appeal is an act of finality, and, absent
unusual circumstances such as misinformation or new and material evidence, the
Board will not disturb an initial decision dismissing an appeal as withdrawn. See
Rosso v. Department of Homeland Security , 113 M.S.P.R. 271, ¶ 9 (2010).
However, an appellant’s relinquishment of her right to appeal to the Board must
be by clear, unequivocal, and decisive action. Id. When an appellant raises a
genuine question of fact as to whether she made a clear, unequivocal, and
decisive act to relinquish her right to appeal to the Board, the Board may, in the
interest of justice, vacate the decision dismissing the appeal as withdrawn and
remand the case. Id. The Board’s decision to do so involves balancing the
desirability of finality and the public interest in reaching what ultimately appears
to be the right decision. See generally Shannon v. Department of Homeland
Security, 100 M.S.P.R. 629, ¶ 18 (2005).
As an initial matter, we observe that the appellant exercised due diligence
in seeking review of the initial decision, as she timely filed her petition for
review within 35 days of the issuance of the initial decision. Further, although
finality of a decision is generally desired, and the appellant filed two pleadings
expressing her intent to withdraw her appeal—one of which was filed after the4
administrative judge informed her of the consequences of a withdrawal—the tenor
of the appellant’s second request to withdraw her appeal and her petition for
review raises the question of whether these requests to withdraw were clear,
decisive, and unequivocal. See Rosso, 113 M.S.P.R. 271, ¶ 9.
As noted above, in the appellant’s second request to withdraw, she
expressly asked that the administrative judge not prejudice her in dismissing the
appeal. IAF, Tab 22 at 5. This request is reiterated in her petition for review,
wherein she states several times that she was seeking a dismissal without
prejudice. PFR File, Tab 1 at 7, 11, 20-21. Further, the appellant asserted below
that her request to withdraw was due to health issues and her inability to proceed
without representation. IAF, Tab 22 at 4-5. The Board has found that such
circumstances would justify withdrawal of an appeal without prejudice to refiling.
See Soto v. Department of Justice , 95 M.S.P.R. 552, ¶ 7 (2004). It is within the
administrative judge’s discretion to advise an appellant that she may seek to
dismiss an appeal without prejudice on the bases explained above. Id. We find
that, under the circumstances present here, the administrative judge should have
exercised her discretion to advise the appellant that she could seek to have her
appeal dismissed without prejudice, and that it was error not to do so. See id.
Because of the administrative judge’s failure to exercise her discretion and advise
the appellant of such, we vacate the initial decision dismissing the appeal as
withdrawn and remand the appeal.3 See id., ¶ 8.
On remand, the administrative judge should resolve the question of whether
the Board has jurisdiction over the appellant’s claims presented in this appeal.
3 Although the record on jurisdiction closed before the administrative judge issued the
initial decision, making the question of jurisdiction ripe for decision, the appellant’s
requests to withdraw her appeal were made before the record on jurisdiction closed.
IAF, Tabs 19-20, 22. Because it is possible that the appellant’s reasons for withdrawing
her appeal, namely, her health and inability to obtain counsel, also prohibited her from
fully responding to the administrative judge’s orders on jurisdiction, we find that
remand is appropriate. 5
See Soto, 95 M.S.P.R. 552, ¶ 9 (remanding an appeal for a jurisdictional
determination after vacating an administrative judge’s finding that the appellant
withdrew her appeal); Etheridge v. Department of Veterans Affairs , 67 M.S.P.R.
53, 58 (1995) (same). Additionally, the administrative judge should provide the
appellant with information on what is required to establish the Board’s
jurisdiction over an individual right of action appeal alleging whistleblower
reprisal.
ORDER
For the reasons discussed above, we remand this case to the Central
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Daniels_Janice_L_CH-0353-22-0125-I-1__Remand_Order.pdf | 2024-01-19 | JANICE L. DANIELS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0353-22-0125-I-1, January 19, 2024 | CH-0353-22-0125-I-1 | NP |
2,517 | https://www.mspb.gov/decisions/nonprecedential/Dokes_Eugene_SF-0752-17-0085-I-3__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EUGENE DOKES, JR.,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
SF-0752-17-0085-I-3
DATE: January 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eugene Dokes, Jr. , Murrieta, California, pro se.
John W. Montgomery , Alexandria, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal for conduct unbecoming a Federal employee. On petition
for review, the appellant argues that the administrative judge abused her
discretion in accepting the agency’s late-filed evidence without providing him
with sufficient time to review it or submit evidence in opposition. He also argues
that the agency and the administrative judge failed to consider all of the relevant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Douglas factors, ignoring his disability as a mitigating factor and the
improvements in his mental health as evidence supporting his prospects for
rehabilitation. He further argues that the administrative judge failed to accept
exhibits he submitted below, and he resubmits those exhibits on 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
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that 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 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).
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Dokes_Eugene_SF-0752-17-0085-I-3__Final_Order.pdf | 2024-01-19 | null | SF-0752-17-0085-I-3 | NP |
2,518 | https://www.mspb.gov/decisions/nonprecedential/Buckley_Alice_CH-1221-18-0096-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALICE BUCKLEY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-18-0096-W-1
DATE: January 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David A. Karman , Esquire, and Kevin L. Owen , Esquire, Silver Spring,
Maryland, for the appellant.
Danielle Kalivoda , Esquire, Indianapolis, Indiana, for the agency.
Nicholas E. Kennedy , Esquire, Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in connection with her individual right of
action appeal. On petition for review, the appellant challenges the findings of the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative judge that the agency proved by clear and convincing evidence that
it would have taken certain personnel actions against the appellant even absent
her protected disclosures. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings 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 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:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Buckley_Alice_CH-1221-18-0096-W-1_Final_Order.pdf | 2024-01-19 | ALICE BUCKLEY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-18-0096-W-1, January 19, 2024 | CH-1221-18-0096-W-1 | NP |
2,519 | https://www.mspb.gov/decisions/nonprecedential/Adams_Pamela_N_DC-0752-23-0426-I-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAMELA N. ADAMS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-0752-23-0426-I-1
DATE: January 19, 2024
THIS ORDER IS NONPRECEDENTIAL1
Amanda Stevens , Richmond, Virginia, for the appellant.
Michael J.A. Klein , Esquire, Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her alleged involuntary resignation appeal for lack of Board
jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition
for review, VACATE the initial decision, and REMAND the case to 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).
Washington Regional Office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶2On April 20, 2023, the appellant, a former GS-11 Respiratory Therapist,
filed an initial appeal with the Board, indicating that she was appealing her
involuntary resignation and demotion from Lead Respiratory Therapist. Initial
Appeal File (IAF), Tab 1 at 4. She filed her appeal via facsimile and, at that
time, her designated representative did not register to be an e-filer. Id. at 7.
¶3The administrative judge issued an order to show cause, notifying the
appellant of her burden of proof to establish jurisdiction over her constructive
resignation claim; however, the order did not notify her of her burden to establish
a constructive demotion. IAF, Tab 3 at 1-3. According to the certificate of
service, the appellant was served a copy of the order via U.S. Mail and her
representative was served via electronic mail. Id. at 5. Neither party responded
to the order to show cause. Without holding the appellant’s requested hearing,
the administrative judge issued an initial decision dismissing the appeal for lack
of jurisdiction. IAF, Tab 1 at 2, Tab 5, Initial Decision (ID) at 1, 7.
¶4The appellant has filed a petition for review of the initial decision.2 Petition
for Review (PFR) File, Tab 1. On review, the appellant’s representative alleges
that neither she nor the appellant received the administrative judge’s order to
show cause because they were not registered as e-filers. Id. at 6; PFR File, Tab 4
at 5. She also submits information and documentation regarding the merits of the
appellant’s involuntary resignation and constructive demotion claims. PFR File,
Tab 4 at 6-7. The agency has responded to the petition for review and the
appellant has replied. PFR File, Tabs 3-4.
2 On review, the appellant filed a new appeal via e-Appeal Online and registered as an
e-filer. PFR File, Tab 1 at 2. 2
DISCUSSION OF ARGUMENTS ON REVIEW
¶5On review, the appellant alleges that neither she nor her representative
received the administrative judge’s order to show cause because her
representative was improperly served via e-Appeal, despite not being registered
as an e-filer. PFR File, Tab 1 at 6, Tab 4 at 5. Electronic service of the Board’s
issuances is only appropriate for properly registered e-filers who affirmatively
consent to electronic service. See 5 C.F.R. § 1201.14(e)(1)-(2) (noting that
registration as an e-filer constitutes consent to accept electronic service and that
the exclusive means for registering as an e-filer is to do so through e-Appeal
Online), (j)(1) (identifying that paper copies of Board issuances are not ordinarily
served on registered e-filers), (j)(3) (noting that registered e -filers are responsible
for monitoring case activity in the e-Appeal Online Repository to ensure that they
have received all case-related documents). The record below does not contain the
representative’s affirmative consent to accept electronic service; therefore, the
administrative judge’s order to show cause was improperly served on the
appellant’s representative electronically. IAF, Tab 1 at 7, Tab 3 at 5.
Accordingly, because the issue of jurisdiction is always before the Board and may
be raised at any time during a Board proceeding, we will consider the appellant’s
newly raised evidence and arguments on review. Poole v. Department of the
Army, 117 M.S.P.R. 516, ¶ 9 (2012) (finding that the issue of jurisdiction is
always before the Board and may be raised at any time during a Board
proceeding).
The appellant has alleged facts that, if true, could establish that she was subjected
to a constructive demotion.
¶6The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant is entitled to a
jurisdictional hearing only if she makes a nonfrivolous allegation of Board
jurisdiction. Francis v. Department of the Air Force , 120 M.S.P.R. 138, ¶ 143
(2013). 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. Id.; 5 C.F.R. § 1201.4(s).
¶7On review, the appellant alleges for the first time that she was subjected to a
constructive demotion because the agency reassigned her to a “lesser position,”
and then the agency converted her former position to a higher grade. PFR File,
Tab 4 at 6-7. As mentioned above, although the appellant generally alleged
below that she was demoted and required to work in a higher-graded position
without compensation, the administrative judge did not give the appellant notice
of the standard for establishing jurisdiction over a constructive demotion claim,
nor did he address a constructive demotion claim in his initial decision. IAF,
Tab 1 at 4; ID at 5. Therefore, we consider the appellant’s evidence and
arguments and find that the appellant has nonfrivolously alleged facts that, if
proven, could establish that the Board has jurisdiction over her constructive
demotion claim.
¶8In support of her involuntary resignation and constructive demotion claim,
the appellant, through her representative, certifies the following on review. In
March 2021, her agency underwent a reorganization. PFR File, Tab 4 at 6. Prior
to the reorganization, she was a GS-9 Lead Respiratory Therapist and alleges that
“typically non-lead Respiratory Therapists [were] at the GS-8 level.” Id. On
March 14, 2021, the agency “initiated a national promotion event that was
supposed to convert all the Respiratory Therapists to the GS[-]11 level, and all
Lead Respiratory Therapists to the GS-12 level.” PFR File, Tab 4 at 6. From
March 14, 2021, through February 8, 2023, she claims she was “reassigned” to a
GS-11 Respiratory Therapist position because she was “coded” as a GS-11
Respiratory Therapist, instead of a GS-12, even though she continued to perform
the duties of a Lead Respiratory Therapist. Id. at 6-7. On May 31, 2022, the
Chief of Service told the appellant that “the Leads . . . positions have to be
re-announced” and “those who are already in these positions will have to4
re-apply.” Id. at 7, 9. The appellant further alleges that on unspecified dates she
reapplied for the Lead Respiratory Therapist position, was not selected, suffered a
loss in pay and a hostile work environment, and eventually resigned. Id. at 7;
IAF, Tab 1 at 4, 6.
¶9A reassignment without loss of grade or pay is not appealable to the Board.
Marcheggiani v. Department of Defense , 90 M.S.P.R. 212, ¶ 7 (2001). A narrow
exception exists when an employee is deemed to have suffered a constructive
demotion and she is assigned from a position which, due to issuance of a new
classification standard or correction of a classification error, was worth a higher
grade, the employee met the legal and qualification requirements for promotion to
the higher grade, and she was permanently reassigned to a position classified at a
grade level lower than the grade level to which she would otherwise have been
promoted. Russell v. Department of the Navy , 6 M.S.P.R. 698, 711 (1981). In
Russell, the appellant was reassigned from the position of GS-11, Supervisory
Employee Development Specialist to a GS-11, Employee Development Specialist.
Russell, 6 M.S.P.R. 698, 700. Five months later, the agency established a GS-12
Supervisor Employee Development Specialist position, for which the appellant
was not selected. Id. at 701. The appellant alleged that the GS-11, Supervisory
Employee Development Specialist he held prior to his reassignment and the
GS-12 position were identical and that he was constructively reduced in grade
because the original GS-11 position he held should have been classified at GS-12.
Id. Similarly, here the appellant has nonfrivolously alleged that her Lead position
was reclassified upward to a GS-12, she is entitled to a noncompetitive promotion
to the higher-graded GS-12 Lead position because she successfully performed
Lead duties and allegedly continued to perform Lead duties even after the
reorganization, and she was reassigned to the GS-11 position at a grade level
lower than the GS -12 grade level to which she would otherwise have been
promoted. Thus, we find that the Board may exercise jurisdiction over her
constructive demotion claim. See Marcheggiani , 90 M.S.P.R. 212, ¶¶ 8-9 (stating5
that the Board may exercise its jurisdiction in a constructive demotion appeal
only when a position actually has been reclassified upward and the employee
claims entitlement to a noncompetitive promotion to the higher-graded position);
Burrell v. Environmental Protection Agency , 81 M.S.P.R. 427, ¶ 17 (1999)
(finding that an employee raised a nonfrivolous allegation of constructive
demotion when he asserted that his GM-13 position was upgraded to GS-14,
without a significant change in duties or responsibilities, at the time he was
reassigned to another position).
We decline to disturb the administrative judge’s finding that the appellant failed
to nonfrivolously allege jurisdiction over her involuntary resignation claim.
¶10On review, the appellant generally challenges the administrative judge’s
finding that the appellant failed to establish jurisdiction over her involuntary
resignation claim. PFR File, Tab 1 at 5; ID at 5-7. As mentioned above, she
claims that she did not receive the administrative judge’s order to show cause,
which gave her notice of her jurisdictional burden with respect to her involuntary
resignation claim. PFR File, Tab 1 at 6. However, the appellant received the
administrative judge’s initial decision, which also contained this notice. ID
at 3-5; see Parker v. Department of Housing and Urban Development ,
106 M.S.P.R. 329, ¶¶ 7-8 (2007) (stating that an administrative judge’s failure to
provide an appellant with specific notice of his jurisdictional burden can be cured
if the agency’s pleadings or the initial decision contain the required notice). Even
after considering the appellant’s submissions on review, we discern no basis to
disturb the administrative judge’s finding that the appellant failed to establish
jurisdiction over her involuntary resignation claim.
¶11A resignation is presumed to be voluntary, and thus outside the Board’s
jurisdiction, unless the employee presents sufficient evidence to establish that the
action was obtained through duress or coercion or shows that a reasonable person
would have been misled by the agency. Searcy v. Department of Commerce ,
114 M.S.P.R. 281, ¶ 12 (2010). An appellant claiming that her resignation is6
involuntary is entitled to a hearing on jurisdiction only if she makes nonfrivolous
allegations casting doubt on the presumption of voluntariness. Id., ¶ 10. The
touchstone of the voluntariness analysis is whether, considering the totality of the
circumstances, factors operated on the employee’s decision-making process that
deprived her of freedom of choice. Id. Intolerable working conditions may
render an action involuntary if the employee demonstrates that the employer or
agency engaged in a course of action that made working conditions so difficult or
unpleasant that a reasonable person in the employee’s position would have felt
compelled to resign. Searcy, 114 M.S.P.R. 281, ¶ 12; see Middleton v.
Department of Defense , 185 F.3d 1374, 1379 (Fed. Cir. 1999) (explaining that a
determination as to whether an employee’s resignation was coerced is based on an
objective test). The Board will consider claims of discrimination and harassment
only insofar as those allegations relate to the issue of voluntariness. Brown v.
U.S. Postal Service , 115 M.S.P.R. 609, ¶ 10, aff’d per curiam , 469 F. App’x 852
(Fed. Cir. 2011).
¶12Other than alleging that the agency constructively demoted her and
subjected her to a “hostile” environment, the appellant does not allege facts that
would show that her work conditions were so intolerable that she had no choice
but to resign. PFR File, Tab 1 at 17. Even if we accept as true the appellant’s
allegations that she was improperly reassigned to a GS-11 position and that the
agency continued to “have [her] working at a higher graded duty without
compensation,” such an allegation is insufficient to establish that her resignation
was involuntary. 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. Miller v. Department of
Defense, 85 M.S.P.R. 310, 322 (2000). Moreover, though the appellant alleges
that she served in her reassignment for almost 2 years, she did not allege that she
attempted to exhaust any remedial avenues prior to resigning. Because she could
have remained in her position and contested the validity of the agency’s actions7
but chose not to, we agree with the administrative judge that she has failed to
nonfrivolously allege that her resignation was involuntary. See Brown, 115
M.S.P.R. 609, ¶ 15; cf. Heining v. General Services Administration , 68 M.S.P.R.
513, 523 (1995) (finding an involuntary resignation after the appellant offered
overwhelming evidence supporting an intolerable working environment and did
not resign until she pursued many grievances and two complaints, receiving an
adverse decision on her grievances just prior to her resignation). Thus, we
decline to disturb the administrative judge’s finding that the appellant failed to
establish jurisdiction over her involuntary resignation claim.
ORDER
¶13For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
On remand, the administrative judge shall permit the parties to conduct discovery
and submit additional evidence and argument and shall afford the appellant a
jurisdictional hearing on the appellant’s claim of a constructive demotion. If the
administrative judge finds that the Board has jurisdiction over that claim, he shall
adjudicate the merits of that claim. In his remand initial decision, the
administrative judge may adopt his prior finding that the appellant failed to
establish jurisdiction over her involuntary resignation claim.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.8 | Adams_Pamela_N_DC-0752-23-0426-I-1 Remand Order.pdf | 2024-01-19 | PAMELA N. ADAMS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-0752-23-0426-I-1, January 19, 2024 | DC-0752-23-0426-I-1 | NP |
2,520 | https://www.mspb.gov/decisions/nonprecedential/Braggs_Annmarie_E_DC-3443-22-0567-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANNMARIE ERICA BRAGGS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-3443-22-0567-I-1
DATE: January 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Annmarie Erica Braggs , Lansdowne, Virginia, pro se.
Christian K. Piatt , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of a nonselection 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 initial decision, which is now the Board’s final decision. 5 C.F.R. §
1201.113(b).
On review, the appellant cites 5 C.F.R. § 301.103(a) and (c) as a basis for
Board jurisdiction. While the Board generally lacks jurisdiction to review an
agency’s decision not to select a particular applicant for a position, see Brown v.
Office of Personnel Management , 91 M.S.P.R. 314, ¶ 7 (2002), an applicant for
employment or competitive promotion in the competitive service who believes
that an employment practice applied to her by the Office of Personnel
Management (OPM) violates a basic requirement in 5 C.F.R. § 300.103 is entitled
to appeal to the Board under 5 C.F.R. § 300.104(a). The Board has jurisdiction in
such a case when two conditions are met: First, the appeal must concern an
employment practice that OPM is involved in administering; and second, the
appellant must make a nonfrivolous allegation that the employment practice
violated one of the “basic requirements” for employment practices set forth in
5 C.F.R. § 300.103. Mapstone v. Department of the Interior , 110 M.S.P.R. 122,
¶ 7 (2008). The term “employment practices” includes the development and use
of examinations, qualification standards, tests, and other measurement
instruments. 5 C.F.R. § 300.101. Although an individual agency action or
decision that is not a rule or practice of some kind does not qualify as an2
employment practice, an agency’s misapplication of a valid OPM requirement
may constitute an employment practice. Mapstone, 110 M.S.P.R. 122, ¶ 7.
Here, the appellant has not identified an employment practice administered
by OPM or explained how the agency misapplied a valid OPM requirement.
Rather, she appears to be alleging that an interviewer for the position to which
she applied discriminated against her on the basis of sex and race. Accordingly,
we find that the appellant has not established Board jurisdiction under 5 C.F.R.
§ 300.104(a). See Richardson v. Department of Defense , 78 M.S.P.R. 58, 61
(1998) (finding that the appellant did not establish jurisdiction under 5 C.F.R.
§ 300.104(a) when she failed to identify a basic requirement that was missing
from the instrument the agency used to evaluate her application and was simply
contesting the agency’s rating and handling of her individual application).
Furthermore, absent an otherwise appealable action, the Board lacks jurisdiction
over the appellant’s claims of discrimination and prohibited personnel practices
under 5 U.S.C. § 2302(b)(2), (4), and (10). See Penna v. U.S. Postal Service ,
118 M.S.P.R. 355, ¶ 13 (2012). We therefore affirm the dismissal of the appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Braggs_Annmarie_E_DC-3443-22-0567-I-1__Final_Order.pdf | 2024-01-19 | ANNMARIE ERICA BRAGGS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-3443-22-0567-I-1, January 19, 2024 | DC-3443-22-0567-I-1 | NP |
2,521 | https://www.mspb.gov/decisions/nonprecedential/Boaz_Vincent_E_SF-752S-21-0349-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VINCENT E. BOAZ,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-752S-21-0349-I-1
DATE: January 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vincent E. Boaz , Victorville, California, pro se.
Emelia M. Sanchez , Robert Aghassi , and Veronica Hale , Barstow,
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 of his two nonconsecutive 14-day suspensions. On petition
for review, the appellant argues that the conduct underlying his two suspensions
was the same and that the agency issued his second suspension in reprisal for
filing a formal equal employment opportunity complaint. Petition for Review
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast,
a precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
File, Tab 1 at 4. He also appears to allege that the agency committed harmful
error because “[t]he deciding official in each suspension were from different
deciding official. One from Barstow California, and one from Albany Georgia.”
Id. (grammar, spelling, and punctuation as in the original). Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings 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.3
The Board neither endorses the services provided by any attorney nor warrants
that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Boaz_Vincent_E_SF-752S-21-0349-I-1__Final_Order.pdf | 2024-01-19 | VINCENT E. BOAZ v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-752S-21-0349-I-1, January 19, 2024 | SF-752S-21-0349-I-1 | NP |
2,522 | https://www.mspb.gov/decisions/nonprecedential/Thornbury_Joshua_D_DE-0752-14-0490-X-1__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSHUA D. THORNBURY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-0752-14-0490-X-1
DATE: January 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael A. Shaw , Esquire, Cottonwood, Arizona, for the appellant.
Maxine N. Romero , Esquire, Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
On February 13, 2018, the administrative judge issued a compliance initial
decision finding the agency noncompliant with the November 17, 2016 initial
decision in the underlying matter, which reversed the appellant’s removal and
ordered the agency to restore him to duty and pay him appropriate back pay 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).
benefits. Thornbury v. Department of Veterans Affairs , MSPB Docket No. DE-
0752-14-0490-C-2, Compliance File, Tab 8, Compliance Initial Decision (CID);
Thornbury v. Department of Veterans Affairs , MSPB Docket No. DE-0752-14-
0490-I-2, Tab 18, Initial Decision (ID). The initial decision became the Board’s
final decision on December 22, 2016, after neither party filed a petition for
review. In the compliance initial decision, the administrative judge ordered the
agency to submit evidence of full compliance. CID at 5. For the reasons
discussed below, we find the agency in compliance and DISMISS the petition for
enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
In the compliance initial decision, the administrative judge informed the
agency that, if it decided to take the actions required by the decision, it must
submit to the Office of the Clerk of the Board, within the time limit for filing a
petition for review under 5 C.F.R. § 1201.114(e), a statement that it had taken the
actions identified in the compliance initial decision, along with evidence
establishing that it has taken those actions. CID at 5-6; see 5 C.F.R.
§ 1201.183(a)(6)(i). He also informed the parties of their option to request Board
review of the compliance initial decision by filing a petition for review by
March 20, 2018, the date on which the findings of noncompliance would become
final unless a petition for review was filed. CID at 6; see 5 C.F.R.
§§ 1201.114(e), 1201.183(a)(6)(ii), 1201.183(b). Neither party filed any
submission with the Clerk’s Office within the time limit set forth in 5 C.F.R.
§ 1201.114. Accordingly, pursuant to 5 C.F.R. § 1201.183(b)-(c), the
administrative judge’s findings of noncompliance became final, and the
appellant’s petition for enforcement was referred to the Board for a final decision
on issues of compliance. See Thornbury v. Department of Veterans Affairs ,
MSPB Docket No. DE-0752-14-0490-X-1, Compliance Referral File (CRF),
Tab 1.
2
When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation he would
have been in had the wrongful personnel action not occurred. House v.
Department of the Army , 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). An agency’s assertions of compliance
must include a clear explanation of its compliance actions supported by
documentary evidence. Id. The appellant may rebut the agency’s evidence of
compliance by making “specific, nonconclusory, and supported assertions of
continued noncompliance.” Brown v. Office of Personnel Management ,
113 M.S.P.R. 325, ¶ 5 (2010).
After the Board issued an Acknowledgement Order regarding the referral of
compliance issues, CRF, Tab 1, the parties submitted a series of pleadings, the
most recent of which were filed April 4, 2023, and August 18, 2023, and were
styled “joint response[s]” addressing outstanding compliance matters. CRF,
Tabs 35-36. In the April 4, 2023 submission, the parties indicated that the agency
had “fully complied with the monies owed Appellant with the exception” of
$458.19, which the parties stated was “still in a pending status with DFAS.”
CRF, Tab 35 at 4-5. In the August 18, 2023 submission, the parties “jointly
assert[ed] the [] [petition for enforcement] concerning DE-0752-14-0490-X-1 has
been fully resolved.” CRF, Tab 36 at 3.
In view of the parties’ stipulation that the case has been fully resolved, we
find the agency in compliance and dismiss the petition for enforcement. This is
the final decision of the Merit Systems Protection Board in this compliance
proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1)
(5 C.F.R. § 1201.183(c)(1)).
3
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 you
5
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
8 | Thornbury_Joshua_D_DE-0752-14-0490-X-1__Final Order.pdf | 2024-01-18 | JOSHUA D. THORNBURY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-0752-14-0490-X-1, January 18, 2024 | DE-0752-14-0490-X-1 | NP |
2,523 | https://www.mspb.gov/decisions/nonprecedential/Wible_Timothy_G_DC-1221-13-2002-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY G. WIBLE,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DC-1221-13-2002-W-1
DATE: January 18, 2024
THIS ORDER IS NONPRECEDENTIAL1
Timothy G. Wible , APO, APO/FPO Europe, pro se.
Brian R. Hurey , Esquire, Jason A. VanWagner , and Mackenzie B. Coy ,
Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in his individual right of action (IRA)
appeal. For the reasons discussed below, we GRANT the appellant’s petition for
review, AFFIRM the initial decision’s finding that, although the appellant
administratively exhausted seven personnel actions and eight protected
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
disclosures, certain other personnel actions were not exhausted, AFFIRM the
initial decision’s determination that the appellant established by preponderant
evidence that he made protected disclosures that were contributing factors in the
challenged personnel actions, REVERSE the initial decision’s finding that the
appellant did not administratively exhaust three disclosures made to the Office of
Inspector General (OIG) in May and June 2012, FIND that the appellant
nonfrivolously alleged that these three disclosures were protected and
contributing factors in at least some of the personnel actions at issue in this case,
VACATE the remainder of the initial decision, and REMAND the case to the
regional office for further adjudication in accordance with this Remand Order.
BACKGROUND
In September 2011, the appellant was assigned to the position of Deputy
Director, 48th Force Support Squadron, 48th Mission Support Group, 48th Fighter
Wing, RAF Lakenheath, United Kingdom. Initial Appeal File (IAF), Tab 113
at 4. In late 2012, the agency ended his assignment to the United Kingdom and
returned him to a position in the United States. Id. at 7.
The appellant filed a complaint with the Office of Special Counsel (OSC)
on March 21, 2013. IAF, Tab 1, Volume II. In his OSC complaint, he alleged
that, in reprisal for protected disclosures he made beginning in February 2012, the
agency (1) threatened to curtail his overseas tour, (2) denied him a performance
award, (3) placed him on administrative leave, (4) temporarily reassigned him,
(5) suspended him for 7 days, (6) threatened again to curtail his overseas tour,
(7) initiated several investigations targeting him, and (8) reassigned him from his
assignment in the United Kingdom to a position in the United States. Id. at 11.
In addition to those acts of alleged whistleblower reprisal, the appellant also
alleged in his OSC complaint that the agency had engaged in several other
prohibited personnel practices. Id. at 6.2
On June 20, 2013, OSC issued a letter closing out its investigation and
notifying the appellant of his right to file an IRA appeal. IAF, Tab 1, Volume I
at 20. He timely filed this appeal on August 16, 2013. IAF, Tab 1, Volume I. He
initially requested a hearing, id. at 3, but he later withdrew that request, IAF,
Tab 121.
In her initial decision, the administrative judge2 found that the appellant
had exhausted his administrative remedies as to the eight allegedly retaliatory
personnel actions enumerated in his OSC complaint and initial appeal. IAF,
Tab 135, Initial Decision (ID) at 9. She found, however, that the appellant had
not exhausted as to the additional alleged prohibited personnel practices he
identified in his OSC complaint because he did not specifically identify those
actions to OSC as alleged whistleblower reprisal. Id. The administrative judge
further found that the appellant had not exhausted his administrative remedies as
to any additional disclosures he made in complaints to the agency’s OIG because
he did not specifically identify those disclosures as whistleblowing disclosures
protected under 5 U.S.C. § 2302(b)(8). ID at 10-11.
After finding that the appellant had established jurisdiction over his IRA
appeal, ID at 13-15, the administrative judge found that the appellant proved by
preponderant evidence that he made protected disclosures that were a contributing
factor in the personnel actions at issue, ID at 15-18, thus establishing his prima
facie case of whistleblower reprisal. The administrative judge also found,
however, that the agency proved by clear and convincing evidence that it would
have taken each of the personnel actions in the absence of the appellant’s
disclosures. ID at 19-40. She therefore denied the appellant’s request for
corrective action. ID at 41.
The appellant has timely filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. He argues that the administrative judge
2 The appeal was reassigned to a different administrative judge in February 2016, IAF,
Tab 51, approximately 6 months before the initial decision was issued, IAF, Tab 135,
Initial Decision.3
erred in finding that he failed to exhaust his claims regarding the additional
disclosures to OIG. Id. at 6-7. He also argues that the administrative judge erred
in failing to consider either the alleged retaliatory investigations or the denial of
his grievance as separate personnel actions. Id. at 7-8. In addition, the appellant
challenges the administrative judge’s findings that the agency proved by clear and
convincing evidence that it would have taken each of the personnel actions at
issue in the absence of his protected disclosures. Id. at 9-23. The appellant also
argues that the administrative judge made errors in her procedural and
discovery-related rulings. Id. at 24-27. The agency has filed a response in
opposition to the petition for review, PFR File, Tab 3, and the appellant has filed
a reply, PFR File, Tab 4.
ANALYSIS
The appellant did not make an informed decision to withdraw his request for a
hearing.
The appellant withdrew his hearing request and requested a decision on the
written record on June 27, 2016, two days before the scheduled hearing. IAF,
Tabs 112, 121. In withdrawing his hearing request, the appellant cited a number
of factors. First, he cited the administrative judge’s failure to suspend case
processing in light of the agency’s production of documents in discovery shortly
before the scheduled hearing date.3 IAF, Tab 121 at 4. He also cited the
administrative judge’s denial of his request to conduct self-recorded oral
depositions. Id. However, he indicated that in light of the parties’ stipulations,
along with the evidence already in the record and the opportunity to submit a
sworn statement, he believed there were sufficient undisputed material facts
before the Board to make a finding of retaliation without a hearing. Id. In an
order issued the following day, the administrative judge indicated that the
3 On May 27 and June 8, 2016, the appellant requested that the administrative judge
suspend case processing in light of the difficulty he was having obtaining and reviewing
discovery documents from the agency. IAF, Tabs 93, 108. The administrative judge
denied both requests. IAF, Tabs 96, 112.4
appellant’s pleading withdrawing his hearing request had misstated the status of
the parties’ stipulations. IAF, Tab 122 at 1. She therefore gave the appellant
until later the same day to rescind his withdrawal and proceed with a hearing. Id.
The appellant filed a pleading later that day in response to the administrative
judge’s order, but he did not indicate that he wanted to go forward with the
hearing. IAF, Tab 123.
An appellant before the Board has the right to withdraw his request for a
hearing; however, there is a strong policy in favor of granting an appellant a
hearing on the merits of his case, and therefore, withdrawal of a hearing request
must come by way of clear, unequivocal, or decisive action. Pariseau v.
Department of the Air Force , 113 M.S.P.R. 370, ¶ 9 (2010); Conant v. Office of
Personnel Management , 79 M.S.P.R. 148, 150 (1998). 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. Pariseau,
113 M.S.P.R. 370, ¶ 9.
Although the appellant’s withdrawal of his hearing request was clear and
equivocal, we find that it was not informed. An appellant’s waiver of the right to
a hearing is informed when he has been fully apprised of the relevant
adjudicatory requirements and options in his case, including the right to request a
postponement or continuance of the hearing and a dismissal of the appeal without
prejudice to its timely refiling. Conant, 79 M.S.P.R. at 151. Here, the record
reflects that the appellant was aware of his right to request a suspension of case
processing. IAF, Tabs 93, 108. However, there is nothing in the record to
indicate that the administrative judge apprised the appellant that he could request
a dismissal without prejudice as an alternative to withdrawing his hearing
request.4 Therefore, given the strong policy in favor of granting an appellant a
4 The lack of such notice is particularly significant here, wherein the appellant cited the
administrative judge’s refusal to suspend case processing as a significant factor in his
decision to withdraw his hearing request. 5
hearing on the merits of his appeal, the appellant may be entitled to the hearing
he initially requested and which he evidently still desires.
The appellant established Board jurisdiction over his alleged disclosures to OIG.
Under 5 U.S.C. § 1214(a)(3), an employee is required to exhaust his
administrative remedies with OSC before seeking corrective action from the
Board in an IRA appeal. Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 8 (2011). The Board may consider only those disclosures of
information and personnel actions that the appellant raised before OSC. Id. To
satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an appellant must
have provided OSC with a sufficient basis to pursue an investigation into his
allegations of whistleblower reprisal. Skarada v. Department of Veterans Affairs ,
2022 MSPB 17, ¶ 7; Chambers v. Department of Homeland Security , 2022 MSPB
8, ¶ 10. Generally, an appellant may demonstrate exhaustion through his initial
OSC complaint, evidence that he amended the original complaint (including but
not limited to OSC’s determination letter and other letters from OSC referencing
any amended allegations), and his written responses to OSC. Skarada,
2022 MSPB 17, ¶ 7; Mason, 116 M.S.P.R. 135, ¶ 8. Alternatively, an appellant
may prove exhaustion though other sufficiently reliable evidence, such as an
affidavit or declaration attesting that he raised with OSC the substance of the
facts in his appeal. Skarada, 2022 MSPB 17, ¶ 7; Chambers, 2022 MSPB 8, ¶ 11.
Here, the administrative judge found that, although the appellant had
exhausted his administrative remedies as to eight alleged protected disclosures, he
failed to exhaust as to three additional disclosures made to OIG in May and
June 2012 because he did not specifically identify those disclosures to OSC as
whistleblowing disclosures under 5 U.S.C. § 2302(b)(8). ID at 10-11. The
administrative judge acknowledged that information regarding the three
additional disclosures were among the materials the appellant submitted to OSC,
but she found that their inclusion “among the hundreds of pages of other
documents he submitted to OSC” was insufficient to satisfy the exhaustion6
requirement. ID at 11. She noted that the appellant had not included those OIG
complaints among the list of eight protected disclosures he specifically identified
in his complaint to OSC. Id.5
Although the appellant did not specifically identify the three additional
disclosures to OIG as alleged whistleblowing disclosures under 5 U.S.C.
§ 2302(b)(8), the labels he used are not determinative. See McCarthy v. Merit
Systems Protection Board , 809 F.3d 1365, 1375 (Fed. Cir. 2016) (noting that “the
focus of the exhaustion requirement is on substance,” rather than whether the
appellant correctly affixed legal labels to the facts alleged). The appellant
provided information to OSC about the content of his complaints to OIG. IAF,
Tab 1, Volume II, OSC Tab A at 7-8; IAF, Tab 1, Volume II, OSC Tab C,
Subtabs 44, 46. He also alleged before OSC that his OIG complaints constituted
protected disclosures that were the bases for at least some allegedly retaliatory
personnel actions. IAF, Tab 1, Volume II, OSC Tab B at 6-7. This was sufficient
for OSC to pursue an investigation into whether the agency violated 5 U.S.C.
§ 2302(b)(8) or (b)(9) by retaliating against the appellant for filing his OIG
complaints.6 We therefore find that the appellant satisfied the exhaustion
requirement as to the three additional disclosures to OIG. We must therefore
determine whether the appellant nonfrivolously alleged that his disclosures to
OIG constituted protected disclosures that were a contributing factor in one or
more of the challenged personnel actions. See Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001) (the Board has jurisdiction over an
5 We agree with the administrative judge that because the events at issue in this case
took place before the effective date of the Whistleblower Protection Enhancement Act
of 2012, the Board’s jurisdiction in this IRA appeal is limited to claims of reprisal for
whistleblowing under 5 U.S.C. § 2302(b)(8). Therefore, the appellant’s claim that the
agency retaliated against him for filing OIG complaints in violation of 5 U.S.C.
§ 2302(b)(9) is not itself a basis for Board jurisdiction. Colbert v. Department of
Veterans Affairs, 121 M.S.P.R. 677, ¶ 7 (2014).
6 OSC is required to investigate all allegations of prohibited personnel practices,
regardless of whether those allegations can form the basis of an IRA appeal before the
Board. 5 U.S.C. § 1214(a)(1)(A).7
IRA appeal if the appellant has exhausted his or her administrative remedies
before OSC and makes nonfrivolous allegations that (1) he engaged in
whistleblowing activity by making a protected disclosure and (2) the disclosure
was a contributing factor in the agency’s decision to take or fail to take a
personnel action).
A nonfrivolous allegation is an assertion that, if proven, could establish the
matter at issue. Bradley v. Department of Homeland Security , 123 M.S.P.R. 547,
¶ 6 (2016); 5 C.F.R. § 1201.4(s). The U.S. Court of Appeals for the Federal
Circuit has found that, in the context of an IRA appeal, a nonfrivolous allegation
is an allegation of “sufficient factual matter, accepted as true, to state a claim that
is plausible on its face.” Hessami v. Merit Systems Protection Board , 979 F.3d
1362, 1364, 1369 (Fed. Cir. 2020). Whether allegations are nonfrivolous is
determined on the basis of the written record. Bradley, 123 M.S.P.R. 547, ¶ 6.
Any doubt or ambiguity as to whether the appellant made nonfrivolous
jurisdictional allegations should be resolved in favor of finding jurisdiction. Id.
A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of fact that, if proven, would show that the appellant disclosed a matter
that a reasonable person in his position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno v.
Department of the Interior , 123 M.S.P.R. 230, ¶ 6 (2016). The test to determine
whether a putative whistleblower has a reasonable belief in the disclosure is an
objective one: whether a disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the employee could reasonably
conclude that the actions of the agency evidenced a violation of any law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety. Id.; see 5 U.S.C.
§ 2302(b)(8). For the reasons set forth below, we find that the appellant has
nonfrivolously alleged that each of his disclosures to OIG was protected.8
On May 21, 2012, the appellant filed a complaint with OIG alleging that
the agency violated its own procedures in suspending his clearance. IAF, Tab 1,
Volume II at 616-19. On May 16, 2012, the appellant’s commander informed him
that his security clearance was being suspended temporarily and he was being
placed on administrative leave pending an investigation into alleged misconduct.
Id. at 603. In his OIG complaint, the appellant alleged that the suspension of his
clearance violated the procedures set forth in the agency’s internal rules. Id.
at 617. According to the appellant, he was later informed that despite his
commander’s notice, his security clearance was not formally suspended. Id.
at 74-76. Nevertheless, the appellant reasonably believed at the time he filed his
OIG complaint that the agency had suspended his security clearance contrary to
its own policies. We find the appellant has thus nonfrivolously alleged that he
disclosed a violation of law, rule, or regulation, and that the disclosure in his first
OIG complaint is therefore protected under 5 U.S.C. § 2302(b)(8).
The appellant filed a second OIG complaint 2 days after the first alleging
that one of his supervisors was retaliating against him for meeting with OIG
2 days earlier. IAF, Tab 1, Volume II at 621-24. Specifically, the appellant
alleged that shortly after he informed a management official that he had an
appointment with OIG on May 21, the agency started a new security investigation
into him. The appellant alleged that the facts giving rise to the investigation were
known to the agency for 2 days, but the agency only initiated the investigation
after it learned of the appellant’s contact with OIG. Id. at 622. The facts as
alleged by the appellant appear to support a reasonable belief that the agency was
retaliating against him for his meeting with OIG. Such an action would be a
violation of 5 U.S.C. § 2302(b)(9)(C), which makes it a prohibited personnel
practice to retaliate against an employee for “cooperating with or disclosing
information to the Inspector General of an agency . . . in accordance with
applicable provisions of law.” Under the law in effect at the time of the events at
issue in this case, it was a protected whistleblowing disclosure to disclose to the9
Inspector General of an agency “a violation of any law, rule, or regulation.”
5 U.S.C. § 2302(b)(8)(B)(i) (2012).7 We therefore find that the appellant has
nonfrivolously alleged that his second OIG complaint constituted a protected
disclosure.
The appellant filed a third OIG complaint in early July 2012 seeking to
compel the agency to produce documents he had requested under the Freedom of
Information Act (FOIA). IAF, Tab 1, Volume II at 24, 459. The agency
acknowledged that it received the appellant’s FOIA request on May 2, 2012, and
had not responded by May 31, 2012, as promised. IAF, Tab 113 at 8, 18. In
response to inquiries from OIG about the status of the appellant’s request, the
agency indicated on July 5, 2012, that the request was still under review. Id.
at 21. We therefore find that the appellant nonfrivolously alleged that, at the time
he filed his third OIG complaint, he reasonably believed that the agency was
violating FOIA by failing to timely respond to his request.
To satisfy the contributing factor criterion at the jurisdictional stage, an
appellant only need raise a nonfrivolous allegation that the fact of, or content of,
the protected disclosure was one factor that tended to affect the personnel action
in any way. Ontivero v. Department of Homeland Security , 117 M.S.P.R. 600,
¶ 21 (2012). 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
7 Section 101(a)(2) of the Whistleblower Protection Enhancement Act of 2012 (WPEA),
Pub. L. No. 112-199, 126 Stat. 1465, amended 5 U.S.C. § 2302(b)(8)(B)(i) to strike “a
violation” and insert “any violation (other than a violation of this section).” Thus,
although disclosing a violation of section 2302 itself would not be a protected
disclosure under the WPEA, it was a protected disclosure under the pre-WPEA law we
are applying here.10
approximately 1 to 2 years of the appellant’s disclosures satisfies the
knowledge/timing test. Id., ¶ 23. We find that the appellant nonfrivolously
alleged that his OIG disclosures were a contributing factor in at least some of the
challenged personnel actions.
In a June 12, 2012 memorandum, the appellant’s commander informed him
that he would be loaned to work in another organization pending final action on
investigations against him. IAF, Tab 1, Volume II at 633. In his memo, the
commander acknowledged “matters and complaints [the appellant] raised through
Inspector General channels at various levels of command.” Id. This evidence is
sufficient to establish that the appellant made a nonfrivolous allegation that the
commander was aware of his May 21 and 23 complaints to OIG. Accordingly, we
find that the appellant nonfrivolously alleged that his May 21 and 23 disclosures
to OIG were a contributing factor in those personnel actions taking place on or
after June 12, 2012, which include the loan itself as well as the 7-day suspension
and the curtailment of the appellant’s overseas assignment. As to the appellant’s
FOIA disclosure, the agency submitted email traffic that shows that it was aware
of the appellant’s complaint shortly after it was filed. IAF, Tab 113 at 17-25.
Thus, we find that the appellant nonfrivolously alleged that his FOIA disclosure
was a contributing factor in at least some of the challenged personnel actions,
including the 7-day suspension and the curtailment of his overseas assignment.
Accordingly, the appellant is entitled to have those claims of whistleblower
reprisal adjudicated on the merits on remand.8
8 The administrative judge found that the appellant failed to exhaust his administrative
remedies as to several additional personnel actions, which she found were presented to
OSC not as whistleblower reprisal, but as other prohibited personnel practices. ID at 9.
On review, the appellant argues that the administrative judge should not have even
included those personnel actions in her prehearing conference summary because he did
not ask for them to be adjudicated in this appeal. PFR File, Tab 1 at 24. Because the
appellant has indicated that he does not wish to pursue those additional personnel
actions in this IRA appeal, we need not review the administrative judge’s determination
that those personnel actions were not exhausted before OSC.11
The administrative judge should consider the appellant’s retaliatory investigation
claims further on remand.
The appellant argues that the administrative judge erred in failing to
consider alleged retaliatory investigations as personnel actions. PFR File, Tab 1
at 7-8. He cites the Board’s holding in Russell v. Department of Justice ,
76 M.S.P.R. 317, 323-24 (1997), in support of this argument. However, the
Board in Russell did not hold that investigations should be considered as separate
personnel actions. Rather, the Board held that it will consider evidence regarding
the conduct of an agency investigation when the investigation was so closely
related to the personnel action that it could have been a pretext for gathering
evidence to retaliate against an employee for whistleblowing activity. Id. The
administrative judge’s consideration of the agency’s investigations in this case
was consistent with that holding. ID at 13 (citing Wadhwa v. Department of
Veterans Affairs , 111 M.S.P.R. 26, ¶ 9, aff’d, 353 F. App’x 434 (Fed. Cir. 2009),
overruled on other grounds by Hau v. Department of Homeland Security ,
123 M.S.P.R. 620, ¶ 16 (2016), aff’d sub nom. Bryant v. Merit Systems Protection
Board, 878 F.3d 1320 (Fed. Cir. 2017) ).
Nevertheless, we find that the administrative judge should consider on
remand whether the appellant’s claims regarding agency investigations are
actionable in light of Board decisions issued since the initial decision in this case.
Specifically, the Board clarified that, although an investigation is not a personnel
action per se, an investigation can qualify as a personnel action in an IRA appeal
if it amounts to a significant change in job duties, responsibilities, or working
conditions under 5 U.S.C. § 2302(a)(2)(A)(xii). Spivey v. Department of Justice ,
2022 MSPB 24, ¶¶ 10-13. The Board also clarified that only agency actions that,
individually or collectively, have practical and significant effects on the overall
nature and quality of an employee’s working conditions, duties, or
responsibilities will be found to constitute a personnel action covered by
section 2302(a)(2)(A)(xii) . Skarada, 2022 MSPB 17, ¶ 16. On remand, the12
administrative judge should consider whether the appellant can establish an
additional personnel action under the standard set forth in Spivey and Skarada.
The appellant’s remaining arguments have not established adjudicatory error.
The appellant also argues that the administrative judge erred by failing to
address a grievance he filed. PFR File, Tab 1 at 8. To the extent the appellant is
arguing that the administrative judge should have adjudicated the grievance as a
separate personnel action, we find that the grievance was not among the personnel
actions identified by the appellant in his initial appeal. IAF, Tab 1, Volume I
at 5. Therefore, we find no error in the administrative judge’s failure to
adjudicate the grievance as an independent personnel action.
The appellant raises a number of arguments on petition for review relating
to discovery. PFR File, Tab 1 at 24-27. In addition to challenging several of the
administrative judges’ actions, the appellant argues more broadly that both
administrative judges assigned to the appeal demonstrated bias against him in
their procedural and discovery rulings. Id.
In making a claim of bias or prejudice against an administrative judge, a
party must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Oliver v. Department of Transportation , 1 M.S.P.R.
382, 386 (1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if her comments or actions evidence
“a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed.
Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)); Scoggins
v. Department of the Army , 123 M.S.P.R. 592, ¶ 19 (2016). None of the rulings
or actions cited by the appellant are sufficient to overcome the presumption of
honesty and integrity, nor do they evidence a deep-seated favoritism or
antagonism on the part of either administrative judge. We therefore find that the
appellant has failed to establish administrative judge bias.13
Putting aside the issue of bias, we next turn to the specific discovery
matters raised by the appellant on petition for review. An administrative judge
has broad discretion in ruling on discovery matters, and absent an abuse of
discretion, the Board will not find reversible error in such rulings. E.g., Kingsley
v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 16 (2016). For the reasons set forth
below, we find that the appellant has not shown that the administrative judge
committed any reversible error regarding discovery.
First, the appellant challenges the administrative judge’s rulings regarding
depositions he sought to take. PFR File, Tab 1 at 25. Specifically, the appellant
sought an order from the administrative judge not only requiring that depositions
take place, but also authorizing the appellant to record those depositions himself
rather than hiring a court reporter to record or transcribe them. IAF, Tab 56 at 5.
The administrative judge informed the appellant that he could conduct
depositions “either in the presence of a certified court reporter or upon written
questions.” IAF, Tab 61 at 2. The appellant moved for certification of an
interlocutory appeal regarding his request to self-record depositions, IAF, Tab 65,
but the administrative judge denied that motion, IAF, Tab 66. In denying the
appellant’s motion, the administrative judge explained that the appellant was free
to interview witnesses without a court reporter present, but that any audio
recording or “unqualified transcription” of such interviews would not be
admissible. IAF, Tab 66 at 2. The administrative judge’s rulings regarding
depositions are consistent with the Federal Rules of Civil Procedure, see Fed. R.
Civ. P. 28(a) (limiting the individuals before whom a deposition may be taken),
which may be used as a general guide for discovery practices in Board
proceedings, see Special Counsel v. Zimmerman , 36 M.S.P.R. 274, 286 (1988).
We therefore find no abuse of discretion in the administrative judge’s rulings
regarding depositions. We also agree with her determination that the criteria for
certifying an interlocutory appeal were not met. See Robinson v. Department of14
the Army, 50 M.S.P.R. 412, 418 (1991); 5 C.F.R. § 1201.92 (setting forth the
criteria for certification of an interlocutory appeal).
The appellant also argues that the administrative judge improperly delayed
her ruling on the agency’s assertion of the deliberative process privilege and that
she otherwise erred in failing to compel discovery or sanction the agency for its
inadequate discovery responses. PFR File, Tab 1 at 25-26. However, we find
that he has not shown any abuse of discretion in the administrative judge’s
handling of discovery matters. Because we are remanding this appeal for further
adjudication, we need not address the appellant’s arguments challenging the
administrative judge’s findings on the merits of his whistleblower reprisal claims.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. The
administrative judge shall afford the appellant a hearing on remand if he requests
one.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.15 | Wible_Timothy_G_DC-1221-13-2002-W-1__Remand_Order.pdf | 2024-01-18 | TIMOTHY G. WIBLE v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DC-1221-13-2002-W-1, January 18, 2024 | DC-1221-13-2002-W-1 | NP |
2,524 | https://www.mspb.gov/decisions/nonprecedential/Campbell_James_D_SF-0845-20-0604-I-1_Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES D. CAMPBELL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0845-20-0604-I-1
DATE: January 18, 2024
THIS ORDER IS NONPRECEDENTIAL1
James D. Campbell , Phoenix, Arizona, pro se.
Carla Robinson , 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
denied his request for waiver of a Federal Employees’ Retirement System (FERS)
disability retirement annuity overpayment. For the reasons discussed below, we
GRANT the appellant’s petition for review, REVERSE the initial decision to find
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
that the appellant is entitled to a partial waiver, and REMAND the case to the
Western Regional Office for a determination of the proper waiver amount.
BACKGROUND
The appellant was a GS-12, step 4 Airplane Flight Instructor for the
Department of the Air Force, covered under FERS. Initial Appeal File (IAF),
Tab 14 at 35. This is a dual status position, meaning the appellant was required
as a condition of his employment to maintain membership in the Selected
Reserve. Id. at 38; see 10 U.S.C. § 10216(a)(1)(A), (C); 32 U.S.C. § 709. The
appellant satisfied that requirement through his membership in the Alaska Air
National Guard. IAF, Tab 14 at 53. However, on May 17, 2015, the appellant
was discharged from military service for medical reasons, and because of his loss
of membership in the Selected Reserve, he was separated from his dual status
civilian Airplane Flight Instructor position effective July 10, 2015. IAF, Tab 13
at 31-32, Tab 14 at 30. The appellant applied for disability retirement, and the
Office of Personnel Management (OPM) granted the appellant’s application under
the special provisions of 5 U.S.C. § 8456. IAF, Tab 14 at 12. The appellant’s
annuity commenced September 8, 2015, retroactive to the date of his separation.
IAF, Tab 13 at 9.
As OPM informed the appellant at the time of his retirement and each year
thereafter, if his earned income in any calendar year were to exceed 80% of the
current salary of the position from which he retired, he would be considered
restored to earning capacity, and his disability annuity would cease on June 30,
the following year. IAF, Tab 15 at 9, Tab 16 at 8-13; see 5 U.S.C. § 8455(a)(2);
5 C.F.R. § 844.402(a). On the date of his separation from service, the annual
salary of the appellant’s Airplane Flight Instructor position was $104,626. IAF,
Tab 14 at 30.
The appellant reported his earned income to OPM every year as required,
including on March 12, 2019, when he reported his earned income for 2018 as
3
$100,009. IAF, Tab 13 at 5. Suspecting that his 2018 earned income exceeded
the 80% limitation and having heard nothing about it from OPM, in June 2019,
the appellant reached out to an OPM official by telephone and left multiple
voicemails inquiring about the status of his disability retirement in light of his
2018 earnings. IAF, Tab 3 at 6, 74. However, this official never returned the
appellant’s calls, and even after the June 30 cutoff date had passed, the appellant
continued receiving his regular monthly annuity. IAF, Tab 3 at 6, Tab 12 at 28,
Tab 13 at 42.
Then, on January 29, 2020, OPM conducted a “Social Security Earnings
Match” on the appellant’s file and determined that the appellant’s 2018 income
had exceeded the 80% limitation. IAF, Tab 12 at 49-52. On February 5, 2020,
OPM notified the appellant of its findings and directed him to file certain
documentation to verify his 2018 earned income.2 Id. at 39-40. OPM further
informed the appellant that his 80% earnings limitation for 2018 was $88,440,
and that if his 2018 earned income exceeded that amount, his annuity would be
terminated retroactively and he would be responsible for repaying any
overpayment. Id. at 39-40. On February 14, 2020, the appellant responded,
confirming his 2018 earned income and inquiring as to whether any overpayment
could be waived under the circumstances. Id. at 44-45.
On March 9, 2020, OPM terminated the appellant’s annuity retroactive to
June 30, 2019. IAF, Tab 12 at 25, 35. On April 7, 2020, OPM informed the
appellant that he had been overpaid a net $25,855.65 in disability retirement
annuity benefits, which OPM intended to collect. Id. at 25. The appellant
requested reconsideration, and on July 1, 2020, OPM issued a final decision,
affirming its initial decision as to the existence and amount of the overpayment,
2 Unaware that this problem was caused by its own oversight, OPM was under the
impression that the appellant had misreported his 2018 earned income. IAF, Tab 12
at 39. In fact, the appellant’s self-report of 2018 earned income matched exactly with
what OPM belatedly discovered through a search of his Social Security records. IAF,
Tab 11 at 5, Tab 12 at 51.
4
and proposing to collect the overpayment in monthly installments of $250. Id.
at 5-16.
The appellant filed a Board appeal in which he did not challenge the
existence or amount of the overpayment but instead sought a waiver. IAF, Tab 1
at 3-5. He waived his right to a hearing, and the appeal was decided on the
written record. IAF, Tabs 23-24.
After the close of the record, the administrative judge issued an initial
decision affirming OPM’s final decision. IAF, Tab 26, Initial Decision (ID). He
found that, although the appellant was without fault in creating the overpayment,
there was no basis to grant his request for a waiver because recovery would not
be against equity and good conscience. ID at 11-25. The administrative judge
noted that the appellant was also attempting to contest OPM’s retroactive
cancellation of his health insurance, which had caused him to incur thousands of
dollars in out-of-pocket healthcare expenses, as well as a statement in OPM’s
decision letter that he would be ineligible for reinstatement of annuity even if his
earned income fell below the 80% limitation in the future. ID at 7, 9; IAF, Tab 3
at 12, Tab 12 at 6. However, the administrative judge found that the Board
lacked jurisdiction over these matters in the context of the instant appeal. ID at 9.
The appellant has filed a petition for review, disputing the administrative
judge’s overpayment waiver analysis, as well as his jurisdictional finding
concerning the termination of his health insurance. Petition for Review (PFR)
File, Tab 1. OPM has responded to the petition for review, and the appellant has
filed a reply to OPM’s response. PFR File, Tabs 3-4.
ANALYSIS
Before proceeding to the issues of overpayment and waiver, we first
address the Board’s jurisdiction over OPM’s decision to terminate the appellant’s
health insurance coverage. In his initial decision, the administrative judge found
that the Board lacks jurisdiction to consider claims concerning Federal employee
5
health insurance benefits. ID at 9; see Hudson v. Office of Personnel
Management, 114 M.S.P.R. 669, ¶ 10 (2010). On petition for review, the
appellant cites Chamblin v. Office of Personnel Management , 112 M.S.P.R. 266,
¶¶ 11-13 (2009), arguing that there are certain exceptions to this general rule,
including situations in which the appellant is seeking waiver of an overpayment
caused by the retroactive application of insurance premiums. PFR File, Tab 1
at 10-11.
The appellant is correct that the Board may have jurisdiction over health
insurance benefits decisions in this context. See Mitchell v. Office of Personnel
Management, 97 M.S.P.R. 566, ¶ 12 (2004). However, the overpayment in this
case did not result from the retroactive application of health insurance premiums,
and in fact, OPM reduced the amount of the overpayment by retroactively
deducting those premiums from the overpayment amount. IAF, Tab 12 at 25, 28.
Moreover, even if this exception did apply, the Board would still lack jurisdiction
over OPM’s decision on the appellant’s health insurance benefits per se and
would consider the matter only insofar as it bears on the issue of whether
collection of the overpayment would be against equity and good conscience. See
Mitchell, 97 M.S.P.R. 566, ¶¶ 10-12. We therefore find no basis to disturb the
administrative judge’s finding that the Board lacks jurisdiction over OPM’s
decision to retroactively terminate the appellant’s health insurance coverage.3
ID at 9.
Despite finding that the Board lacks jurisdiction over OPM’s health
insurance benefits decision per se, consistent with the Board’s holdings in
Chamblin and Mitchell, the administrative judge went on to consider the
consequences of this health insurance decision in the context of waiver. ID
3 Although the appellant does not contest this finding on review, we likewise agree with
the administrative judge that the Board lacks jurisdiction to consider whether the
appellant’s disability retirement could be reinstated if his income were to fall below the
80% limitation in the future. ID at 9; see 5 U.S.C. § 1204(h) (“The Board shall not
issue advisory opinions.”).
6
at 23-24. We likewise consider this matter in the context of our waiver analysis
below.
OPM bears the burden of proving by preponderant evidence the existence
and amount of an annuity overpayment. Vojas v. Office of Personnel
Management, 115 M.S.P.R. 502, ¶ 10 (2011); 5 C.F.R. § 1201.56(b)(2)(ii).
Because the appellant was restored to earning capacity as of December 31, 2018,
his disability retirement annuity should have ceased effective June 30, 2019. See
5 U.S.C. § 8455(a)(2); 5 C.F.R. § 844.402(a). Because OPM continued to pay the
annuity through February 2020 (eight extra monthly annuity payments), the
appellant received an overpayment of annuity. IAF, Tab 7 at 23; see Ruskin v.
Office of Personnel Management , 73 M.S.P.R. 544, 547, 551 (1997). The
appellant does not dispute OPM’s calculation that the net overpayment amounted
to $25,855.65. IAF, Tab 11 at 9, Tab 12 at 5, 28. This calculation appears
correct on its face, and we find no basis to disturb the administrative judge’s
finding that OPM proved the existence and the amount of the overpayment. ID
at 10-11.
An overpayment of FERS annuity is subject to recovery under the
provisions of 5 C.F.R. part 845, subpart B. However, recovery of an overpayment
may not be made from an individual when, in the judgment of OPM, the
individual is without fault and recovery would be against equity and good
conscience.4 5 U.S.C. § 8470(b); 5 C.F.R. § 845.301. The appellant bears the
burden of establishing his entitlement to a waiver by substantial evidence.
5 C.F.R. §§ 845.307(b), 1201.56(b)(2)(ii). For the reasons explained in the initial
decision, we agree with the administrative judge that the appellant was without
fault in causing the overpayment, and OPM does not dispute this finding on
4 The regulatory standards for waiver of overpayments under FERS are substantially
similar, and indeed almost identical, to those under the Civil Service Retirement System
(CSRS). Compare 5 C.F.R. part 831, subpart N, with 5 C.F.R. part 845, subpart C. We
find the case law interpreting the CSRS regulations to be instructive in interpreting the
FERS regulations.
7
review. ID at 12-14. Therefore, the only remaining issue regarding waiver of the
overpayment is whether recovery would be against equity and good conscience.
OPM’s regulations set forth three circumstances under which recovery
would be against equity and good conscience—financial hardship, detrimental
reliance, and unconscionability. 5 C.F.R. § 845.303. In this case, the
administrative judge found that the appellant was seeking waiver on the bases of
detrimental reliance and unconscionability. ID at 17-18. However, he found that
the appellant knew or suspected that he was receiving erroneous payments from
OPM, and was therefore obligated to set these payments aside pending resolution
of the matter. ID at 18-22. Because the set-aside rule applied in this case, the
administrative judge found that only exceptional circumstances involving
extremely egregious delays or errors by OPM would entitle the appellant to a
waiver. ID at 22. The administrative judge considered the nature of OPM’s
errors, the length of the delays involved in correcting the overpayment, and the
circumstances surrounding the appellant’s loss of health insurance, but he found
that these did not rise to the level of exceptional circumstances that would
warrant a waiver of the overpayment. ID at 22-25. The appellant disputes these
findings on review.
First, we address the appellant’s argument that the set-aside rule should not
apply in his case. PFR File, Tab 1 at 5-10. Under section I.C.4 of OPM’s Policy
Guidelines on the Disposition of Overpayments, an individual who suspects an
overpayment and promptly notifies OPM of the matter is required to set the
money aside pending recovery by OPM. IAF, Tab 17 at 15; see Slater v. Office of
Personnel Management , 42 M.S.P.R. 510, 516-17 (1989). This is known as the
“set-aside rule,” and the collection of money subject to this rule is not against
equity and good conscience absent exceptional circumstances involving extremely
egregious errors or delays by OPM. IAF, Tab 17 at 15. The appellant argues that
the set-aside rule should not apply in his case because it was not reasonable to
expect him to calculate the 80% earning limitation, considering that this is OPM’s
8
job and he did not have sufficient information to make an accurate calculation
himself. PFR File, Tab 1 at 5-7. He further argues that he acted diligently by
inquiring about the matter to OPM, and that he reasonably interpreted OPM’s
unresponsiveness as an indication that his 2018 income did not exceed the 80%
limitation. Id. at 7-10.
We agree with the appellant’s argument. As the administrative judge
correctly found, regardless of whether the appellant should reasonably have
suspected that he exceeded the 80% income limitation for 2018, he did in fact
suspect this, as evidenced by his own admissions and his follow-up telephone
calls to OPM. IAF, Tab 3 at 6, Tab 17 at 15. However, this is not the end of the
matter. The appellant’s suspicion was not that he had received an overpayment
but that he had exceeded the 80% income limitation and that his annuity would
therefore be terminated in the future; the appellant had not actually received any
overpayment of annuity until the month after he left OPM two voicemails about
the situation. In this regard, we find substantial evidence that the appellant acted
in a reasonably prudent manner by timely and accurately reporting his 2018
income to OPM and then following up with OPM when he had not gotten notice
that his annuity would be terminated. IAF, Tab 3 at 6, 74, Tab 13 at 5.
Furthermore, the appellant reasonably directed his follow-up inquiries to
the telephone number listed by the OPM official who had previously responded to
the appellant about another matter concerning his disability retirement annuity.
IAF, Tab 3 at 74, Tab 12 at 23. Therefore, regardless of what the appellant
suspected or should have suspected based on his 2018 income alone, by the time
he actually started receiving the annuity overpayment, things had changed
because OPM had remained persistently silent about the appellant’s annuity status
despite his multiple inquiries, thus leading him to believe that there was not any
problem with his annuity. As the appellant accurately points out, OPM’s Policy
Guidelines specifically state that a determination of whether an individual “knew”
or “should have known” something should account for “whether OPM failed to
9
respond to an inquiry by the debtor as to the correctness of payment(s) and, thus,
caused the debtor to reasonably believe that the payment(s) was correct.” PFR
File, Tab 1 at 9, Tab 17 at 11-12. Based on the facts above, we find substantial
evidence to support the appellant’s claim that, despite his earlier suspicions,
OPM’s failure to respond to his multiple inquiries led him to reasonably assume
that he was still eligible for disability retirement benefits. IAF, Tab 6 at 6-7.
We acknowledge that the appellant could perhaps have done more by
persisting in his inquiries to OPM until he received a definitive answer one way
or the other. However, this is a level of persistence not required by OPM’s
Guidelines. IAF, Tab 17 at 12. Furthermore, we find that it would be
inappropriate to place such a level of responsibility on a disability retirement
annuitant because he is not responsible for administering his own annuity, and he
should be entitled to presume that OPM would not likely create an overpayment
situation by failing to take note of his income report both when he filed it and
when he contacted OPM multiple times to ask about it. For these reasons, we
find substantial evidence that, by the time the appellant began receiving an
annuity overpayment in July 2019, he no longer reasonably suspected that his
annuity was continuing in error, and that the set -aside rule does not apply.5 See
Wright v. Office of Personnel Management , 105 M.S.P.R. 419, ¶ 5 (2007).
We emphasize that the appellant’s burden of proving entitlement to waiver
of an annuity overpayment is by substantial evidence. 5 C.F.R. §§ 845.307(b),
1201.56(b)(2)(ii). This is a lower standard of proof than preponderance of the
evidence and is defined as “[t]he degree of relevant evidence that a reasonable
person, considering the record as a whole, might accept as adequate to support a
5 The appellant argues in the alternative that, even if the rule applies, waiver is still
warranted due to “exceptional circumstances.” PFR File, Tab 1 at 16-26; IAF, Tab 17
at 15; see James v. Office of Personnel Management , 72 M.S.P.R. 211, 217 (1996)
(explaining that collection of monies subject to the set-aside rule may be waived only in
exceptional circumstances). Because we have found that the set-aside rule does not
apply, we decline to make any findings on this issue. However, we have considered the
appellant’s arguments in this regard to the extent that they bear on whether collection
would be unconscionable under 5 C.F.R. § 845.301(c).
10
conclusion, even though other reasonable persons might disagree.” 5 C.F.R.
§ 1201.4(p). Even if the evidence could be interpreted another way, that does not
mean that the interpretation discussed in paragraphs 17-19 above is not also
reasonable. This is all that is required for the appellant to carry his burden on the
issue of waiver. See In re Jolley , 308 F.3d 1317, 1320 (Fed. Cir. 2002) (“If the
evidence in record will support several reasonable but contradictory conclusions,
we will not find the Board’s decision unsupported by substantial evidence simply
because the Board chose one conclusion over another plausible alternative.”).
Because the set-aside rule does not apply, we now consider whether
recovery would be against equity and good conscience under 5 C.F.R. § 845.301,
on the bases of financial hardship, detrimental reliance, or unconscionability. See
Harrison v. Office of Personnel Management , 57 M.S.P.R. 89, 94-95 & n.5
(1993). Regarding financial hardship, although the appellant argues that he has
been financially damaged by OPM’s delay in terminating his annuity, we do not
construe this as an argument that collection of the overpayment would result in
“financial hardship” within the meaning of 5 C.F.R. §§ 845.301(a) and 845.304,
i.e., that he lacks the means to repay the debt without impoverishing himself.
IAF, Tab 17 at 16-19.
Nor do we find that the appellant is entitled to wavier under 5 C.F.R.
§ 845.301(c) on the basis of unconscionability. Consistent with OPM’s Policy
Guidelines, the Board has found that the unconscionability criterion is a high
standard that will only be met under exceptional circumstances. IAF, Tab 17
at 21-22; see Aguon v. Office of Personnel Management , 42 M.S.P.R. 540, 549
(1989). Because the concept of unconscionability is generally defined in terms of
broad, equitable considerations, the Board will consider all relevant factors using
a “totality-of-the-circumstances” approach in order to determine whether recovery
of an annuity overpayment is unconscionable in a given case. Id. at 550.
The appellant cites to OPM’s multiple failures to take note of his 2018
earnings and its consequent delay in terminating his annuity, as well as OPM’s
11
accusations of fraud and attempts to blame him for the overpayment. PFR File,
Tab 1 at 16-29. However, OPM’s delay in terminating the appellant’s annuity
and notifying him of the overpayment was less than a year. IAF, Tab 12 at 25,
35. Although this delay was unfortunate, we find that it was not so egregiously
excessive as to meet the high standard of unconscionability in 5 C.F.R.
§ 845.301(c).6 See also Newcomb v. Office of Personnel Management ,
42 M.S.P.R. 552, 554, 559 (finding that OPM’s delay of less than 2 years in
discovering an overpayment did not render collection unconscionable); cf. Estate
of Konschak v. Office of Personnel Management , 84 M.S.P.R. 555, ¶¶ 13-14
(1999) (finding that OPM’s 22-year delay in discovering an overpayment of more
than $100,000 rendered collection of that amount from an 82-year old annuitant
unconscionable). As for OPM’s recriminations against him, the appellant no
doubt found these to be both insulting and frustrating. However, we agree with
the administrative judge that there is insufficient basis to conclude that OPM’s
accusations were knowingly false, and in any event, this error was without
consequence to the appeal. ID at 22. The appellant has suffered no tangible harm
from OPM’s erroneous attribution of fault. Nor do there appear to be any
extenuating circumstances such as advanced age or mental disability that might
weigh in favor of a finding of unconscionability. For the reasons explained in the
initial decision, we agree with the administrative judge that the totality of the
circumstances do not support a finding that recovery would be unconscionable
under the circumstances.7 ID at 22-25.
6 In making this determination, we have considered that the delays involved in this case
are far shorter than the 4 years necessary to carry a presumption of unconscionability
under OPM’s Policy Guidelines. IAF, Tab 17 at 22; see Newcomb v. Office of
Personnel Management , 42 M.S.P.R. 552, 558-59 (1989).
7 The administrative judge made this finding in the context of his analysis of whether
exceptional circumstances existed to warrant waiver of the overpayment
notwithstanding the set-aside rule. ID at 22-25. However, under OPM’s Policy
Guidelines, the standard for waiver notwithstanding the set-aside rule is similar to the
standard for waiver based on unconscionability. IAF, Tab 17 at 15, 21-22. Therefore,
we find that the administrative judge’s analysis was not inconsistent with an analysis of
12
Nevertheless, for the following reasons, we agree with the appellant that he
is entitled to a partial waiver of the overpayment based on detrimental reliance
under 5 C.F.R. § 845.301(c). PFR File, Tab 1 at 11-16. Under OPM’s Policy
Guidelines, detrimental reliance occurs when the overpayment recipient
relinquishes a valuable right or changes positions for the worse because of the
erroneous payment or because of notice that such payment would be made. IAF,
Tab 17 at 19. To justify waiver, the loss of right or change of position must be
directly caused by the overpayment or notice of payment, detrimental to the
recipient, material, and irrevocable. Id. OPM defines “valuable right” as a
privilege, claim, entitlement, or benefit that has monetary worth. Id. An
individual changes positions for the worse when he is left in a worse financial
position after recovery than he was prior to his receipt of the overpayment. Id.
at 20. The concepts of losing a valuable right and changing positions for the
worse can often simultaneously apply to the same situation. Id.
In this case, we find that the overpayment of annuity directly caused the
appellant to relinquish the valuable right of employer-sponsored health insurance.
As the appellant explains it, if OPM had notified him in timely manner that his
disability retirement benefits were going to be terminated, he would have
purchased employer-sponsored health insurance in July 2019. IAF, Tab 6
at 13-14. However, relying on OPM’s failure to terminate his annuity and its
silence in the face of his multiple inquiries, the appellant believed that his Federal
health insurance benefits would continue, and so he did not purchase alternative
insurance at that time. Id. Believing that he was still covered under Federal
health insurance benefits, the appellant continued to incur healthcare expenses
over the following months, and his medical bills continued to be paid by his
insurance, which had not yet been canceled. Then, when OPM retroactively
cancelled the appellant’s Federal health insurance benefits on March 9, 2020, his
whether exceptional circumstances existed so as to warrant waiver of the overpayment
on unconscionability grounds under 5 C.F.R. § 845.301(c).
13
former insurer sought reimbursement from providers for all the claims that he had
made since August 2019,8 resulting in $5,451.95 in uninsured healthcare liability
for the appellant. IAF, Tab 3 at 12, 51, 62-73.
Furthermore, the appellant has shown that the timing of OPM’s actions
rendered him unable, as a practical matter, to obtain employer-sponsored health
insurance for the 17-month period from between August 2019 and January 2021.
IAF, Tab 3 at 7. Specifically, health insurance open enrollment at the appellant’s
employer occurs in the fall, and coverage begins the following January. PFR
File, Tab 1 at 12. To obtain coverage outside that period, an individual must
enroll within 31 days of a qualifying life event. IAF, Tab 3 at 13, 53. The
appellant’s loss of Federal health insurance constituted a qualifying life event, but
due to its retroactive nature, the appellant was not apprised of it until well after
the 31-day window had passed, and his employer denied the appellant’s
April 2020 application for out-of-season enrollment for that reason. Id. at 54-61.
Because the 2019 open enrollment season had already passed by the time OPM
informed the appellant about his retroactive loss of coverage, the appellant’s next
opportunity to enroll with his employer was in the 2020 open season, for
coverage beginning January 1, 2021. PFR File, Tab 1 at 12.
Turning to the criteria set forth in OPM’s Policy Guidelines for waiver
based on the loss of a valuable right, IAF, Tab 17 at 19, for the reasons explained
above, we find that employer-sponsored health insurance is a valuable right and
that the appellant’s decision to forego it is directly attributable to the
overpayment of annuity.9 We also find that the appellant’s relinquishment of
employer-sponsored health insurance was materially detrimental to his financial
8 This accounts for the June 30, 2019 termination of the appellant’s coverage, as well as
a 31-day extension that allowed his claims to be covered through July 2019. IAF, Tab 3
at 51.
9 We note that the appellant’s Federal health insurance premiums were paid for by
deductions from his disability retirement annuity and that his eligibility for Federal
health insurance benefits was inextricably linked to his status as an annuitant. See
5 C.F.R. § 890.306(a)(1).
14
situation because it resulted in a financial loss to him in the form of substantial
out-of-pocket medical expenses that would otherwise have been paid by his
insurer. We further find that the relinquishment of this benefit is irrevocable, as
we are unaware of any mechanism for obtaining retroactive health insurance
coverage. We therefore find that the appellant has proven by substantial evidence
that he is entitled to waiver under 5 C.F.R. § 845.301(b) on the basis of his loss
of a valuable right. IAF, Tab 17 at 19; see King v. Office of Personnel
Management, 730 F.3d 1342, 1348-51 (Fed. Cir. 2013). Observing that, after
collection of the overpayment, the appellant will be left in a worse financial
position than if he had never received the overpayment in the first place, we also
find that the appellant is entitled to waiver under 5 C.F.R. § 845.301(b) because
he has changed his position for the worse. IAF, Tab 17 at 20; see Gromo v.
Office of Personnel Management , 944 F.2d 882, 884-85 (1991).
Nevertheless, because the appellant’s claimed financial losses of $5,451.95
represent a relatively small part of the total overpayment amount, we find that it
would be inappropriate to grant a waiver for the entire $25,855.65. According to
OPM’s Policy Guidelines, the amount of the waiver should depend on the degree
to which the individual’s position was changed for the worse, and a partial waiver
may be granted that appropriately reflects the degree of detrimental reliance.
IAF, Tab 17 at 20-21; see Fearon v. Office of Personnel Management ,
109 M.S.P.R. 606, ¶ 5 (2008). In this case, we find that it would be appropriate
to grant a partial waiver of the overpayment, such that the appellant will not
realize a windfall but will still not be in a worse financial position due to his loss
of health insurance coverage fairly attributable to OPM’s error.
Nevertheless, the precise amount of the waiver that should be granted is not
clear from the extant record. The appellant below stated that the retroactive
termination of his annuity resulted in $5,451.95 in extra uncovered healthcare
expenses for him, and he has provided some documentation to substantiate his
claim. IAF, Tab 3 at 12, 51, 62-73. However, on petition for review, the
15
appellant appears to be claiming a total of $5,600 in extra expenses. PFR File,
Tab 1 at 14. Furthermore, it does not seem that the appellant deducted from this
total the healthcare premiums that he would have otherwise been paying through
his employer if OPM had timely notified him of the termination of his annuity.
Nor is it clear to us whether the appellant’s claimed amount represents only the
period of retroactivity or whether it also encompasses uncovered healthcare
expenses that he may have incurred between March 9, 2020, and the
commencement of his employer-sponsored insurance on January 1, 2021. For
these reasons, we find it appropriate to remand this appeal for the administrative
judge to take relevant evidence and argument and decide on an appropriate partial
waiver amount in the first instance. This might be a rather complex calculation
with many factors involved and may require a considerable amount of judgment
and discretion. Therefore, the parties are strongly encouraged to cooperate in
good faith and, if possible, arrive at a mutually agreeable figure to present to the
administrative judge.
ORDER
For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Campbell_James_D_SF-0845-20-0604-I-1_Remand Order.pdf | 2024-01-18 | JAMES D. CAMPBELL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0845-20-0604-I-1, January 18, 2024 | SF-0845-20-0604-I-1 | NP |
2,525 | https://www.mspb.gov/decisions/nonprecedential/Baker_Mitzi_G_CH-1221-19-0187-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MITZI G. BAKER,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
CH-1221-19-0187-W-1
DATE: January 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mitzi G. Baker , Chicago, Illinois, pro se.
Lyndsey Frushour , Esquire, and Linda M. Januszyk , Esquire, Baltimore,
Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in her individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant’s second prior Board appeal also constituted protected
activity that was a contributing factor in a personnel action, to find that the
appellant was subjected to a significant change in working conditions personnel
action, and to supplement the administrative judge’s analysis that the agency
established by clear and convincing evidence that it would have taken the same
personnel actions absent the appellant’s protected activities, we AFFIRM the
initial decision.
BACKGROUND
The appellant is employed as a Paralegal Specialist/Case Manager with the
agency’s Chicago National Hearing Center (NHC). Initial Appeal File (IAF),
Tab 1 at 2; Tab 99 at 67. She filed an IRA appeal alleging that, in reprisal for
filing Board appeals in 2017 and 2018, the agency took the following personnel
actions: (1) failed to select her for a detail in June 2018; (2) subjected her to a
hostile work environment by, among other things, assigning her to the Falls
Church NHC; (3) denied her a performance award for fiscal year 2017; (4) issued
her a low rating on her fiscal year 2018 performance evaluation; and (5) issued
her a letter of reprimand on September 28, 2018. IAF, Tab 1 at 14.
3
After the appellant withdrew her request for a hearing, IAF, Tabs 69, 72,
the administrative judge issued an initial decision based on the written record,
IAF, Tab 107, Initial Decision (ID) at 3. The administrative judge found that the
appellant engaged in protected activity that was a contributing factor to her
alleged personnel actions, except for her hostile work environment claim. ID
at 2, 6-7, 10-11. Regarding the hostile work environment claim, the
administrative judge found that the appellant failed to show that she was
subjected to a significant change in duties, responsibilities, or working
conditions. ID at 7-9. The administrative judge further found that the agency
proved by clear and convincing evidence that it would have taken the same
actions absent the appellant’s protected activity. ID at 11-17.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has opposed the appellant’s petition and the appellant
has filed a reply. PFR File, Tabs 5, 8.
DISCUSSION OF ARGUMENTS ON REVIEW
Both of the appellant’s prior Board appeals constituted protected activity and the
appellant established that they were both a contributing factor to the alleged
personnel actions.
The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedies before the Office of Special Counsel
(OSC) and makes nonfrivolous allegations that: (1) she made a protected
disclosure or engaged in protected activity; and (2) the disclosure or activity was
a contributing factor in the agency’s decision to take or fail to take a personnel
action. Williams v. Department of Defense , 2023 MSPB 23, ¶ 8; Salerno v.
Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). After establishing the
Board’s jurisdiction in an IRA appeal, the appellant must establish a prima facie
case of whistleblower retaliation by proving by preponderant evidence that she
made a protected disclosure or engaged in protected activity that was a
contributing factor in an agency decision to take or fail to take a personnel action.
4
Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 6; Lu v. Department
of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015); see 5 U.S.C. § 1221(e)(1).
One way to prove contributing factor is by the knowledge/timing test under which
an appellant may show that her protected disclosure or activity was a contributing
factor in a personnel action through circumstantial evidence, such as evidence
that: (1) the official taking the personnel action knew of the disclosure or
activity; and (2) that the personnel action occurred within a period of time such
that a reasonable person could conclude that the disclosure or activity was a
contributing factor in the personnel action. Smith v. Department of the Army ,
2022 MSPB 4, ¶ 19; Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 13
(2015); see 5 U.S.C. § 1221(e)(1).
Here, the record reflects that the appellant filed two prior Board appeals
alleging whistleblower reprisal. In April 2017, she filed an IRA appeal alleging
that the agency subjected her to alleged personnel actions in reprisal for making
various alleged protected disclosures. Baker v. Social Security Administration ,
CH-1221-17-0318-W-1, Initial Appeal File (0318 IAF), Tab 1. In June 2018,
she filed another IRA appeal alleging that her supervisor issued her a low
performance rating in 2017 in reprisal for her 2017 Board appeal, i.e., for filing
an appeal seeking to remedy a violation of 5 U.S.C. § 2302(b)(8). Baker v. Social
Security Administration , CH-1221-18-0412-W-1, Initial Appeal File (0412 IAF),
Tab 1. The administrative judge found that the appellant’s first Board appeal
constituted protected activity because it raised a claim of reprisal for
whistleblowing, but she did not address the second appeal. ID at 6-7. We agree
with the administrative judge’s finding regarding the first appeal, but modify the
initial decision to find that the appellant’s second Board appeal also constituted
protected activity because it also sought to remedy reprisal for whistleblowing.
See Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 7 (2013)
(explaining that the Whistleblower Protection Enhancement Act extended the
Board’s IRA jurisdiction to claims arising under 5 U.S.C. § 2302(b)(9)(A)(i)).
5
Regarding contributing factor, we find that the responsible management
officials had knowledge of the appellant’s protected activity. The record reflects
that J.B., the appellant’s first-level supervisor, issued the appellant a reprimand
on September 28, 2018, and rated the appellant on her 2018 performance
evaluation on October 23, 2018. IAF, Tab 99 at 62-63. K.C., the appellant’s
second-level supervisor, made the decision to assign the appellant to the Falls
Church NHC on or about July 17, 2018, and in July 2019 she also made the
decision to deny the appellant’s performance award for fiscal year 2017.
Id. at 50-52. She was also involved in the decision not to select the appellant for
a detail and to issue the appellant the reprimand. Id. at 48-50. Chief
Administrative Law Judge (ALJ) J.P., the appellant’s third-level supervisor, made
the decision not to select the appellant for a detail on or about June 5, 2018.
IAF, Tab 11 at 88.
J.B. became aware of the appellant’s 2017 Board appeal on November 28,
2017. 0412 IAF, Hearing Transcript at 92-93 (testimony of J.B.). J.B. and K.C.
were also aware of the appellant’s 2018 Board appeal as of July 2018 when they
learned of and/or received a copy of the appellant’s June 15, 2018 jurisdictional
response, which contained unauthorized personally identifiable information (PII)
of claimants, for which J.B. issued the appellant the September 28, 2018
reprimand. IAF, Tab 99 at 50, 61-62, Tab 11 at 83. K.C. and Chief ALJ J.P. had
knowledge of the appellant’s 2017 Board appeal because they testified at the
hearing in that appeal on January 25, 2018. 0318 IAF, Hearing Transcript. The
alleged personnel actions occurred between June and October 2018, within 1 and
a half years of when the appellant filed her 2017 Board appeal and within months
of when she filed her 2018 Board appeal. Accordingly, the appellant has
established that her protected activities were a contributing factor in the alleged
personnel actions. See Peterson v. Department of Veterans Affairs , 116 M.S.P.R.
113, ¶ 16 (2011) (stating that a personnel action taken within 1 to 2 years of the
appellant’s disclosure satisfies the knowledge-timing test).
6
The administrative judge properly found that the appellant did not exhaust
discrete events in support of her alleged hostile work environment claim that
occurred after the Office of Special Counsel issued its close out letter.
The appellant contends that she was subjected to additional personnel
actions not addressed above, specifically a significant change in duties,
responsibilities, or working conditions as part of an alleged hostile work
environment. IAF, Tab 86 at 3, 15-18. In support of her claim, she alleges that
the agency assigned her undesirable duties when, effective April 2, 2018, she was
assigned to temporarily work for ALJ F.R. and, in July 2018, she was assigned to
work for the Falls Church NHC. IAF, Tab 87 at 3, 19-20. She further raised
numerous other alleged incidents of harassment that occurred in 2019 and 2020.
Id. at 15-17.
Although the appellant characterized her claims as establishing a hostile
work environment, we agree with the administrative judge that the only claims
the appellant exhausted before OSC concerning an alleged hostile work
environment were the April and July 2018 changes to her job duties. ID at 9. To
the extent the appellant raised a myriad of additional alleged incidents of a hostile
work environment that occurred over the course of the year after OSC issued its
close out letter on December 6, 2018, IAF, Tab 1 at 14, Tab 87 at 15-17, we agree
with the administrative judge that such claims were not exhausted before OSC.
After the issuance of the initial decision, the Board decided Chambers v.
Department of Homeland Security , 2022 MSPB 8 ¶ 10, in which it clarified that
the substantive requirements of exhaustion are met when an appellant has
provided OSC with a sufficient basis to pursue an investigation and that the
Board’s jurisdiction in an IRA appeal is limited to those issues that have been
raised with OSC. Although we acknowledge that an appellant can give a more
detailed account of her whistleblowing activities before the Board than she did to
OSC, see Chambers, 2022 MSPB 8, ¶ 10, we find that OSC could not have
pursued an investigation of events that occurred after it closed its investigation,
7
see id. (stating that the purpose of requiring an appellant to exhaust his remedies
before OSC before filing an IRA with the Board is to give OSC the opportunity to
take corrective action before involving the Board in the case); Onasch v.
Department of Transportation , 63 M.S.P.R. 158, 164 (1994) (finding that the
appellant failed to prove exhaustion when OSC issued its termination letter before
a performance appraisal was issued such that OSC could not have investigated the
circumstances surrounding the appraisal).
On review, the appellant asserts that the administrative judge erred in
finding that her post-December 6, 2018 hostile work environment claims were not
exhausted before OSC because they were part of a continuing hostile work
environment that she did exhaust before OSC. PFR File, Tab 3 at 25. Although
she does not cite it, the appellant appears to reference National Railroad
Passenger Corporation v. Morgan , 536 U.S. 101, 115-17 (2002), in which the
Supreme Court held that an employee alleging a hostile work environment claim
under Title VII of the Civil Rights Act of 1964 may rely on component acts of the
hostile work environment falling outside of the statutory time period for filing a
charge with the Equal Employment Opportunity Commission provided that one of
the acts contributing to the claim occurred within the filing time period. We find
that the continuing violation doctrine is inapplicable here. An appellant in an
IRA appeal must meet a statutory administrative exhaustion requirement, which is
why this case is not akin to the situation in Morgan. See 5 U.S.C. § 1214(a)(3).
Here, the appellant neither amended her OSC complaint to incorporate her
post-December 6, 2018 allegations of reprisal, nor sought to file a new complaint
with OSC.
The administrative judge correctly found that the appellant’s April 2018
assignment did not constitute a significant change in working conditions
personnel action but the administrative judge erred in her similar finding
regarding the July 2018 assignment.
The administrative judge found that the appellant failed to prove that
she was subjected to a hostile work environment because the changes to the
8
appellant’s assignments did not amount to a significant change in the appellant’s
working conditions, but rather constituted management decisions on how to
assign paralegal work efficiently and appropriately. ID at 8-9. In particular, she
found that the appellant did not present evidence of the kind of pervasive and
severe behavior that objectively could be considered a change in working
conditions sufficient to constitute a hostile work environment. ID at 8.
She further found that a reasonable person would consider the assignments
legitimate and that the agency did not retaliate against the appellant for having
engaged in protected activity. ID at 9. Such an analysis, however, conflates the
issues of whether the appellant was subjected to a personnel action and whether
the agency proved that it would have taken such a personnel action absent the
appellant’s protected activity.
Although the appellant characterized her claims as an ongoing hostile work
environment claim, as discussed previously, we may only consider whether the
claims she exhausted before OSC—the April and July 2018 changes to her duties
—constitute a significant change personnel action. We agree with the
administrative judge that the April 2018 assignment did not constitute a
significant change personnel action. However, as set forth below, we modify the
initial decision to find that the appellant proved that she was subjected to a
significant change personnel action when, effective July 30, 2018, she was
assigned to work for the Falls Church NHC.
The appellant contends that she was subjected to a significant change
personnel action when, effective April 2, 2018, she was assigned to work for ALJ
F.R., who was temporarily assigned to hold hearings for the Chicago NHC for the
months of June to August 2018 until ALJ F.R. began hearing specialized fraud
cases.2 IAF, Tab 87 at 19, Tab 99 at 145-50. As part of her duties while assigned
to ALJ F.R., the appellant was responsible for case workup, pre-hearing
2 The appellant’s physical work location remained the Chicago NHC while she was
assigned to work for ALJ F.R.
9
development, scheduling, and closing the hearing. IAF, Tab 99 at 161-63. The
record reflects that as of March 2018, the appellant was not assigned to work for
a specific ALJ, but rather had been performing other duties, including, among
other things, assisting the master docket clerk with electronic folder transactions,
processing predevelopment for unrepresented claimants, and assisting with
congressional responses for cases not assigned to judges. IAF, Tab 87 at 19,
Tab 99 at 140; Tab 11 at 79.
We find that the appellant has not shown that her April 2, 2018 temporary
assignment to ALJ F.R. was a significant change in duties because the record
reflects that case managers, such as the appellant, were commonly assigned
different duties to meet office needs, including assignments to different ALJs.
IAF, Tab 100 at 120; see, e.g., Shivaee v. Department of the Navy , 74 M.S.P.R.
383, 388 (1997) (considering whether it was common to relocate the work site of
agency employees from a building inside the naval base to a building located
outside the naval base in addressing whether the appellant’s office move was
“significant”). For example, in September 2017, the appellant had been assigned
to another ALJ who was located in Atlanta, Georgia but handing cases for the
Chicago NHC. IAF, Tab 11 at 78-79; Tab 90 at 54. The appellant also submitted
a declaration from a different former ALJ in the Chicago NHC for whom she
previously had been assigned to work. IAF, Tab 90 at 53. Additionally, in
April 2018, two other case managers who were not assigned to a specific ALJ at
that time were similarly assigned to assist other ALJs temporarily assigned to the
Chicago NHC. IAF, Tab 99 at 55, 150.
The appellant also alleges that her assignment to ALJ F.R. was effectively
a demotion from a case manager to a legal assistant. IAF, Tab 86 at 16,
Tab 6 at 27. However, the record reflects that there is some overlap between case
manager duties and legal assistant duties and that most case managers also
performed some legal assistant duties. IAF, Tab 99 at 55-56, 68-74,
Tab 100 at 122-28. The record further reflects that, at the appellant’s request,
10
another case manager was assigned to assist her. IAF, Tab 99 at 55, 159-67.
Thus, we find that the appellant has not sufficiently explained which duties
she was performing that were legal assistant duties and how or why her
performance of such duties amounted to a significant change. See Skarada,
2022 MSPB 17, ¶ 23 (stating that to prove that the agency subjected her to a
“significant change” in duties, responsibilities, or working conditions, the
appellant must provide sufficient information and evidence to allow the Board to
determine whether the agency’s alleged action or actions were “significant”).
Next, we turn to the appellant’s assertion that she was subjected to a
significant change personnel action when the agency assigned her to work for a
different office, the Falls Church NHC, effective July 30, 2018. IAF, Tab 6 at 28,
152, Tab 86 at 18. The record reflects that on July 17, 2018, K.C., the appellant’s
second-level supervisor, reached out to the NHC Central Office Branch to
propose that the appellant be assigned to work up cases for the Falls Church NHC
instead of the Chicago NHC. IAF, Tab 100 at 9. The NHC Central Office agreed
to the arrangement and the appellant was informed that, effective July 30, 2018,
she would transition to assisting virtually with case work up for the Falls Church
NHC. Id. at 13. Although she remained in Chicago, her supervisory chain was in
the Central Office NHC and she reported directly to the Branch Chief of the
Workload Control Branch. Id. at 8, 34. Additionally, the appellant’s new
supervisor instructed her not to speak to anyone at the Chicago NHC.
IAF, Tab 89 at 24. This assignment does not appear to have been temporary as
the record reflects that the appellant continued to work for the Falls Church NHC
as of June 28, 2019, when her new supervisor issued her a performance appraisal.
Id. at 22. We find that, under these circumstances, the appellant’s assignment to
work for the Falls Church NHC, a different office, and to report to a different
supervisory chain constitutes a significant change. Nothing in the record suggests
that it was common for case managers to be permanently assigned to work for a
11
different office and the decision to do so appears to have singled out the appellant
without affecting any other case managers.
Additionally, we find that the appellant has met her burden of proving that
her prior protected activities were a contributing factor in her assignment to Falls
Church NHC because, as discussed above, the appellant’s second-level supervisor
was aware of the appellant’s 2017 and 2018 Board appeals, and the appellant was
assigned to the Falls Church office a little over a year after she filed her 2017
IRA appeal and a couple of months after she filed her 2018 Board appeal. See
Peterson, 116 M.S.P.R. 113, ¶ 16.
The agency proved by clear and convincing evidence that it would have taken the
same personnel actions absent the appellant’s protected activity.
Even if an appellant establishes that she engaged in protected activity that
was a contributing factor to the agency’s personnel action, the Board will not
order corrective action if the agency can show by clear and convincing evidence
that it would have taken the action absent the protected disclosures. 5 U.S.C.
§ 1221(e)(2); Lu, 122 M.S.P.R. 335, ¶ 7. Clear and convincing evidence is that
measure or degree of proof that produces in the mind of the trier of fact a firm
belief as to the allegations sought to be established; it is a higher standard than
the “preponderance of the evidence” standard. Sutton v. Department of Justice ,
94 M.S.P.R. 4, ¶ 18 (2003), aff’d, 97 F. App’x 322 (Fed. Cir. 2004); 5 C.F.R.
§ 1209.4(e).
In determining whether an agency has met this burden, the Board will
consider the following factors: (1) the strength of the agency’s evidence in
support of the 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. Lu, 122 M.S.P.R. 335,
¶ 7 (citing Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir.
1999)). When, as here, the personnel actions at issue are not disciplinary in
12
nature, the first Carr factor does not apply straightforwardly, and it is appropriate
to consider the broader question of whether the agency had legitimate reasons for
its action. Smith, 2022 MSPB 4, ¶ 23. In considering the second Carr factor, in
addition to any individual motive to retaliate by the agency managers involved in
the decision, we must fully consider whether a motive to retaliate can be imputed
to the agency officials involved and whether those officials possessed a
professional or institutional motive to retaliate because the protected disclosures
and activities implicated agency officials and employees in general. Soto v.
Department of Veterans Affairs , 2022 MSPB 6, ¶¶ 14-15; see Whitmore v.
Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012). Regarding the third
Carr factor, in the absence of evidence regarding how similarly situated
non-whistleblowers are treated, this factor can drop out of the analysis. Semenov
v. Department of Veterans Affairs , 2023 MSPB 16, ¶ 42. To the extent the
agency does not present any evidence concerning how it treated similarly situated
non-whistleblowers, this factor cannot favor the agency, however, the lack of
evidence does not necessarily prevent the agency from meeting its overall clear
and convincing burden. Id.; Soto, 2022 MSPB 6, ¶ 18; see Rickel v. Department
of the Navy, 31 F. 4th 1358, 1366 (Fed. Cir. 2022); Whitmore, 680 F.3d at 1374.
The Board does not view the Carr factors as discrete elements, each of
which the agency must prove by clear and convincing evidence. Rather, the
Board will weigh the factors together to determine whether the evidence is clear
and convincing as a whole. Id. The Board must consider all of the evidence
presented, including evidence that detracts from the conclusion that the agency
met its burden. Whitmore, 680 F.3d at 1368.
As set forth below, we modify the initial decision to supplement the
administrative judge’s analysis of the Carr factors, but still conclude that the
agency met its burden. We also modify the initial decision to find that the agency
proved by clear and convincing evidence that it would have assigned the
appellant to work for the Falls Church NHC absent her prior protected activity
13
because the strength of the evidence in support of its actions outweighs any
motive to retaliate.3
Nonselection for Detail
The appellant contends that the agency did not select her for a 120-day
detail to perform supervisory case manager duties in reprisal for her prior Board
appeals. IAF, Tab 87 at 2, 12-14. The record reflects that on June 5, 2018,
Chief ALJ J.P. made the decision to select another individual for the detail from a
list of six applicants. IAF, Tab 100 at 113-14. According to the appellant’s
second-level supervisor, she discussed the candidates with Chief ALJ J.P. and
they believed that the appellant lacked the interpersonal skills and had conflicts
with too many employees in the office to be the best-qualified applicant for the
detail. IAF, Tab 99 at 49. According to a sworn statement from an agency labor
and employee relations attorney, Chief ALJ J.P. retired and was unable to provide
an affidavit due to his medical situation. Id. at 65-66.
The statement that the appellant had conflicts with many employees could
refer to her protected activity against management. However, management’s
stated concern over the appellant’s interpersonal skills is supported by other
evidence in the record, including her fiscal year 2018 performance appraisal
which noted specific deficiencies in her interpersonal skills unrelated to her
protected activity. IAF, Tab 11 at 78-79. In particular, management clearly had
concerns about her interactions with ALJ F.R. IAF, Tab 99 at 166, 173-76. The
record also includes email correspondence from the appellant that generally
supports the agency’s view. Id. at 153-54, 168; Tab 100 at 105; 0318 IAF,
Tab 57 at 23; 0412 IAF, Tab 7 at 40.
The appellant’s performance rating of a 3 (out of 5) in interpersonal skills
for fiscal year 2018 is also consistent with the ratings she received on her 2016
3 The administrative judge did not address whether the agency met its clear and
convincing evidence burden regarding this personnel action because, as discussed
above, she found that the appellant failed to prove it constituted a personnel action.
14
and 2017 performance evaluations. 0412 IAF, Tab 7 at 25, Tab 82 at 4. In her
2016 performance evaluation, her prior supervisor indicated, “there have been
continual instances in which you communicated in a confrontational manner.”
0412 IAF, Tab 82 at 4. Such concerns predate the appellant’s 2017 and 2018
Board appeals. The record also reflects that on March 13, 2017, prior to either of
the appellant’s Board appeals, Chief ALJ J.P. observed that the appellant “often
[had] conflicts” and started email chains regarding such conflicts. IAF,
Tab 89 at 13.
However, we must consider the evidence that detracts from the conclusion
that the appellant’s interpersonal skills were lacking. The appellant asserts that
the agency’s reasoning is contrary to her temporary supervisor’s characterization
of her interpersonal skills just prior to her nonselection. IAF, Tab 86 at 19.
She points to her temporary supervisor’s April 20, 2018 performance discussion
notes that described the appellant’s interpersonal skills as follows: “[y]our
interactions with co-workers, management, ALJ’s and the public are cordial and
professional.” IAF, Tab 6 at 92. However, this individual appears to have only
supervised the appellant for less than 4 months while the appellant’s first-level
supervisor, J.B., was on a detail. IAF, Tab 99 at 58-59. The appellant also
submitted her fiscal year 2019 performance evaluation from the Falls Church
NHC supervisor who rated the appellant 5 (out of 5) in interpersonal skills
and stated that the appellant “has demonstrated sound interpersonal skills.” IAF,
Tab 89 at 19. However, this one review, which was for a period after the
disputed detail, is inconsistent with the weight of the record evidence concerning
the appellant’s interpersonal skills in the period prior to the decision regarding
the detail. We find that the agency has provided strong evidence of legitimate
reasons for its decision not to select the appellant for the detail.
Regarding the second Carr factor, both K.C. and Chief ALJ J.P. could have
had a motive to retaliate for the appellant’s 2017 Board appeal, which named and
implicated both individuals, and at which both testified at the hearing on
15
January 25, 2018.4 However, the strength of any motive is tempered by the fact
that there is no indication that either faced any adverse consequences or
discipline due to the appellant’s alleged disclosures that implicated them. See
Rickel, 31 F.4th at 1366 n.4 (referencing with approval the Board’s finding that a
motive to retaliate was tempered by the lack of adverse consequences as a result
of the protected activity). Additionally, we acknowledge that both individuals
could have had an institutional motive to retaliate for the appellant’s disclosures
of alleged agency wrongdoing, but the evidence suggesting such a motivation is
slight. In sum, we find that there was some motive to retaliate.
Regarding Carr factor three, several other individuals were not selected for
the detail, but the agency has not presented evidence concerning whether they
were whistleblowers. Thus, based on this incomplete information, this
Carr factor cannot support the agency. Nevertheless, weighing all the evidence,
including the evidence that detracts from the conclusion, we find that the
agency’s legitimate reasons for not selecting the appellant for the detail outweigh
any motive to retaliate.5 Having found that the agency met its clear and
convincing burden, we deny corrective action regarding this personnel action.
July 2018 assignment to the Falls Church NHC
Regarding the agency’s reasons for its decision to assign the appellant to
the Falls Church NHC, the record reflects that on July 17, 2018, the appellant’s
second-level supervisor, K.C., requested that the appellant be assigned to work up
cases for the Falls Church NHC because that office was short-handed and noted
that “with all that [was] going on with [the appellant], it might be a good way to
have [the appellant] just work on one project and not be assigned to a judge.”
4 The appellant’s 2017 appeal is pending on remand before the Central Regional Office
under docket number CH-1221-17-0318-B-3.
5 Even if we were to find that the lack of evidence regarding how similarly situated non-
whistleblowers were treated cut slightly against the agency, we would still find that,
weighing all of the evidence, the agency met its burden.
16
IAF, Tab 100 at 9. It is unclear from the record to what the appellant’s
supervisor was referring when she referenced all that was going on with the
appellant, though conceivably she could have been referring to the appellant’s
protected activity. In a sworn affidavit, K.C. stated that she felt assigning the
appellant to the Falls Church NHC was the best course of action because the
appellant had expressed that she did not wish to be assigned to an ALJ and
because ALJ F.R. reported to management that she was unhappy with her
interactions with the appellant, including the appellant’s response when asked to
create a hearing sheet prior to a hearing. IAF, Tab 99 at 51.
The appellant does not dispute such assertions, but rather argues that
she was improperly assigned to an ALJ in violation of a prior agreement reached
during the reasonable accommodation process. IAF, Tab 103 at 26. Such a
contention appears consistent with K.C.’s assertion that the appellant did not want
to work for an ALJ. Additionally, record evidence supports K.C.’s reference in
her email that ALJ F.R. was not happy working with the appellant. IAF, Tab 6
at 157-58, Tab 99 at 173-76. In early June 2018, ALJ F.R. notified management
that the appellant was apparently refusing to prepare a cover sheet for hearings
and stated, “[t]here is more to my interactions with her, but I will not overload
you with details.” IAF, Tab 99 at 175. In response, K.C. suggested that if the
appellant was not able to do what ALJ F.R. wanted, they would assign someone
else to work for her. Id. at 174. Moreover, the record reflects that the appellant
expressed her displeasure with her assignment to ALJ F.R. and even viewed it to
be a demotion to legal assistant position. IAF, Tab 6 at 129, 131, 139, 142.
Thus, considering all the evidence, we find that the agency presented significant
evidence that it had legitimate reasons for its decision to assign the appellant to
the Falls Church NHC.
Regarding the second Carr factor, as discussed, K.C. could have had a
motive to retaliate for the appellant’s 2017 Board appeal. Although K.C. may
have been aware of the appellant’s 2018 Board appeal at the time she inquired
17
about reassigning the appellant, she would not have had much motive to retaliate
because she was not the subject of the appellant’s 2018 Board appeal.6 We
acknowledge that K.C. could have had an institutional motive to retaliate for the
appellant’s protected activities, but evidence suggesting such a motivation is
slight. Thus, in sum, we find that there was some motive to retaliate.
As to the third Carr factor, there is no record evidence concerning the
agency’s treatment of similarly situated non-whistleblowers and thus again this
factor drops out of the analysis. Therefore, this factor cannot weigh in the
agency’s favor.7 Nonetheless, we find that the agency’s legitimate reasons for its
decision outweigh any motive to retaliate. Having found that the agency met its
clear and convincing burden, we deny corrective action regarding this personnel
action.
Denial of Performance Award for Fiscal Year 2017
Next, the appellant contends that her second-level supervisor, K.C.,
withheld her performance award for fiscal year 2017 in reprisal for her protected
activity. IAF, Tab 87 at 9. According to K.C., in July 2018, she made the
decision to withhold the appellant’s award because the appellant had been issued
a 3-day suspension in October 2017 and she was given guidance from the labor
and employee relations support office that the agency has the discretion not to
grant an award based on the employee’s receipt of a disciplinary action in the
most recent fiscal year. IAF, Tab 99 at 51-52, 127-29. The administrative judge
found that the agency had strong evidence in support of its decision to withhold
the appellant’s performance reward because it was supported by a “clear and
unambiguous policy” in the collective bargaining agreement (CBA) that provided
6 The appellant’s 2018 Board appeal is still pending before the Board under docket
number CH-1221-18-0412-W-1.
7 Even if we were to find that the lack of evidence regarding how similarly situated non-
whistleblowers were treated cut slightly against the agency, we would still find that,
weighing all of the evidence, the agency met its burden.
18
for withholding the award if the employee had received a disciplinary action
during the fiscal year. ID at 13. While we agree that the CBA provides some
legitimate basis for the agency’s decision, the administrative judge overstated the
significance of such evidence because the CBA is discretionary and K.C. thus
exercised her discretion to withhold the appellant’s award. IAF, Tab 11 at 28;
Tab 99 at 127-29. Nonetheless, the record reflects that the appellant did receive a
3-day suspension on October 27, 2016, during the relevant fiscal year.
IAF, Tab 99 at 130. On petition for review, the appellant asserts that the
administrative judge failed to consider all pertinent evidence, including that
which detracts from the conclusion that the agency met its burden, but she fails to
identify any particular evidence. PFR File, Tab 3 at 11-12. She also asserts that
the agency’s evidence is weak because K.C. was not authorized to make such a
decision because the CBA provides that only a first-level supervisor can initiate
or propose disciplinary action. Id. Even if we considered the denial of an award
to be a disciplinary action, the appellant has not cited any particular CBA
provision in support of her assertion. Thus, we find that the strength of the
evidence in support of the agency’s action is strong.
Regarding the second Carr factor, we have found that although K.C. could
have had a motive to retaliate, any such motive was slight given that she was not
the subject of the appellant’s 2018 Board appeal and did not suffer any adverse
consequences as a result of the appellant’s 2017 Board appeal. We acknowledge
that she could have had an institutional motive to retaliate, but evidence
suggesting such a motivation is slight. Thus, in sum, we find that there was some
motive to retaliate.
Regarding the third Carr factor, in her sworn affidavit, K.C. stated that
she does not recall having supervised another employee who was eligible for
an award but who had been suspended in the most recent fiscal year. IAF, Tab 99
at 52. However, relevant comparators are not limited to those under K.C.’s
supervision. See Miller v. Department of Justice , 842 F.3d 1252, 1262 (Fed. Cir.
19
2016) (rejecting the agency’s exceedingly narrow view of Carr factor three,
which is directed at the agency not a particular supervisor). We find that
Carr factor three cannot favor the agency because it did not provide sufficient
evidence concerning whether other similarly situated agency employees who were
not whistleblowers had been denied an award based on prior discipline. Thus, in
the absence of evidence, the third Carr factor at most slightly favors the
appellant.
Weighing the three factors, we nonetheless agree with the administrative
judge that the agency has met its burden because we find that the agency’s
legitimate reason for its decision to deny the appellant’s performance award
outweighs any motive to retaliate and the lack of comparator evidence. Having
found that the agency met its clear and convincing burden, we deny corrective
action regarding this personnel action.
Fiscal year 2018 Performance Appraisal Rating
The appellant contends that in October 2018, J.B. retaliated against her by
issuing her a low rating on her fiscal year 2018 performance appraisal. IAF,
Tab 1 at 10. The record reflects that the appellant received an overall summary
rating of having made a successful contribution and J.B. rated her in the
applicable elements as follows: Interpersonal Skills 3 (out of 5), Participation 3
(out of 5), Demonstrates Job Knowledge 5 (out of 5), and Achieves Business
Results 5 (out of 5), with an average rating of 4 (out of 5). IAF, Tab 6
at 100-103. The administrative judge found that the agency had strong evidence
in support of its decision to rate the appellant a 3 for the interpersonal skills
element. ID at 14-15. The administrative judge noted that J.B.’s review was
balanced, both acknowledging that the appellant had good relations with
claimants but stating that the appellant’s communication with management could
use improvement. ID at 14. The administrative judge found that the email
exchanges between management and the appellant in the record supported the
20
appellant’s supervisor’s decision to rate the appellant a 3 for interpersonal skills,
which the administrative judge deemed to be a fully successful rating. ID at 15.
Thus, we agree that the agency had legitimate reasons for its rating.
On review, the appellant asserts that the administrative judge erred in her
analysis but fails to identify specific errors in the analysis of the relevant
evidence concerning this element. To the extent that she alleges that the
administrative judge failed to consider her claim that she received a lower rating
in the participation element due to reprisal, we address that issue now. PFR File,
Tab 3 at 15. Regarding the participation element, the appellant’s supervisor rated
her as a 3 (out of 5), noting that the appellant was resistant to the shifts in her job
duties and questioned management repeatedly about why or whether it was
necessary for her to do the work. The record supports the appellant’s
supervisor’s rating and conclusion that the appellant resisted management’s
assignments rather than demonstrating teamwork and/or initiative in seeking out
and completing additional work assignments. IAF, Tab 6 at 127-132, 139, 142;
Tab 99 at 166-68; Tab 100 at 13. Thus, we find that the agency had legitimate
reasons for not rating the appellant higher than a successful contributor in this
element. The appellant’s performance ratings of a 3 in the interpersonal skills
and participation elements are also consistent with the ratings she received in
2015, 2016, and 2017, which were issued by J.B. and two different supervisors.8
0412 IAF, Tab 7 at 25-26, Tab 82 at 4-5; 0318 IAF, Tab 12 at 206-07. We find
that the agency presented strong evidence that it had legitimate reasons for the
appellant’s rating.
Regarding Carr factor two, J.B. could have had a slight motive to retaliate
based on the appellant’s 2018 Board appeal in which she was named. However,
8 We acknowledge, however, that, the appellant similarly alleges that her 2017
performance rating from J.B. was retaliatory in her 2018 Board appeal that is addressed
under docket number CH-1221-18-0412-W-1. She also alleges that her 2015
performance evaluation by a different supervisor was retaliatory in her 2017 Board
appeal that is addressed under docket number CH-1221-17-0318-B-3.
21
J.B. does not appear to have suffered any adverse consequences from the appeal.
She could also have possessed an institutional motive to retaliate for the
appellant’s activities, but evidence suggesting such a motivation is slight. Thus,
in sum, we find that there was some motive to retaliate.
Regarding the third Carr factor, although the record contains performance
ratings J.B. issued to other subordinates, IAF, Tab 100 at 61-104, there is no
indication whether any of these employees were whistleblowers. Thus, we cannot
make a meaningful comparison and we find this factor cannot favor the agency.
In the absence of evidence, the third Carr factor at most slightly favors the
appellant. However, we find that the agency’s legitimate reasons for its rating
outweigh any motive to retaliate and lack of comparator evidence. Having found
that the agency met its clear and convincing burden, we deny corrective action
regarding this personnel action.
September 28, 2018 Reprimand
The appellant contends that on September 28, 2018, J.B., with input from
K.C., issued her an official reprimand in reprisal for her prior protected activity.
IAF, Tab 86 at 8. The basis for the reprimand was the appellant’s submission, in
connection with her 2018 Board appeal, of multiple documents containing PII of
Social Security claimants. IAF, Tab 11 at 83-85. Regarding the first Carr factor,
because the reprimand was disciplinary in nature, we consider the strength of the
agency’s evidence in support of the action. See Lu, 122 M.S.P.R. 335, ¶ 7. The
administrative judge found that the agency had strong evidence in support of its
decision to discipline the appellant because the appellant did not dispute that she
disclosed the PII. ID at 11-12. The administrative judge further rejected the
appellant’s argument that the agency’s evidence was weak because her disclosure
was authorized. ID at 12. In particular, the administrative judge found that there
was no need for the appellant to the disclose the names, phone numbers, and
social security numbers of numerous claimants for purposes of her Board appeal
22
and that redacted emails would have served the same purpose to demonstrate the
work the appellant completed. Id. Thus, she concluded that the information was
not relevant or necessary to the appellant’s Board appeal and any routine use
exception permitting disclosure would not apply. Id. The administrative judge
also noted that, notwithstanding the appellant’s argument that the Board is a
secure partner to which employees can send emails with unredacted PII, the
appellant did not email her submission to the Board, but rather submitted paper
copies by hand delivery. Id. On review, the appellant reiterates her arguments
below and disputes generally the administrative judge’s conclusion that the
agency had strong evidence in support of the reprimand,9 PFR File, Tab 3
at 17-20, but she does not meaningfully dispute the administrative judge’s
well-reasoned findings in support of the conclusion that the agency had strong
evidence in support of the reprimand. We agree with the administrative judge’s
conclusion. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997)
(finding no reason to disturb the administrative judge’s findings when
she considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
The administrative judge did not address the second Carr factor as it
pertains to this personnel action. Accordingly, we do so now. As discussed
above, although K.C. could have had a motive to retaliate, any such motive was
slight given she was not the subject of the appellant’s 2018 Board appeal and did
not suffer any adverse consequences due to the appellant’s 2017 Board appeal.
J.B. could have had a motive to retaliate because she was implicated in the
appellant’s 2018 Board appeal, in which she was named, however, J.B. similarly
does not appear to have suffered any adverse consequences. We acknowledge
that both officials could have had an institutional motive to retaliate against the
9 For example, the appellant sets forth various alleged misconduct by management and
alleges that her supervisors committed perjury and failed to follow PII loss regulations.
PFR File, Tab 3 at 17-20.
23
appellant based on her Board appeals against the agency, but evidence suggesting
such a motivation is slight. Thus, in sum, we find that there was some motive to
retaliate. Regarding the third Carr factor, the administrative judge found that the
agency provided evidence that it had taken similar actions against other
employees who had disclosed PII but who were not whistleblowers. ID at 12-13.
On review, the appellant asserts that these were not proper comparators because
they disclosed PII to non-secure sources, as opposed to disclosing it to the Board,
or another Federal agency on the secure partner list. PFR File, Tab 3 at 22.
She also asserts that there is no record evidence to suggest that these three
comparators were not whistleblowers. Id. We find such arguments unavailing.
The record contains evidence that the agency has reprimanded other employees in
the Chicago NHC for a single inadvertent unauthorized disclosure of PII, which
we find sufficiently similar misconduct to the appellant’s misconduct.
IAF, Tab 100 at 52-60. Although it is somewhat unclear whether these particular
employees were whistleblowers, the agency provided sworn statements from the
appellant’s supervisors that a reprimand was consistent with how they disciplined
other non-whistleblowers for failure to safeguard PII. IAF, Tab 99 at 50, 62.
Thus, this factor slightly favors the agency.
Weighing all three Carr factors, we find that the motive to retaliate is
outweighed by the strength of the evidence and the evidence that the agency takes
similar actions against other non-whistleblowers . Having found that the agency
met its clear and convincing burden, we deny corrective action regarding this
personnel action.
The appellant’s claims of bias and recusal are unpersuasive.
On review, the appellant contends that the administrative judge was biased
against her and erred in denying her motions for recusal and to transfer the appeal
to another office. PFR File, Tab 3 at 25-27. The record reflects that the appellant
moved for recusal of the administrative judge because the administrative judge
had presided over her prior 2018 IRA appeal, ruled against the appellant, and
24
made findings with which the appellant disagrees. IAF, Tabs 4, 42. The
appellant further alleged that the administrative judge was biased against her in
the prior appeal as evidenced by the administrative judge’s conduct during
conferences and the hearing, including restricting the appellant’s questioning of
witnesses, disparaging the appellant’s skills, and recording the conferences
against her wishes. IAF, Tab 42. We find that the appellant’s disagreement with
the administrative judge’s prior rulings and findings and her displeasure with the
administrative judge’s exercise of her broad authority to control the course of the
proceedings do not overcome the presumption of honesty and integrity that
accompanies administrative judge’s and do not show that the administrative judge
abused her discretion in denying the motions to recuse herself. See Oliver v.
Department of Transportation , 1 M.S.P.R. 382, 386 (1980) (finding that in
making a claim of bias or prejudice against an administrative judge, a party must
overcome the presumption of honesty and integrity that accompanies
administrative adjudicators); see also Maloney v. Executive Office of the
President, 2022 MSPB 26, ¶ 38 (stating that “[t]he mere fact that the
administrative judge ruled against a party does not establish bias”).
On review, the appellant also asserts that the administrative judge was
biased against her during this appeal as evidenced by her actions in denying
motions filed by the appellant, using a demeaning tone toward the appellant, and
holding the case in abeyance for 8 months. PFR File, Tab 3 at 26. We find that
such assertions are insufficient to establish “a deep-seated favoritism or
antagonism that would make fair judgment impossible.” See Bieber v.
Department of the Army , 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky
v. United States , 510 U.S. 540, 555 (1994)); cf. McCollum v. Department of
Veterans Affairs , 75 M.S.P.R. 449, 462 (1997) (finding that the administrative
judge’s failure to issue an initial decision within the Board’s 120-day standard is
not evidence of bias). Lastly, we find unpersuasive the appellant’s unsupported
assertion that the administrative judge was biased because she is a good friend of
25
the judge in the appellant’s 2017 Board appeal whom the Board found should
have recused himself. PFR File, Tab 3 at 26. The appellant offers conjecture
with no specific facts to suggest that this administrative judge was biased or her
impartiality might reasonably be questioned. See, e.g., Allphin v. United States ,
758 F.3d 1336, 1343-44 (Fed. Cir. 2014) (finding that recusal is required when a
reasonable person knowing all the facts would question the judge’s impartiality).
Based on the foregoing, we affirm the initial decision as modified.
NOTICE OF APPEAL RIGHTS10
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
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.
26
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
27
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
28
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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.
29
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Baker_Mitzi_G_CH-1221-19-0187-W-1__Final_Order.pdf | 2024-01-17 | MITZI G. BAKER v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. CH-1221-19-0187-W-1, January 17, 2024 | CH-1221-19-0187-W-1 | NP |
2,526 | https://www.mspb.gov/decisions/nonprecedential/Ball_Barbara_CH-3443-19-0077-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARBARA E. BALL,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
CH-3443-19-0077-I-1
DATE: January 17, 2024
THIS ORDER IS NONPRECEDENTIAL1
Barbara E. Ball , Whiting, Indiana, pro se.
Deepa Rajkarne , Esquire, Chicago, Illinois, 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. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings 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). For
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is a non-preference eligible GS-11 Claims Specialist for the
agency. Initial Appeal File (IAF), Tab 1 at 3. On November 8, 2018, she filed
this Board appeal, indicating that she was challenging a suitability determination
and a “harassment investigation,” stating that she was dissatisfied with the
agency’s investigation into her harassment allegations. Id. at 4-16. The appellant
subsequently requested a hearing. IAF, Tab 5 at 2.
The administrative judge issued an acknowledgment order, informing the
appellant that the Board might lack jurisdiction over her appeal and notifying her
of the Board’s jurisdiction under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA), the Veterans Employment
Opportunities Act of 1998, and the Whistleblower Protection Act as amended.
IAF, Tab 2. The appellant responded, asserting that her appeal concerned an
employment practice connected with a nonselection for promotion, a suitability
action, a decision concerning her benefits, discrimination based on sex, national
origin, and disability, whistleblower retaliation, and “involuntary time off in July
of 2018.” IAF, Tab 10 at 5-7. The agency moved to dismiss the appeal for lack
of jurisdiction. IAF, Tab 12.2
After the record on jurisdiction closed, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction without a hearing.
IAF, Tab 16, Initial Decision (ID). He found that the agency’s conduct of the
harassment investigation did not constitute an “adverse action” within the
meaning of 5 U.S.C. § 7512, that there was no indication that the appellant had
been subjected to a suitability action, and that there was no indication that the
appellant’s nonselection for promotion was the result of an employment practice
administered by the Office of Personnel Management (OPM). ID at 3-5. The
administrative judge further found that the appellant’s allegations of
discrimination under Title VII and the Americans with Disabilities Act were
insufficient to confer jurisdiction on the Board, and that absent an otherwise
appealable action, the Board lacked jurisdiction over the appellant’s
whistleblower claim because she had not exhausted her administrative remedies
with the Office of Special Counsel (OSC). ID at 5-6.
The appellant has filed a petition for review, disputing the administrative
judge’s jurisdictional analysis, particularly with regard to her claims of hostile
work environment, involuntary leave, and retaliation. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition to the petition for
review, and the appellant has filed a reply to the agency’s response. PFR File,
Tabs 5-7.
ANALYSIS
We agree with the administrative judge’s analysis of those claims that he
addressed. Regarding the appellant’s allegations concerning an employment
practice, we agree with the administrative judge that the appellant has not shown
that this appeal involves an “employment practice” under 5 C.F.R. § 300.103 that
OPM is involved in administering. ID at 4; see generally Mapstone v.
Department of the Interior , 110 M.S.P.R. 122, ¶ 7 (2008) (setting forth the
jurisdictional standard for an employment practices appeal). We also agree with3
the administrative judge that the appellant has not shown that she has been
subjected to a “suitability action” under 5 C.F.R. § 731.203(a). ID at 4-5. We
further agree that the Board lacks jurisdiction over the appellant’s claims of
discrimination absent an otherwise appealable action. See Wren v. Department of
the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982) .
The appellant has not challenged these findings on petition for review, and we
find no reason to disturb them.
On petition for review, the appellant challenges the administrative judge’s
finding that the Board lacks jurisdiction over her whistleblower retaliation claim.
PFR File, Tab 1 at 1, Tab 7 at 3-4. However, as the administrative judge
correctly found, the appellant’s whistleblower allegations are insufficient to
confer Board jurisdiction over her appeal because she has not exhausted
her administrative remedies with OSC. ID at 5-6; IAF, Tab 1 at 5; see
Bradley v. Department of Homeland Security , 123 M.S.P.R. 547, ¶ 6 (2016);
Calixto v. Department of Defense , 120 M.S.P.R. 557, ¶ 21 (2014) (dismissing the
appellant’s whistleblower claim for lack of jurisdiction because she failed to
exhaust her administrative remedies with OSC). The appellant also asserts a
hostile work environment claim and reasserts her claim of retaliation for reporting
harassment. PFR File, Tab 1 at 3-4. However, outside the context of
USERRA and IRA appeals, the Board lacks jurisdiction over retaliation and
hostile work environment claims absent an otherwise appealable action.
Banks v. Merit Systems Protection Board , 854 F.3d 1360, 1363-64 (Fed. Cir.
2017).
Nevertheless, the appellant is correct that the administrative judge failed to
address her claim that she took “involuntary time off in July of 2018 due to
harassment occurring in her workplace.”2 IAF, Tab 10 at 5; PFR File, Tab 1 at 3.
This is a constructive suspension claim and may be within the Board’s chapter 75
2 On petition for review, the appellant identifies July 2017 as the relevant time period
for her constructive suspension claim. PFR File, Tab 1 at 1-3. The appellant will have
the opportunity to resolve this discrepancy on remand.4
jurisdiction. See Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 8 (2013)
(finding that the Board has jurisdiction over an employee’s absence as a
constructive suspension claim if he lacked a meaningful choice in the matter due
to the agency’s wrongful actions). If an appellant makes a nonfrivolous
allegation that she lacked a meaningful choice in taking leave, that it was the
agency’s wrongful actions that deprived her of that choice, and that the
jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise met, she is
entitled to a jurisdictional hearing. See Thomas v. Department of the Navy ,
123 M.S.P.R. 628, ¶ 11 (2016); Bean, 120 M.S.P.R. 397, ¶ 8. We agree with the
agency that the appellant’s vague and conclusory allegations below and on
review do not constitute specific allegations of fact that, if proven, would show
that the agency constructively suspended her for more than 14 days. IAF,
Tab 10 at 5; PFR File, Tab 1 at 3, Tab 5 at 9-10, Tab 7 at 2-4; see
Collins v. Defense Logistics Agency , 55 M.S.P.R. 185, 190 (1992), modified on
other grounds by Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 (1994);
Dodson v. U.S. Postal Service , 67 M.S.P.R. 84, 87 (1995). However, before an
administrative judge may dismiss an appeal for lack of jurisdiction without a
hearing, he must provide the appellant with explicit notice of how to establish
Board jurisdiction over her appeal. Burgess v. Merit Systems Protection Board ,
758 F.2d 641, 643-44 (Fed. Cir. 1985). In this case, we find that the appellant’s
claim of “involuntary time off” was sufficiently specific that the administrative
judge should have notified her of how to prove jurisdiction over a constructive
suspension appeal, including when an appellant alleges that her absence was the
result of intolerable working conditions. See Allen v. U.S. Postal Service ,
73 M.S.P.R. 73, 76 (1997); see also Bean, 120 M.S.P.R. 397, ¶ 8 (setting forth
the jurisdictional standard for constructive suspension appeals in general);
Peoples v. Department of the Navy , 83 M.S.P.R. 216, ¶¶ 5-9 (1999) (setting forth
the jurisdictional standard for constructive suspension appeals based on5
intolerable working conditions). Because the appellant did not receive any such
notice, we remand this appeal for further adjudication.3 See id. at 77.
There would appear to be a question as to the timeliness of this appeal. To
the extent that the appellant is claiming a constructive suspension sometime in
July 2017 or July 2018, her November 8, 2018 Board appeal would be untimely
under 5 U.S.C. § 1201.22(b)(1). However, it would also appear that the issues of
timeliness and jurisdiction are intertwined. See Edge v. U.S. Postal Service ,
113 M.S.P.R. 692, ¶¶ 9-12 (2010). The administrative judge should address the
timeliness issue in light of the Board’s guidance in Edge and similar cases.
We also observe that the appellant filed a petition for review of the initial
decision with the Equal Employment Opportunity Commission (EEOC) before
she filed her petition for review with the Board. PFR File, Tab 6. Because the
administrative judge dismissed the Board appeal for lack of jurisdiction, the
EEOC remanded the case to the agency to consider the appellant’s discrimination
claims in the first instance. PFR File, Tab 6 at 1-2; see 29 C.F.R. § 1614.302(b).
However, the appellant’s petition to the EEOC was premature because the
initial decision had not yet become final at the time she filed it. See
5 U.S.C. § 7702(a)(1), (b)(1); 5 C.F.R. § 1201.157; 29 C.F.R. § 1614.303(a), (c).
Indeed, the EEOC petition is still not ripe because the appellant’s timely petition
for review with the Board prevented the initial decision from becoming final, and
the appeal is now being remanded to the administrative judge for further
adjudication. See 5 C.F.R. § 1201.113(a)-(c). In sum, the appellant elected to
raise her discrimination claims with the Board in the context of a
3 An administrative judge’s failure to provide an appellant with proper Burgess notice
can be cured if the agency’s pleadings contain the notice that was lacking in the
acknowledgment order or the initial decision puts the appellant on notice of what she
must do to establish jurisdiction, thus affording her the opportunity to meet her
jurisdictional burden on review. Easterling v. U.S. Postal Service , 110 M.S.P.R. 41,
¶ 11 (2008). In this case, neither the agency’s filings nor the initial decision were
adequate to apprise the appellant of her jurisdictional burden in a constructive
suspension appeal. See Brown v. Department of Defense , 109 M.S.P.R. 493, ¶ 16
(2008).6
constructive suspension appeal rather than bring an equal employment
opportunity complaint under 29 C.F.R. § 1614.106. See 5 C.F.R.§ 1201.154(a);
29 C.F.R. § 1614.302(b). The Board is still in the process of determining whether
it has jurisdiction over the appellant’s discrimination claims in the context of a
mixed-case constructive suspension appeal, and neither the appellant’s premature
petition to the EEOC nor any equal employment opportunity proceedings that the
agency may conduct pursuant to the EEOC’s remand order will have any effect on
that determination.
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order. The
administrative judge shall notify the appellant of her jurisdictional burden in a
constructive suspension appeal and afford her a full and fair opportunity to prove
jurisdiction, including holding a jurisdictional hearing if warranted. If the
administrative judge finds it necessary to reach the timeliness issue, he shall have
the discretion to address the issue as he sees fit, consistent with the Board’s case
law.4
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
4 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.7 | Ball_Barbara_CH-3443-19-0077-I-1__Remand_Order.pdf | 2024-01-17 | BARBARA E. BALL v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. CH-3443-19-0077-I-1, January 17, 2024 | CH-3443-19-0077-I-1 | NP |
2,527 | https://www.mspb.gov/decisions/nonprecedential/McCarthy_Eileen_E_PH-1221-16-0137-W-1__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EILEEN ERIN MCCARTHY,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-1221-16-0137-W-1
DATE: January 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eileen Erin McCarthy , Marion, Massachusetts, pro se.
Joanna Tate , Esquire, Dallas, Texas, for the agency.
Susan D. Beller , Boston, Massachusetts, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in this individual right of action appeal.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 concerning the
administrative judge’s basis for finding the appellant’s failure to prove that she
made a protected disclosure related to the agency’s lack of quality assurance
(QA), we AFFIRM the initial decision.
The administrative judge characterized the appellant’s disclosure
concerning QA as alleging that on April 2, 2015, during a meeting with the
Center Director, she informed him that the Boston Disability Processing Unit
(DPU) had not implemented the Quality Review Process within the timeframes
set forth in agency guidelines. Initial Appeal File (IAF), Tab 56, Initial Decision
(ID) at 12. The administrative judge, however, credited testimony of the Center
Director that he did not recall the appellant ever discussing the issue with him.
ID at 19.
On review, the appellant contends that the administrative judge’s
credibility findings are incomplete. Petition for Review (PFR) File, Tab 8 at 22,
27. We agree. To resolve credibility issues, an administrative judge must
identify the factual questions in dispute, summarize the evidence on each disputed
question, state which version he believes, and explain in detail why he found the
chosen version more credible, considering such factors as: (1) the witness’s
opportunity and capacity to observe the event or act in question; (2) the witness’s2
character; (3) any prior inconsistent statement by the witness; (4) a witness’s
bias, or lack of bias; (5) the contradiction of the witness’s version of events by
other evidence or its consistency with other evidence; (6) the inherent
improbability of the witness’s version of events; and (7) the witness’s demeanor.
Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987). The Board
normally defers to an administrative judge’s credibility findings when they are
based on demeanor. See Haebe v. Department of Justice , 288 F.3d 1288, 1300 -01
(Fed. Cir. 2002). Here, however, the administrative judge’s credibility findings
are cursory and incomplete to the extent they fail to explain why the
administrative judge found the Center Director’s testimony to be more credible
than the appellant’s. Additionally, because the appellant testified by telephone,
the administrative judge did not have an opportunity to observe her demeanor
during her testimony. Thus, we find that the administrative judge’s credibility
findings are not entitled to deference. See, e.g., Redschlag v. Department of the
Army, 89 M.S.P.R. 589, ¶ 13 (2001).
Nonetheless, we have reviewed the record and find that the appellant failed
to prove by preponderant evidence that she made a protected disclosure.2 The
appellant’s testimony concerning this issue consisted of a bare assertion that she
reported the “lack of [QA] and lack of communication between examiners and
consultants” during an April 2nd meeting with the Center Director. IAF, Tab 54,
Hearing Compact Disc (Hearing Day 3) (testimony of the appellant). She also
testified that, during a performance review, she disclosed to her supervisor her
“concerns related to the lack of [QA].” Id. In her written testimony, which was
incorporated as part of her oral testimony, she indicated that, during the meeting
with the Center Director, she “brought up [her] concerns with the lack of QA.”
IAF, Tab 52 at 5. In other pleadings, she references that she “raised the issue that
2 Because we do not rely on the administrative judge’s credibility findings, we need not
address the appellant’s argument that the administrative judge improperly found the
Center Director to be credible because his testimony concerning the reasons for her
termination was not credible. PFR File, Tab 8 at 25-27.3
making determinations without QA oversight meant that all DPU cases never
received a second look.” IAF, Tab 9 at 5. However, in both her testimony and
pleadings below, she fails to specify any additional details concerning what she
told the Center Director or her supervisor or how or why the lack of QA
amounted to any of the categories of wrongdoing specified in 5 U.S.C.
§ 2302(b)(8). Accordingly, we find that the appellant’s vague and conclusory
claims are insufficient to establish that she made a protected disclosure. See, e.g.,
Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶¶ 9-12 (2015) (finding
that general philosophical or policy disagreements with agency decision or
actions do not constitute protected disclosures unless there is a reasonable belief
that the disclosure evidences one of the categories of wrongdoing set forth in
5 U.S.C. § 2302(b)(8)(A)); Linder v. Department of Justice , 122 M.S.P.R. 14,
¶ 14 (2014) (stating that a disclosure must be specific and detailed, not a vague
allegation of wrongdoing). Accordingly, we affirm the initial decision as
modified herein.3
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
3 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice 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
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.9 | McCarthy_Eileen_E_PH-1221-16-0137-W-1__Final Order.pdf | 2024-01-17 | EILEEN ERIN MCCARTHY v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-1221-16-0137-W-1, January 17, 2024 | PH-1221-16-0137-W-1 | NP |
2,528 | https://www.mspb.gov/decisions/nonprecedential/Gilmore_Neenie_PH-0752-20-0388-C-1_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NEENIE GILMORE,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
PH-0752-20-0388-C-1
DATE: January 12, 2024
THIS ORDER IS NONPRECEDENTIAL1
R
alph B. Pinskey , Esquire, Harrisburg, Pennsylvania, for the appellant.
Karen L. Saxton , Esquire, New Cumberland, Pennsylvania, 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 the appellant’s petition for enforcement of the underlying
initial decision mitigating her removal to a 15-day suspension. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
compliance initial decision, and find the agency in partial noncompliance with the
initial decision.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The agency’s Defense Logistics Agency (DLA) employs the appellant as a
WG-5 Distribution Process Worker. Gilmore v. Department of Defense ,
MSPB Docket No. PH-0752-20-0388-I-1, Initial Appeal File (IAF), Tab 4 at 12.
In late March and early April 2020, the appellant made remarks at her place of
work, the DLA’s Defense Distribution Center in New Cumberland, Pennsylvania,
suggesting she had COVID-19 and could spread the virus to others. IAF,
Tab 5 at 14-15, Tab 35, Initial Decision (ID) at 6-9. At the time she made these
statements, she had neither tested nor sought medical treatment for the virus.
IAF, Tab 5 at 14, 27. On April 14, 2020, the Commanding Colonel for the New
Cumberland Defense Distribution Center issued a bar order denying the appellant
access based on her COVID-related statements. Gilmore v. Department of
Defense, MSPB Docket No. PH-0752-20-0388-C-1, Compliance File (CF),
Tab 1 at 26-27. According to the appellant, as a result of this bar order, the
agency placed her on administrative leave on the same day. CF, Tab 22 at 3.
The agency has not disputed this assertion. The agency removed the appellant
from her position based on the same comments, effective June 27, 2020. Id.
The appellant filed an appeal of her removal. IAF, Tab 1 at 4.
The administrative judge issued an initial decision finding the agency proved its
charge but that the maximum reasonable penalty was a 15-day suspension.
ID at 6-10. He ordered the agency to cancel the removal and substitute a 15-day
unpaid suspension in its place, and to pay the appellant back pay and benefits.
ID at 10-11. Because neither party filed a petition for review, the initial decision
became the final order of the Board on April 20, 2021. ID at 13; see 5 C.F.R.
§ 1201.113(a)-(c) (providing that an initial decision generally becomes the
Board’s final decision if neither party files a timely petition for review).
Following the initial decision, on May 10, 2021, the agency placed the
appellant in the same position, but reassigned her to a different facility due to the
bar order. CF, Tab 4 at 15. Specifically, it reassigned her to its Mechanicsburg2
Installation, located in Mechanicsburg, Pennsylvania. Id. The agency asserted,
and the appellant did not dispute below and has not disputed on review, that the
two facilities are within 10 miles of each other. Id. at 7. The base pay for the two
facilities is the same, but the locality pay for the Mechanicsburg Installation is
lower than that for the New Cumberland Defense Distribution Center. CF,
Tab 1 at 34. In addition, the union that represents employees in the appellant’s
position differs between the two facilities. Id.
The appellant filed the instant petition for enforcement arguing that, for a
variety of reasons, her reassignment to the Mechanicsburg Installation was
improper and that she was entitled to back pay representing the difference in
locality pay between the two facilities. CF, Tab 1 at 5, Tab 22 at 2, 4-8, 10-11.
She argued, in the alternative, that she should have received the promotion
she anticipated before her removal. CF, Tab 1 at 22 at 3, 11-12.
The administrative judge found that the Board lacks jurisdiction over the
bar order, the appellant’s reassignment to the Mechanicsburg Installation, and the
difference in locality pay. CF, Tab 25, Compliance Initial Decision (CID) at 3-4.
He considered the appellant’s claim that the base bar was a constructive
suspension, but concluded that the appellant untimely raised this claim by not
raising it in her underlying removal appeal. CID at 4. Finally, the administrative
judge found that the appellant’s claim that she was about to receive a promotion
prior to her removal was not a basis for relief because it was “hardly a done
deal.” CID at 5.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. She only appears to contest the agency’s continued failure to return
her to her position at the New Cumberland Defense Distribution Center.2 Id.
She asserts that the base bar has since been lifted but she still has not been
2 The appellant does not dispute the administrative judge’s finding that she was not
entitled to a promotion. The Board normally will consider only issues raised on review.
5 C.F.R. § 1201.115. We decline to revisit the promotion issue here. 3
returned to her prior duty station. Id. at 5-6. The agency has responded to the
appellant’s petition for review, and the appellant has replied. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction to determine whether the appellant was returned to the
status quo ante when reassigned immediately after reinstatement.
The administrative judge found that the Board lacks jurisdiction over the
base bar, and thus the appellant’s reassignment to the Mechanicsburg Installation
and the appellant’s assertion that the base bar violated agency policy. CID at 3-4.
The appellant disputes this finding on review, arguing that the agency must lift
the base bar in order to provide her with status quo ante relief because, as a result
of the reassignment, she receives lower locality pay and the union that represents
her has changed. PFR File, Tab 1 at 2-6. We find that the Board has jurisdiction
over the appellant’s reassignment to the Mechanicsburg Installation in the context
of this compliance appeal.
As the administrative judge correctly observed, the Board does not have
jurisdiction over the appellant’s reassignment that results in a lower rate of
locality pay as an otherwise appealable action. The Board generally has
jurisdiction under chapter 75 over an employee’s reduction in pay. Zajac v.
Department of Agriculture , 112 M.S.P.R. 160, ¶ 9 (2009). However,
such jurisdiction does not extend to reductions in locality pay that result, as here,
from an assignment to a new locality pay area. Id., ¶¶ 11-15 (2009).
Further, we find that the Board lacks jurisdiction over the appellant’s claim
that the base order was a constructive suspension. CID at 4; IAF, Tab 22 at 4-5.
The administrative judge concluded that the appellant untimely raised this claim.
However, in constructive adverse action appeals, in which an appellant alleges
that her leave, resignation, or retirement was involuntary, the dispositive issue
before the Board is jurisdictional. Delorme v. Department of the Interior ,
124 M.S.P.R. 123, ¶ 18 (2017). Therefore, we do not reach the timeliness issue.
If the base bar required the appellant to use sick leave or annual leave, or be in a4
leave without pay status, for a period exceeding 14 days, she would have been
subjected to a constructive suspension appealable to the Board. LaMell v. Armed
Forces Retirement Home , 104 M.S.P.R. 413, ¶ 9 (2007). However, placement on
paid administrative leave is not appealable. Id., ¶ 8. Here, according to the
appellant, the agency placed her on paid administrative leave as a result of the bar
order. CF, Tab 22 at 3. She indicated that the administrative leave only ended
when the agency effectuated her removal. Id. at 4. Therefore, the Board is
without jurisdiction to review the bar order as an alleged constructive suspension.
However, the Board has jurisdiction in this compliance matter over whether
the appellant has received status quo ante relief. Kerr v. National Endowment for
the Arts, 726 F.2d 730, 732-33 (Fed. Cir. 1984). Status quo ante relief places the
appellant, as nearly as possible, in the situation she would have been in had the
wrongful personnel action not occurred. Gorny v. Department of the Interior ,
115 M.S.P.R. 520, ¶ 5 (2011) (citing, along with another case, Kerr, 726 F.2d
at 733). Analogous cases make clear that the appellant did not receive such relief
here. For example, t he Board found that returning an appellant to a different
floor, resulting in her physical separation and isolation from coworkers who
performed the same duties, was not status quo ante relief. Id., ¶¶ 3, 9, 12, 14.
Similarly, it determined that reassignment to a different shift that resulted in the
loss of a pay differential did not meet the status quo ante standard. Clemons v.
Smithsonian Institution , 50 M.S.P.R. 74, 78 (1991). Thus, we conclude that
returning the appellant to a different facility with different union representation
and locality pay was not status quo ante relief.
The bar order was not a compelling reason, or overriding interest, for not
returning the appellant to her prior duty station.
If an agency does not return an employee to her former position, it must
show, as relevant here, that it has a strong overriding interest or compelling
reason requiring reassignment to a different position. Gorny, 115 M.S.P.R. 520,
¶ 6. Below, the administrative judge found that the Board lacks jurisdiction over5
the merits of a bar order, suggesting it was a security clearance determination.
CID at 3-4 (citing, among other cases, Department of the Navy v. Egan , 484 U.S.
518, 525-34 (1998) (holding that the Board lacks jurisdiction to review and a
security clearance determination). He also found that due to the base bar,
the agency was not obligated to return the appellant to her prior duty station.
CID at 4. The appellant asserts on review, and the agency concedes, that the base
bar has since been lifted and she still has not returned to her prior duty station.
PFR File, Tab 1 at 5-6, Tab 3 at 6. The agency responds that the administrative
judge properly determined that the Board lacks jurisdiction over the bar order.
PFR File, Tab 3 at 5, 7. We are not persuaded.
The agency defines a security clearance as a “determination . . . that
an individual is eligible for access to national security information.” Department
of Defense (DOD) Manual 5200.02, Procedures for the DOD Personnel Security
Program at 84 (Oct. 29, 2020), https://www.esd.whs.mil/Portals/54/Documents/
DD/issuances/dodm/520002m.PDF; see Rogers v. Department of Defense ,
122 M.S.P.R. 671, ¶ 2 n.1 (2015) (citing a prior version of the agency’s manual
for a similar definition). According to the agency, such information “has been
determined, pursuant to [Executive Order] 13526, to require protection against
unauthorized disclosure.” DOD Manual 5200.02, at 82. The cited Executive
Order is also concerned with the protection of information. Exec. Order
No. 5,366, 75 Fed. Reg. 707, 727 (Dec. 29, 2009) (defining “[c]lassified national
security information” as information that “has been determined . . . to require
protection against unauthorized disclosure.”); Exec. Order No. 13,526, 75 Fed.
Reg. 1,013 (Dec. 29, 2009) (correcting the date of the President’s signature).
There is nothing in these materials that discusses access to facilities.
The bar order at issue here concerns the appellant’s ability to enter the New
Cumberland Defense Distribution Center. CF, Tab 1 at 26. In issuing the bar,
the Commanding Colonel relied on 50 U.S.C. § 797. Id. That statute provides
that it is a misdemeanor to violate agency orders regarding, as relevant here,6
entering physical locations such as forts and bases. 50 U.S.C. § 797(a)(1), (2)
(A), (3)(A), (4)(A), (C)-(D). It does not address access to information.
Therefore, we find that the bar order was not a security clearance determination,
and the Board does not lack jurisdiction over it on that basis. To the extent that
the agency relies on the initial decision issued in another case to argue the
contrary position, we are not persuaded. PFR File, Tab 3 at 5 (citing Root v.
Department of the Army , MSPB Docket No. SF-0752-20-0172-I-1, Initial
Decision at 6-7 (Aug. 19, 2020)). Initial decisions are of no precedential value,
and cannot be cited or relied upon as controlling authority. Fitzgerald v.
Department of the Air Force , 108 M.S.P.R. 620, ¶ 15 (2008).
The Board has previously examined whether a bar order serves as a
compelling reason for not returning the appellant to her prior duty station.
Galliart v. Department of the Treasury , 84 M.S.P.R. 15, ¶ 16 (1999), aff’d per
curiam, 232 F.3d 911, 2 (Fed. Cir. 2000) (Table). In Galliart, the agency was
located on a Naval Air Station. Id., ¶¶ 2, 12. The commander of that base, rather
than the employing agency, barred the appellant’s access to the base.
Id., ¶¶ 12-15. The Board found that the agency established that the appellant’s
actions and the resulting barring order constituted overriding circumstances for
not restoring him to his former position after his removal was mitigated to a
demotion. Id., ¶ 16. In so finding, it reasoned that the bar order was issued by
the agency’s host organization and was based on actions unrelated to the
cancelled removal at issue. Id., ¶¶ 12, 15.
This case differs from Galliart as to both agency control over and the
reasons for the bar order. Further, these distinctions are material to the outcome
here. An agency cannot refuse to comply with a Board reinstatement order based
on reasons that were rejected by the Board in the decision reversing the action.
Doe v. Department of Justice , 95 M.S.P.R. 198, ¶ 14 (2003). The record
establishes that the New Cumberland facility Commanding Colonel barred the
appellant from reentry before she was removed based on her making “several7
threatening statements to installation employees concerning intentionally
infecting personnel with the COVID-19 virus” between March 30 and
April 6, 2020. CF, Tab 1 at 26-27. The agency subsequently removed her
for conduct unbecoming a Federal employee based on the same statements.
IAF, Tab 4 at 14-15, Tab 5 at 14-15.
In mitigating the removal to a 15-day suspension, the administrative judge
found that the appellant made four comments about COVID, as alleged by the
agency. ID at 6-9. However, he determined that the agency failed to prove that
the appellant intended two of her comments to be perceived as threats, and they
were not perceived as such by the listeners. ID at 6-8. He found that the agency
proved that the remaining two comments were unbecoming a Federal employee.
ID at 8-9. He concluded that the maximum reasonable penalty for these two
comments was a 15-day suspension, reasoning in part that he had determined that
the agency had not proven its most serious allegations. ID at 9-10. In essence,
he rejected that a penalty greater than a 15-day suspension was warranted.
The agency effectively increased the penalty based on the same alleged
misconduct by reassigning the appellant to a different facility. Cf. Wilson v.
Department of Veterans Affairs , 74 M.S.P.R. 65, 69 n.2 (1997) (stating that in
ruling on the penalty in a demotion appeal, the administrative judge was required
to consider the appropriateness of an appellant’s reassignment, as well as the
demotion, if the reassignment was clearly a part of the penalty imposed).
Further, the New Cumberland Defense Distribution Center is a DLA
facility and the appellant is employed by DLA. CF, Tab 1 at 17-20; see Defense
Logistics Agency, DLA Distribution Susquehanna, Pa., https://www.dla.mil/
Distribution/Locations/Susquehanna/ (reflecting that the New Cumberland
Defense Distribution Center is a DLA facility) (last visited Jan. 12, 2024) .
Although it has now restored the appellant’s access to the base, it still has not
returned her to her prior duty station. We find that, by failing to immediately lift
the bar order, and by continuing to have the appellant work at the Mechanicsburg8
Installation, the agency is in violation of the initial decision cancelling the
appellant’s removal. ID at 10.3
As a result of this order, the agency must pay additional back pay.
The agency asserted below that it fully paid the appellant back pay on
October 1, 2021. CF, Tab 21 at 6-7. The administrative judge did not address the
back pay issue in the initial decision. However, he stated in a status conference
summary that “[t]he back pay issue is largely resolved.” CF, Tab 19.
The appellant does not argue on review that she was not paid back pay or interest
on back pay, or that the agency improperly calculated any payment. Nonetheless,
in light of our finding, above, that the agency was required to immediately lift the
bar order and return the appellant to her prior duty station, we revisit the back pay
issue here.
The appellant argued below that she was entitled to back pay representing
the difference in pay between the two facilities. CF, Tab 22 at 2. The agency
argues on review that it was justified in failing to lift the base order unilaterally
immediately upon reinstating the appellant. PFR File, Tab 3 at 6. It reasons that
it was not required to lift the bar until the appellant filed an appeal of the bar
order within the DLA, consistent with the procedures set forth in the order.
Id. at 6; CF, Tab 1 at 26. The administrative judge agreed with this reasoning.
CID at 4. We do not.
The Board has a broad authority to order corrective action in cases of
noncompliance pursuant to any matter within its jurisdiction. Lua v. Office of
Personnel Management , 102 M.S.P.R. 108, ¶ 8 (2006) (citations omitted). This
3 The appellant argues in her reply that her reassignment to the Mechanicsburg
Installation was the result of harmful error. PFR File, Tab 4 at 8-10. However, she did
not raise this argument in her petition for review and the agency did not address the
issue in its response. A reply is limited to the factual and legal issues raised by another
party in the response to the petition for review. Lin v. Department of the Air Force ,
2023 MSPB 2, ¶ 8 n.4; 5 C.F.R. § 1201.114(a)(4). It may not raise new allegations of
error. Lin, 2023 MSPB 2, ¶ 8 n.4; 5 C.F.R. § 1201.114(a)(4). Accordingly, we will not
consider the appellant’s harmful error argument here.9
authority extends to ordering the agency to restore to the appellant all of the
essential privileges of her previous position. Black v. Department of Justice ,
85 M.S.P.R. 650, ¶¶ 6-8 (2000). The agency has the burden of proving its
compliance with a Board final decision with the support of relevant, material,
and credible evidence. Rittgers v. Department of the Army , 123 M.S.P.R. 31, ¶ 11
(2015). Here, the agency does not claim or provide evidence that the appellant’s
request to lift the bar order is a necessary prerequisite to lifting it. CF, Tab 4
at 7; PFR File, Tab 3 at 5-6. Nor has it explained why it did not return the
appellant to her prior duty station, which is a privilege of her employment.
In the bar order, the agency cited 50 U.S.C. § 797, as the basis for its
authority. CF, Tab 1 at 26. However, that provision does not set forth
procedures for lifting a bar order. At most, it reflects that a military commander
may promulgate an order concerning the security of agency property, and that
violating such an order is a misdemeanor. 50 U.S.C. § 797(a)(1), (2)(A), (3), (4)
(A), (D). Because the agency has not provided any evidence or legal authority
explaining its position, we find that it did not meet its burden to justify its
noncompliance with the order to cancel the removal. We acknowledge that the
agency has partially complied with this order because it is undisputed that it paid
some of the back pay owed to the appellant. Nonetheless, it must now pay the
amount representing the difference between what the appellant was paid for the
back pay period and what she would have made had she been properly restored to
the New Cumberland Defense Distribution Center.
Accordingly, we order the agency to return the appellant to her position at
the New Cumberland Defense Distribution Center and to pay appropriate back
pay, interest on back pay, and and/other benefits.
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 as described herein.10
This evidence shall adhere to the requirements set forth in 5 C.F.R. § 1201.183(a)
(6)(i), including submission of evidence and a narrative statement of compliance.
The agency must serve all parties with copies of its submissions.
The agency’s submission should be filed under the new docket number
assigned to the compliance referral matter, PH-0752-20-0388-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 MSPB’s e-Appeal site
(https://e-appeal.mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201.14.
The 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 she is satisfied with the agency’s actions and dismiss the
petition for enforcement.
The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183(c). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C. § 1204(e)
(2)(A).
This Order does not constitute a final order and is therefore not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s final resolution of11
the remaining issues in this petition for enforcement, a final order shall be issued
which shall be subject to judicial review.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.12 | Gilmore_Neenie_PH-0752-20-0388-C-1_Order.pdf | 2024-01-12 | NEENIE GILMORE v. DEPARTMENT OF DEFENSE, MSPB Docket No. PH-0752-20-0388-C-1, January 12, 2024 | PH-0752-20-0388-C-1 | NP |
2,529 | https://www.mspb.gov/decisions/nonprecedential/Firmin_David_CH-0752-19-0035-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID FIRMIN,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
CH-0752-19-0035-I-1
DATE: January 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
ulius Carter , Esquire, Dayton, Ohio, for the appellant.
Alana Kitchen and William A. McClain, II , Wright-Patterson AFB, Ohio,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary resignation appeal for lack of jurisdiction. On petition
for review, the appellant argues that the agency misled him into resigning in the
three following ways: (1) by advising him that any negative information in his
official personnel file would be expunged; (2) by telling him he would be
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
provided with an in-person meeting with the deciding official; and (3) that he was
entitled to the evidence that supported the proposed removal. Petition for Review
File, Tab 1 at 2-5. 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).
An employee-initiated action, such as a resignation, is presumed to be
voluntary, and thus outside the Board’s jurisdiction, unless the employee
establishes that his resignation was the result of agency misrepresentation,
coercion, or duress. Salazar v. Department of Army , 115 M.S.P.R. 296, ¶ 9
(2010). Where an appellant claims that his decision to retire was the result of
agency misinformation, he must show the following: (1) that the agency made
misleading statements; and (2) that he reasonably relied on the misinformation to
his detriment. Id. If an appellant makes nonfrivolous allegations of jurisdiction,
i.e., allegations that, if proven, could establish the Board’s jurisdiction, he is
entitled to a hearing at which he must prove jurisdiction by a preponderance of
the evidence. Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501, ¶ 18
(2007); 5 C.F.R. § 1201.4(s). 2
Here, the appellant’s unsupported and vague arguments on review do
not constitute nonfrivolous allegations of Board jurisdiction. See Briscoe v.
Department of Veterans Affairs , 55 F.3d 1571, 1573-74 (Fed. Cir. 1995) (finding
that bald allegations standing alone do not meet the nonfrivolous allegation
standard); see also Coleman v. Department of the Army , 106 M.S.P.R. 436, ¶ 9
(2007) (stating that pro forma allegations are insufficient to satisfy the
nonfrivolous standard). Thus, the administrative judge properly dismissed the
appeal for lack of jurisdiction without holding a hearing.
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.
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
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
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Firmin_David_CH-0752-19-0035-I-1_Final_Order.pdf | 2024-01-12 | DAVID FIRMIN v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. CH-0752-19-0035-I-1, January 12, 2024 | CH-0752-19-0035-I-1 | NP |
2,530 | https://www.mspb.gov/decisions/nonprecedential/Chen_Wei_PH-0714-20-0353-M-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WEI CHEN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0714-20-0353-M-1
DATE: January 12, 2024
THIS ORDER IS NONPRECEDENTIAL1
Marc J. Levy , Sudbury, Massachusetts, for the appellant.
Jean M. Rummel , Bedford, Massachusetts, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal after finding that the agency violated his due
process rights. For the reasons discussed below, we GRANT the agency’s
petition for review, VACATE the initial decision, and REMAND the appeal to 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).
Northeastern Regional Office for further adjudication in accordance with this
Remand Order.
BACKGROUND
The appellant was employed as a GS-12 Contract Specialist with the
Department of Veterans Affairs (DVA). Chen v. Department of Veterans Affairs ,
MSPB Docket No. PH-0714-20-0353-I-1, Initial Appeal File (IAF), Tab 5 at 25.
Effective April 22, 2019, the agency removed him from Federal service based on
the charge of misrepresentation of start time. Id. at 26-28. The decision notice
indicated that the removal action was being taken under the Department of
Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (DVA
Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869 -73
(codified as amended at 38 U.S.C. § 714). Id. at 26.
Thereafter, the appellant filed an appeal with the Board challenging his
removal and raising an affirmative defense of disparate treatment disability
discrimination. IAF, Tab 1 at 6, Tab 15 at 4-12. After holding the appellant’s
requested hearing, IAF, Tab 1 at 2, Tab 29, Hearing Recording Day 1 (HR
Day 1), Tab 30, Hearing Recording Day 2 (HR Day 2), the administrative judge
issued an initial decision, IAF, Tab 32, Initial Decision. Therein, he concluded
that the agency proved the charge of misrepresentation of arrival time by
substantial evidence, as required by 38 U.S.C. § 714(d)(2)(A). Id. at 17-20.
Acknowledging that an agency’s adverse action decision includes the selection of
the penalty, he concluded that the agency proved by substantial evidence that its
decision to remove the appellant for the charged misconduct was reasonable. Id.
at 20-21. He also found that the appellant failed to prove his affirmative defense
of disparate treatment disability discrimination. Id. at 21-24. Accordingly, he
affirmed the appellant’s removal. Id. at 24.
After that initial decision became final, the appellant filed a civil complaint
with the U.S. District Court for the District of Massachusetts challenging the
administrative judge’s decision. While that action was pending before the district2
court, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) decided
Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290 (Fed. Cir. 2021),
wherein it found that the DVA erred when it applied the substantial evidence
burden of proof to its internal review of a disciplinary action under 38 U.S.C.
§ 714. Rodriguez, 8 F.4th at 1296-1301. The same day it decided Rodriguez, the
Federal Circuit also decided Connor v. Department of Veterans Affairs , 8 F.4th
1319 (Fed. Cir. 2021), wherein it found that the DVA and the Board must still
apply the Douglas1 factors to the selection and the review of penalties in DVA
disciplinary actions taken under 38 U.S.C. § 714. Connor, 8 F.4th at 1326-27. In
light of the Federal Circuit’s decisions in Rodriguez and Connor, the agency filed
an unopposed motion with the district court to remand the case to the Board,
which the court granted. Chen v. Department. of Veterans Affairs , No. 1:21-
10225-JGD (D. Mass. Feb. 8, 2022) (order regarding motion for a voluntary
remand).
On remand, the administrative judge reopened the record and provided the
parties with an opportunity to address the issues discussed in Rodriguez, Connor,
and Bryant v. Department of Veterans Affairs , 26 F.4th 1344 (Fed. Cir. 2022),
which reiterated the Federal Circuit’s decisions in Rodriguez and Connor. Chen
v. Department of Veterans Affairs , MSPB Docket No. PH-0714-20-0353-M-1,
Remand Appeal File (RAF), Tab 4 at 2.2 The administrative judge also explained
that, because the holding in Rodriguez did not impact his conclusion that the
agency did not discriminate against the appellant due to his disability, he would
1 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.
2 The district court’s remand order limited the scope of remand to the effect of the
Rodriguez decision on the instant appeal. However, because the decisions in Connor
and Bryant also affect this appeal, the administrative judge expanded the scope of
remand to include the effects of Rodriguez, Connor, and Bryant. RAF, Tab 4 at 2.
Neither party has challenged the expanded scope of the proceedings on remand, and we
discern no error in this regard. 3
not revisit the issue on remand. Id. Both parties filed close of record
submissions addressing Rodriguez, Connor, and Bryant. RAF, Tabs 5-6, 9.
In the agency’s close of record submissions,3 it argued that, although the
deciding official found in the removal notice that the misconduct was supported
by substantial evidence instead of preponderant evidence, such an error does not
require reversal, but instead, is subject to the harmful error doctrine. RAF, Tab 9
at 5, 10-13, 21. Regarding whether the deciding official considered the Douglas
factors consistent with Connor, the agency argued that the deciding official
considered the spirit of certain Douglas factors in making his decision, but that it
could, nonetheless, supplement the record with an affidavit or testimony at a brief
and limited hearing to enumerate the relevant Douglas factors supporting the
penalty decision. Id. at 13-15, 21. The appellant argued in his close of record
brief that his removal should be reversed because the agency did not use the
proper standard of proof at the time the removal decision was rendered and
because the deciding official failed to properly consider the Douglas factors.
RAF, Tab 5 at 4-10.
Without taking additional testimony, RAF, Tab 4, the administrative judge
issued an initial decision on the written remand record, RAF, Tab 12, Remand
Initial Decision (RID). Therein, he found that the deciding official failed to
consider all the relevant Douglas factors in accordance with Connor and did not
inform the appellant of the relevance of the Douglas factors as a whole prior to
the appellant’s written and oral replies, thereby denying him an opportunity to
address those factors in his replies. RID at 10, 12-14. Thus, the administrative
judge concluded that the agency violated the appellant’s due process rights, a
3 The agency’s close of record brief was filed 1 day late, and the administrative judge
found that the agency failed to demonstrate good cause for the untimely filing. RID
at 7 & n.5. As such, she did not consider the agency’s close of record brief. RID
at 7 n.5. However, she explained that the agency’s reply to the appellant’s close of
record brief was timely filed and raised the same arguments contained in the untimely
close of record brief, and she considered the agency’s reply in issuing the initial
decision. Id. 4
finding that mandated reversal. RID at 14. Because the administrative judge
found that the appellant’s removal should be reversed on due process grounds as
it relates to the Douglas factors, he declined to resolve what effect the agency’s
application of the incorrect standard of proof during its internal deliberations, as
contemplated in Rodriguez, should have on the appeal. RID at 10. Based on the
foregoing, the administrative judge reversed the appellant’s removal.4 RID at 14.
The agency has filed a petition for review of the remand initial decision.
Petition for Review (PFR) File, Tab 1. It argues that the administrative judge’s
disposition of the appeal concerned only the deciding official’s handling of the
Douglas factors and did not address the issue identified by the district court in its
order remanding the appeal, which remanded for further proceedings consistent
with Rodriguez. Id. at 1, 6. The agency also disagrees with the administrative
judge’s finding that the deciding official violated the appellant’s due process
rights with his handling of the Douglas factors because the relevant factors upon
which he relied were properly communicated to the appellant, and it was
otherwise under no obligation to provide the appellant with a “primer on the
thoroughness he must employ” in replying to the proposed removal. Id. at 9-11.
As such, the agency argues that it provided the appellant with the required due
process and that any error related to the Douglas factors should be addressed
under the harmful error doctrine. Id. at 17-21. Accordingly, it asks that the
Board remand the appeal back to the agency for a new penalty determination.
Id. at 22-24.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency’s petition for review presents three issues: (1) whether the
agency’s penalty determination was in accordance with Connor; (2) whether the
4 The administrative judge reiterated that the decisions in Rodriguez and Connor did not
impact the basis for his finding in the prior initial decision that the appellant failed to
prove his disparate treatment disability discrimination claim, and that that finding
remains unchanged. RID at 2, 9. 5
removal action was consistent with due process requirements; and (3) whether the
removal action was taken in accordance with Rodriguez. Because the first two
issues are related, we address them together below. We then turn to the effect
that the Federal Circuit’s decision in Rodriguez has on this appeal. As set forth
below, we find that, although the removal action did not run afoul of due process
requirements, the penalty determination was not in accordance with Connor, nor
was the removal action consistent with Rodriguez. On these grounds, we remand
the appeal.
We remand the appeal for a redetermination of the appropriate penalty.
The deciding official failed to properly consider the Douglas factors.
We previously explained that, under Connor, the DVA and the Board must
still apply the relevant Douglas factors5 to the selection and review of penalties in
DVA disciplinary actions taken under 38 U.S.C. § 714. Connor, 8 F.4th
at 1326-27. In the decision notice, the deciding official stated that the appellant’s
position as a contract specialist requires the highest levels of integrity and
honesty and that the evidence demonstrated that the appellant did not possess
5 The Douglas factors include: (1) the nature and seriousness of the offense, and its
relation to the employee’s duties, position, and responsibilities, including whether the
offense was intentional or technical or inadvertent, or was committed maliciously or for
gain, or was frequently repeated; (2) the employee’s job level and type of employment,
including supervisory or fiduciary role, contacts with the public, and prominence of the
position; (3) the employee’s past disciplinary record; (4) the employee’s past work
record, including length of service, performance on the job, ability to get along with
fellow workers, and dependability; (5) the effect of the offense upon the employee’s
ability to perform at a satisfactory level and its effect upon supervisors’ confidence in
the employee’s ability to perform assigned duties; (6) consistency of the penalty with
those imposed upon other employees for the same or similar offenses; (7) consistency of
the penalty with any applicable agency table of penalties; (8) the notoriety of the
offense or its impact upon the reputation of the agency; (9) the clarity with which the
employee was on notice of any rules that were violated in committing the offense, or
had been warned about the conduct in question; (10) potential for the employee’s
rehabilitation; (11) mitigating circumstances surrounding the offense such as unusual
job tensions, personality problems, mental impairment, harassment, or bad faith, malice
or provocation on the part of others involved in the matter; and (12) the adequacy and
effectiveness of alternative sanctions to deter such conduct in the future by the
employee or others. Douglas, 5 M.S.P.R. at 305-06.6
those values. IAF, Tab 5 at 26. Thus, the deciding official concluded that he lost
trust in the appellant’s ability to perform his duties. Id. Additionally, during the
hearing, the deciding official testified that he doubted that the appellant had any
rehabilitative potential because the appellant continued to deny the misconduct
and did not show any remorse. IAF, Tab 32 at 11; HR Day 2 (testimony of the
deciding official). He also testified that he considered the appellant’s status as a
disabled veteran and the negative financial impact removal would have on the
appellant and his family. HR Day 2 (testimony of the deciding official).
In the remand initial decision, the administrative judge observed that the
agency did not complete a formal Douglas factors analysis, nor did he consider
other relevant factors favorable to the appellant, such as the appellant’s length of
service, disciplinary record, and job performance. RID at 12. Accordingly, she
concluded that the deciding official failed to consider all the relevant Douglas
factors in making his penalty determination. RID at 10. On review, the agency
argues that not all the Douglas factors are relevant in every case and that the
deciding official considered the factors most relevant to the instant action. PFR
File, Tab 1 at 14-16.
Although we acknowledge that the deciding official considered some of the
relevant Douglas factors, we agree with the administrative judge’s assessment of
this issue and find that the deciding official’s overall analysis of those factors is
inadequate. Notably, the section in the decision notice explaining the basis for
the penalty of removal is three sentences long and references, at most, 3 of the
12 Douglas factors. IAF, Tab 5 at 26. Despite the deciding official’s elaborating
on his penalty analysis during the hearing as explained above, we do not believe
that this additional testimony demonstrates a “responsible balancing of the
relevant factors.” See Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306
(1981); see also Holmes v. U.S. Postal Service , 987 F.3d 1042, 1047 (Fed. Cir.
2021) (explaining that the Board is required to determine whether the agency has
responsibly balanced the factors delineated in Douglas). As pointed out by the7
administrative judge, the deciding official did not consider the appellant’s length
of service, disciplinary record, or job performance. ID at 12. Nor did he consider
the consistency of the penalty imposed upon others for the same or similar
offenses, the consistency of the penalty with any applicable table of penalties, the
adequacy of alternative sanctions, or the clarity with which the appellant was on
notice of any rules that were violated in committing the offense.
We acknowledge that not every Douglas factor will be relevant in every
case and that the law does not require consideration of all 12 factors. See
Douglas, 5 M.S.P.R. at 306. However, we cannot conclude, as the deciding
official seemingly did, that none of the above-referenced factors are relevant in
the penalty determination. Importantly, the record does not contain any
explanation as to why the deciding official took such an exceedingly narrow view
on what Douglas factors he deemed relevant. Based on the foregoing, we find
that the deciding official’s penalty analysis was cursory in nature, and we agree
with the administrative judge that the deciding official failed to consider all the
relevant Douglas factors pursuant to Connor.6 See id. (explaining that the Board
must ensure that the agency conscientiously considered the relevant factors).
The agency did not violate the appellant’s due process rights.
As mentioned above, the administrative judge also found that, because the
agency failed to inform the appellant of the general relevance of the Douglas
factors prior to his written and oral replies to the notice of proposed removal, the
appellant was “not aware that it may have been helpful for him to emphasize”
certain factors, such as performance ratings, years of service, awards, and lack of
6 Regarding the deciding official’s conclusion that the appellant lacked rehabilitative
potential because he continued to deny the misconduct and, thus, lacked remorse, such a
conclusion is improper. HR Day 2 (testimony of the deciding official). In Smith v.
Department of the Navy , the Board stated that it is inappropriate to consider an
appellant’s denial of misconduct as an aggravating factor in determining the maximum
reasonable penalty and similarly inappropriate to consider an appellant’s lack of
remorse for the misconduct when the lack of remorse is a consequence of his denial of
the misconduct. 62 M.S.P.R. 616, 621 (1994).8
prior discipline. RID at 10, 12. As such, the administrative judge found that the
agency violated the appellant’s due process rights. RID at 12-13. Finding a due
process violation, the administrative judge also concluded that the deciding
official’s failure to properly consider the relevant Douglas factors, as discussed
above, could not be remedied. ID at 13-14. On review, the agency argues that it
provided the appellant with the necessary due process and that it should be given
an opportunity to address any inadequacies in its penalty analysis. PFR File,
Tab 1 at 17-24.
It is well settled that the essential requirements of constitutional due
process for a tenured public employee are notice of the charges against him, an
explanation of the evidence, and an opportunity for him to present his account of
events. Cleveland Board of Education v. Loudermill , 470 U.S. 532, 546 (1985).
The record demonstrates that the appellant was provided with notice of his
proposed removal based on a charge of misrepresentation of arrival time, the
evidence on which this charge was based, and an opportunity to reply to the
proposed action. IAF, Tab 5 at 82-85. It is also undisputed that the proposal
notice discussed (albeit in a cursory fashion) the basis for the proposed penalty of
removal. Id. Thus, although the agency did not explain the general relevance and
application of the Douglas factors to the appellant prior to the issuance of the
final decision, the appellant was nonetheless aware of the limited factors upon
which the removal action was purportedly based.7 Id. Such notice is consistent
7 Although the deciding official testified at the hearing that he also considered the
appellant’s status as a disabled veteran as a mitigating factor—a factor not discussed in
the disciplinary notices—the deciding official asserted, without contradiction, that the
appellant raised that factor in his reply to the proposal notice. HR Day 2 (testimony of
the deciding official); IAF, Tab 32 at 4. As such, it was appropriate for the deciding
official to consider it. See Grimes v. Department of Justice , 122 M.S.P.R. 36, ¶ 12
(2014) (confirming that it is not a due process violation when a deciding official
considers and rejects arguments raised by the appellant in response to a notice of
proposed removal). The deciding official also testified that he considered the negative
financial impact a removal would have on the appellant and his family, but no such
consideration was included in the disciplinary notices. HR Day 2 (testimony of the
deciding official; RID at 4-5. However, this consideration is not a mitigating factor; it9
with due process requirements. See Bennett v. Department of Justice ,
119 M.S.P.R. 685, ¶ 10 (2013) (stating that a deciding official’s knowledge of
information only raises due process or procedural concerns when that knowledge
is a basis for his determinations on either the merits of the underlying charge or
the penalty to be imposed).
Moreover, we find no legal support for the administrative judge’s
conclusion that an agency’s failure to explain the general existence and relevance
of the Douglas factors to the appellant constitutes a per se due process violation.
Importantly, in Rodriquez and Bryant, the Federal Circuit observed that the
deciding officials in both cases did not consider the Douglas factors in making
their penalty determinations. Rodriguez, 8 F.4th at 1296, 1301-03; Bryant,
26 F.4th at 1346. In neither case did the Federal Circuit identify their failure to
do so as a due process violation; rather, it simply reiterated its holding in Connor
that the DVA and the Board must consider the Douglas factors. See Rodriguez,
8 F.4th at 1301-02; Bryant, 26 F.4th at 1347-48. Further, in both cases, the
Federal Circuit remanded the appeals back to the Board for the appropriate
proceedings without reversing the removal actions outright. Rodriguez, 8 F.4th
at 1307, 1309; Bryant, 26 F.4th at 1347-48. Based on the foregoing, we vacate
the administrative judge’s finding that the agency violated the appellant’s due
process rights.
Although the administrative judge is correct that a due process violation
requires the reversal of an agency’s action, RID at 14 (citing Giannantonio v.
U.S. Postal Service , 111 M.S.P.R. 99, ¶ 5 (2009)), we find that, because no due
process violation occurred, there is no bar to remanding this appeal to the agency
for a proper penalty redetermination. See Connor, 8 F.4th at 1326-27 (stating
that, absent mitigation authority, if the Board determines that the DVA failed to
is a consequence inherent in the disciplinary action itself. Thus, there is no evidence
that the deciding official considered any specific factor that the appellant did not have
an opportunity to address prior to the issuance of the final decision effecting his
removal. 10
consider the Douglas factors, the Board must remand to the DVA for a
redetermination of the penalty); Brenner v. Department of Veterans Affairs ,
990 F.3d 1313, 1325 (Fed. Cir. 2021) (explaining that, because the Board cannot
mitigate or independently set penalties in an action taken under section 714, if it
concludes that the DVA’s removal decision is unsupported by substantial
evidence, the Board should remand to DVA for further proceedings).
Accordingly, we remand the appeal to the Northeastern Regional Office so that
the administrative judge may facilitate the agency’s prompt penalty
redetermination.8
We remand the appeal for the administrative judge to consider whether the
agency’s error in applying the substantial evidence standard of proof in taking the
removal action was harmful.
We now turn to the issue addressed by the district court in its order
granting the agency’s motion for a voluntary remand—the impact of the Federal
Circuit’s decision in Rodriguez on the instant appeal. In the decision notice, the
deciding official stated that the charge of misrepresentation of start time “is
supported by substantial evidence.” IAF, Tab 5 at 26. As explained above, the
Federal Circuit in Rodriguez found that the preponderant evidence standard is the
proper standard for DVA to apply in determining whether an employee has
engaged in misconduct that justifies discipline. Rodriguez, 8 F.4th 1297, 1301.
We explained above that the administrative judge did not resolve this issue
because she disposed of the appeal on other grounds. ID at 10.
It is not disputed that the agency applied the incorrect standard of proof to
its internal disciplinary proceedings. IAF, Tab 5 at 26. We conclude that this
8 The administrative judge’s conclusion that a remand to the agency would be “a bridge
too far” is inconsistent with Connor and Brenner. RID at 13; see Connor, 8 F.4th
at 1326-27; Brenner, 990 F.3d at 1325. On remand to the agency, however, the agency
should be mindful of its obligations to provide the appellant with the necessary due
process. See Brenner, 990 F.3d at 1324 (observing that the DVA Accountability Act
maintains due process protections for employees); Ward v. U.S. Postal Service ,
634 F.3d 1274, 1279 -80 (Fed. Cir. 2011); Stone v. Federal Deposit Insurance
Corporation, 179 F.3d 1368, 1375-77 (Fed. Cir 1999). 11
misapplication constitutes error. In Semenov v. Department of Veterans Affairs ,
2023 MSPB 16, the Board held that, because the Board adjudicates an action
taken under the DVA Accountability Act under 5 U.S.C. § 7701(b)(1), see
38 U.S.C. § 714(c)(4)(A), (d)(1), actions taken under 38 U.S.C. § 714 are subject
to the harmful error test from 5 U.S.C. § 7701(c)(2), Semenov, 2023 MSPB 16,
¶ 23. As such, the proper inquiry here is whether the agency’s error in applying
the incorrect standard of proof was likely to have caused the agency to reach a
different conclusion from the one it would have reached in the absence or cure of
the error. See id. (citing Ronso v. Department of the Navy , 122 M.S.P.R. 391,
¶ 14 (2015); 5 C.F.R. § 1201.4(r)). Accordingly, we also remand this appeal for
the administrative judge to consider whether the agency committed harmful error.
ORDER
For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with Rodriguez, 8 F.4th
1290, Connor, 8 F.4th 1319, Bryant, 26 F.4th 1344 and this Remand Order. On
remand, the administrative judge shall first set a deadline for the agency to
conduct the penalty redetermination, reissue an agency decision, and notify the
administrative judge of that decision.
After the agency provides the administrative judge with the penalty
redetermination, the administrative judge shall then address whether the agency’s
error in applying the substantial evidence standard of proof to its original action
was harmful, see 5 U.S.C. § 7701(a)(1), (b)(1); Semenov, 2023 MSPB 16, ¶ 24,
and whether its new penalty is supported by substantial evidence, Connor, 8 F.4th
at 1325-36. In so doing, he shall provide the parties with an opportunity to
present evidence and argument addressing these issues.9
The administrative judge shall then issue a new initial decision including
his findings on whether the agency committed harmful error in applying the
9 The administrative judge shall hold a hearing limited to the issues on remand if one is
requested by the appellant.12
substantial evidence standard of proof to its action, and if not, whether the new
penalty is supported by substantial evidence. See 5 U.S.C. § 7701(a)(1), (b)(1);
Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1376-77 (Fed. Cir.
2020); Semenov, 2023 MSPB 16, ¶ 24 . Regardless of whether the appellant
proves harmful error in the agency’s application of the substantial evidence
standard of proof in its decision, if any argument or evidence adduced on remand
affects the administrative judge’s analysis on the appellant’s affirmative defense
of disparate treatment disability discrimination, he should address such argument
or evidence in the remand decision.10 See Semenov, 2023 MSPB 16, ¶ 25. When
issuing a new initial decision on these matters, the administrative judge may
incorporate the findings and conclusions of the prior initial decision, consistent
with this Remand Order, into that new initial decision.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
10 To the extent the Board’s decision in Pridgen v. Office of Management and Budget ,
2022 MSPB 31 affects the administrative judge’s analysis of the appellant’s disparate
treatment disability discrimination affirmative defense, the new initial decision should
include that analysis.13 | Chen_Wei_PH-0714-20-0353-M-1__Remand_Order.pdf | 2024-01-12 | WEI CHEN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0714-20-0353-M-1, January 12, 2024 | PH-0714-20-0353-M-1 | NP |
2,531 | https://www.mspb.gov/decisions/nonprecedential/Ivester_David_DC-315H-22-0346-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID IVESTER,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-315H-22-0346-I-1
DATE: January 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
D
avid Ivester , Henrico, Virginia, pro se.
Katherine Largo Yourth , Esquire, and Kenyatta McLeod-Poole , Esquire,
Richmond, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of his probationary termination for lack of jurisdiction.2 On
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 At the time of the appellant’s appointment to his position, individuals appointed to a
permanent competitive-service position at the Department of Defense (DOD), such as
the appellant, were subject to a 2-year probationary period and only qualified as
“employees” under 5 U.S.C. § 7511(a)(1)(A)(ii) (2016) if they completed 2 years of
current continuous service. 10 U.S.C. § 1599e(a), (b)(1)(A), (d) (2016). As found by
2
petition for review, the appellant argues that the agency committed procedural
errors, failed to provide him with training, and was required to allow him to
complete his 2-year probationary period.3 Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
the administrative judge, the appellant had not completed 2 years of service at the time
of his termination. On December 27, 2021, President Biden signed into law the
National Defense Authorization Act for Fiscal Year 2022 (2022 NDAA), Pub. L. No.
117-81, 135 Stat. 1541. The 2022 NDAA repealed the 2-year probationary period for
DOD appointments made on or after December 31, 2022, and replaced it with a 1-year
probationary period. Pub. L. No. 117-81, § 1106, 135 Stat. 1541, 1950. That change
would not affect the outcome of this appeal.
3 To the extent that the appellant alleges that the agency committed procedural errors in
terminating him, Petition for Review File, Tab 1 at 4-5, in accordance with 5 C.F.R.
§ 315.804, the agency provided the appellant with written notice containing the reason
for his termination and the effective date thereof, Initial Appeal File, Tab 1 at 17-18,
and, thus, the agency has met its procedural requirements.
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 any
5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Ivester_David_DC-315H-22-0346-I-1_Final_Order.pdf | 2024-01-12 | DAVID IVESTER v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-315H-22-0346-I-1, January 12, 2024 | DC-315H-22-0346-I-1 | NP |
2,532 | https://www.mspb.gov/decisions/nonprecedential/Abbott_Mary_A_DC-0752-12-0366-A-3_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY A. ABBOTT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DC-0752-12-0366-A-3
DATE: January 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Allison B. Eddy , Esquire, Virginia Beach, Virginia, for the appellant.
Jasmin A. Dabney , Landover, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed an attorney fee petition for review of the addendum
initial decision, which awarded her attorney fees of $4,955.00 and costs of
$12.11, for a total of $4,967.11 . For the reasons discussed below, we GRANT the
appellant’s petition for review and AFFIRM the addendum initial decision, except
as expressly MODIFIED by this Final Order to award the appellant $6,825.00 in
attorney fees and $7.11 in costs, for a total award of $6,832.11.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
In December 2016, the Board reversed the appellant’s suspension and
awarded her back pay. Abbott v. U.S. Postal Service , MSPB Docket
No. DC-0752-12-0366-B-1, Final Order at ¶¶ 1, 22-23 (Dec. 20, 2016). The
appellant filed a motion for attorney fees in connection with the underlying
suspension appeal, which the Board granted. Abbott v. U.S. Postal Service ,
MSPB Docket No. DC-0752-12-0366-A-1, Attorney Fee Decision (A-1 AFD)
at 1, 10 (Feb. 24, 2017). The appellant filed a timely petition to enforce the
Board’s December 2016 order. Abbott v. U.S. Postal Service , MSPB Docket
No. DC-0752-12-0366-C-1, Compliance File (C-1 CF), Tab 1 at 4-5. In a
July 27, 2017 compliance initial decision, the administrative judge found the
agency in noncompliance.2 C-1 CF, Compliance Initial Decision (C-1 CID) at 5
(June 27, 2017). On September 13, 2017, the appellant filed a second motion for
attorney fees in connection with the compliance matter and the fee petition.
Abbott v. U.S. Postal Service , MSPB Docket No. DC-0752-12-0366-A-2,
Attorney Fee File (A-2 AFF), Tab 1 at 4-11. In February 2018, the parties
reached a settlement agreement, wherein the appellant agreed to withdraw her
second motion for attorney fees in exchange for $15,173.60 in attorney fees, and
the administrative judge dismissed the appeal as settled. A-2 AAF, Tab 11 at 4,
Attorney Fee Decision (A-2 AFD) at 1-2 (Feb. 8, 2018). However, on
October 17, 2017, while the appellant’s second attorney fee petition was pending,
the appellant filed a second petition for enforcement, arguing that the agency
failed to comply with the Board’s July 27, 2017 order. Abbott v. U.S. Postal
Service, MSPB Docket No. DC-0752-12-0366-C-2, Compliance File (C -2 CF),
Tab 1 at 4-6; A-2 AFD at 1. In an April 27, 2018, compliance initial decision, the
administrative judge found the agency in noncompliance. C-2 CF, Compliance
Initial Decision (C -2 CID) at 7 (Apr. 27, 2018). After the compliance initial
2 On August 16, 2017, the administrative judge issued an erratum order clarifying her
order to the agency. A-2 AFF, Addendum Attorney Fee Decision (Aug. 16, 2017).
3
decision became final, the appellant filed a third motion for attorney fees on
June 19, 2018, in connection with the work performed in the second compliance
matter. Abbott v. U.S. Postal Service , MSPB Docket No. DC-0752-12-0366-A-3,
Attorney Fee File (A -3 AFF), Tab 1 at 4-11. This third fee motion is the subject
of the instant appeal.
The appellant requested $7,200 in attorney fees and $7.11 in costs for work
performed between August 21, 2017, and July 24, 2018. A-3 AFF, Tab 1
at 12-17, Tab 5 at 9-11. The agency disputed the appellant’s claimed fees, and
the appellant replied. A -3 AFF, Tab 4 at 5-6, Tab 5 at 4-7. After reviewing the
parties’ submissions, the administrative judge issued an addendum initial
decision, awarding the appellant attorney fees of $4,955.00 and costs of $12.11,
for a total of $4,967.11 . A-3 AFF, Tab 7, Attorney Fee Decision (A -3 AFD)
at 9-10. She awarded the appellant all of the claimed costs, and found that the
rates were reasonable, but reduced the attorney fee award by $2,250 because the
hours claimed were duplicative. Id.
The appellant has filed a petition for review, disputing the fee reduction.
Addendum Petition for Review (A-3 PFR) File, Tab 1 at 8-15. The agency has
not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
As the administrative judge correctly explained, A-3 AFD at 5, to establish
entitlement to an award of attorney fees under 5 U.S.C. § 7701(g)(1), an appellant
must show the following elements: (1) she was the prevailing party; (2) she
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). The administrative judge found that the appellant met the first three
elements. A-3 AFD at 5-7. These findings are supported, well-reasoned, and
unchallenged on review. Id. Accordingly, we decline to revisit them here and
4
focus on the appellant’s challenges to the administrative judge’s finding
regarding the final element—the reasonableness of the fees claimed.
In determining the reasonable fee award, the Board first calculates the
“lodestar”—the product of the reasonable hourly rate multiplied by the hours
reasonably spent working on the matter. Driscoll, 116 M.S.P.R. 662, ¶ 10. To
establish the appropriate hourly rate, an attorney fee petition must contain a copy
of the fee agreement, if any, as well as evidence of the attorney’s customary
billing rate for similar work. Hart v. Department of Transportation ,
115 M.S.P.R. 10, ¶ 14 (2010). The party seeking an award should exclude hours
that are excessive, redundant, or otherwise unnecessary. Driscoll, 116 M.S.P.R.
662, ¶ 11. The administrative judge need not automatically accept claimed hours,
but may disallow hours for duplication, padding, or frivolous claims and impose
fair standards of efficiency and economy of time. Id.
Neither party challenged the administrative judge’s finding that, based
upon her review of the supporting documentation, the claimed rates for the
associate attorney and the named partner were reasonable. A-3 AFD at 8. In
calculating the lodestar, she identified a rate of $300 per hour for the associate
attorney and $400 per hour for the named partner. Id. We find that the
administrative judge made a typographical error regarding the named partner’s
claimed rate. Id. In his affidavit, the named partner claimed a rate of $450 per
hour. A-3 AFF, Tab 1 at 23-25. He also consistently billed $450 per hour for
work performed, as reflected in the billing statements, and provided sufficient
evidence showing that $450 per hour was a customary rate for attorneys in his
area with similar experience performing similar work. A-3 AFF, Tab 1 at 14-17,
26-33; see generally Hart , 115 M.S.P.R. 10, ¶ 14. Finally, the administrative
judge found no basis for adjusting the claimed rates and relied on the appellant’s
fee calculations, which were based on the $450 rate. A-3 AFD at 8. Accordingly,
we modify the addendum initial decision to correct this harmless, typographical
error and find that the reasonable rate for the named partner was $450 per hour.
5
See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984)
(explaining that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).
After finding that the claimed rate was reasonable, the administrative judge
determined that the lodestar was $7,200. A-3 AFD at 8. She adjusted the
lodestar downward by $2,250 because she determined that, pursuant to the
February 2018 attorney fee settlement agreement, the appellant had received
attorney fees for work performed from August 21 to September 13, 2017, and
therefore that awarding fees based on work performed during those
“overlap[ping]” dates would be duplicative.3 A-3 AFD at 8-9. On review, the
appellant argues that the administrative judge should not have reduced her
claimed hours. A -3 PFR File, Tab 1 at 10-14. Alternatively, she argues that,
even if a reduction were appropriate, the administrative judge’s reduction of
$2,250 was excessive and unjustified. Id. at 8, 14-15. She asserts that she only
claimed $405 in fees for the disputed period. Id. We agree that the
administrative judge’s reduction was excessive.
As explained above, in February 2018, the parties entered into a settlement
agreement resolving the appellant’s second fee petition. A-2 AFF, Tab 11 at 4.
A settlement agreement is a contract and is interpreted in accordance with
contract law. See Greco v. Department of the Army , 852 F.2d 558, 560 (Fed. Cir.
1988). In construing the terms of a settlement agreement, the words of the
agreement are of paramount importance. Flores v. U.S. Postal Service ,
115 M.S.P.R. 189, ¶ 10 (2010) (citing Greco, 852 F.2d at 560). The Board will
consider parol evidence only if the agreement is ambiguous. Id. The terms of an
3 Although not specified in the addendum initial decision, the administrative judge
appears to either have miscalculated the hours claimed in the period at issue or applied
a 31% reduction to the lodestar. In any event, the administrative judge must identify
the hours eliminated and give a clear explanation for their elimination. Casali v.
Department of the Treasury , 81 M.S.P.R. 347, ¶ 14 (1999). Thus, she erred in failing to
provide a detailed explanation of how she arrived at the $2,250 figure. However, in
light of our disposition here, we find it unnecessary to determine how she calculated
this amount.
6
agreement are ambiguous as a result of differing interpretations as to the
meanings or intent given to those terms by the parties only when the respective
interpretations are both reasonable. Id.
Here, it is undisputed that the settlement agreement was enforceable and
the appellant withdrew her second fee petition as consideration for receiving
$15,173.60 in attorney fees. A-2 AFD at 1-2; A-2 AFF, Tab 11 at 4. Neither
party has challenged the addendum initial decision that dismissed the appellant’s
prior fee petition as settled; that decision is now final. A-2 AFD at 12; see
generally Weldon v. Department of Veterans Affairs , 119 M.S.P.R. 478, ¶ 5
(2013) (explaining that an attack on the validity of a settlement agreement must
be made in the form of a petition for review of the initial decision dismissing the
appeal as settled); 5 C.F.R. § 1201.113 (explaining that an initial decision
generally becomes the Board’s final decision 35 days after issuance, absent a
petition for review). Instead, the appellant disagrees with the administrative
judge’s interpretation of the scope of the agreement. A-3 PFR File, Tab 1
at 8-14.
The administrative judge found that the entirety of the hours claimed from
August 21 and September 13, 2017, included in the instant petition were
encompassed by the parties’ 2018 settlement agreement. A-3 AFD at 9. The
appellant argues that, despite the overlap in dates, all of the fees claimed in the
instant appeal were for compliance-related work in connection with the second
petition for enforcement, which involved issues distinct from the claims involved
in the first petition for enforcement, and thus were not covered by the settlement
agreement.4 Id. The first compliance initial decision became final on August 31,
2017. C-1 CID at 7-8. According to the appellant’s second petition for
enforcement, the appellant received a check for back pay from the agency on
4 The agreement contained no requirement that the appellant waive any claim to
attorney fees related to other matters, such as separate work performed for the
appellant’s second petition for enforcement and third fee petition. A-2 AFF, Tab 11
at 4.
7
September 5, 2017, that was insufficient.5 C-2 CF, Tab 1 at 5. The agency’s
purported failure to pay the appellant the appropriate back pay amount at that
time gave rise to the appellant’s second petition for enforcement. Id. Thus, the
back pay-related work performed prior thereto was reasonably related to the
matters at issue in the appellant’s second petition for attorney fees and covered by
the February 2018 attorney fee settlement agreement.6 C-1 CID at 5; C -1 Erratum
Order at 1-2; A-2 AFF, Tab 1 at 5-6, Tab 11 at 4. Of the seven disputed entries,
all but one—the entry dated September 12, 2017—was for work performed before
the agency issued the September 5, 2017 back pay check. A -3 AFF, Tab 1 at 14;
C-2 CF, Tab 1 at 5. The appellant’s attorney described the work performed for
this period as concerning back pay. A -3 AFF, Tab 1 at 14; C-1 CID at 1-3;
C-2 CID at 1-2. Therefore, we find that the six entries for work performed from
August 21 to September 1, 2017, were encompassed by the appellant’s settlement
agreement and her request for those fees is duplicative.7
As a result, we exclude the 1.1 hours of work and the 0.1 hours of work the
associate attorney and named partner billed, respectively, for August 21 through
September 1, 2017, from the lodestar calculation, reducing the associate
attorney’s number of reasonable hours from 21 to 19.9 hours and the named
partner’s reasonable hours from 2 to 1.9 hours. A-3 AFF, Tab 1 at 12-17, Tab 5
at 9-11. After multiplying the associate attorney’s 19.9 hours billed by her rate of
5 The appellant apparently received no further notice of compliance from the agency
before she filed her second petition for enforcement on October 17, 2017. Id. at 7-11.
6 The agency discusses the appellant’s second petition for enforcement in a filing titled
“2018 1-30 Agency Response to Enforcement Petition,” dated January 30, 2018, that the
agency submitted to the appellant’s second fee petition file; however, that filing appears
to have been intended for the C-2 compliance file. A-2 Tab 10; C -2 CF, Tab 9
(appellant’s February 6, 2018 reply to the agency’s response to the petition for
enforcement).
7 As to the appellant’s apparent arguments that her attorneys did not double bill for
work performed outside of the disputed time frame, the administrative judge found no
such duplicate billing and did not reduce the appellant’s attorney award on that basis.
A-3 AFD at 8-14; A-3 PFR File, Tab 8-14.
8
$300, and the named partner’s 1.9 hours billed by his rate of $450 per hour, we
find that the lodestar calculation is $6,825.00. The administrative judge
identified no other basis for reducing the lodestar. See, e.g., Driscoll,
116 M.S.P.R. 662, ¶¶ 10, 16 (explaining that it may be appropriate to reduce the
lodestar to reflect a party’s failure to obtain all the relief he requested).
Accordingly, we find that the administrative judge’s inexplicable reduction of
$2,250 was in error and that the appellant is entitled to $6,825.00 in attorney fees.
Finally, the appellant requested $7.11 in costs relating to postage paid for
filings related to the second petition for enforcement and the third petition for
attorney fees. A-3 AFF, Tab 1 at 12, 18-20, Tab 5 at 9. The administrative judge
found the appellant’s claimed costs were reasonable. A-3 AFF at 9. We agree.
See Social Security Administration v. Balaban , 33 M.S.P.R. 309, 323 (1987)
(identifying postage as a cost recoverable under 5 U.S.C. § 7701(g)(1)).
However, as the record reflects that the appellant only requested $7.11 in costs,
the administrative judge appeared to make a typographical error in awarding the
appellant $12.11 in costs. A-3 AFD at 9; A-3 AFF, Tab 1 at 12, 18-20, Tab 5
at 9. We modify the addendum initial decision in this regard. Accordingly, we
find that the appellant is entitled to $6,825.00 in attorney fees and $7.11 in costs,
for total award of $6,832.11.
ORDER
We ORDER the agency to pay the attorney of record $6,832.11 in fees and
costs. The agency must complete this action no later than 20 days after the date
of this decision. Title 5 of the United States Code, section 1204(a)(2) (5 U.S.C.
§ 1204(a)(2)).
We also ORDER the agency to tell the appellant and the attorney promptly
in writing when it believes it has fully carried out the Board’s Order and of the
actions it has taken to carry out the Board’s Order. We ORDER the appellant and
the attorney to provide all necessary information that the agency requests to help
9
it carry out the Board’s Order. The appellant and the attorney, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant or the attorney
that it has fully carried out the Board’s Order, the appellant or the attorney may
file a petition for enforcement with the office that issued the initial decision on
this appeal, if the appellant or the attorney believes that the agency did not fully
carry out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorney believes the agency has not fully carried out the Board’s
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
11
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.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.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Abbott_Mary_A_DC-0752-12-0366-A-3_Final_Order.pdf | 752-12-03 | MARY A. ABBOTT v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DC-0752-12-0366-A-3, January 12, 2024 | DC-0752-12-0366-A-3 | NP |
2,533 | https://www.mspb.gov/decisions/nonprecedential/Wilbert_Craig_S_PH-0841-21-0002-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRAIG S. WILBERT,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0841-21-0002-I-1
DATE: January 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
C
raig S. Wilbert , Waldorf, Maryland, pro se.
Tanisha Elliott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appellant’s appeal of the Leave Claim Decision, which was issued
by the Office of Personnel Management (OPM) under the authority of 31 U.S.C.
§3702, for lack of jurisdiction. On petition for review, the appellant argues that
OPM’s Leave Claim Decision is a final decision sufficient to establish Board
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
jurisdiction over his 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 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 Montelongo v. Office of Personnel
Management, 939 F.3d 1351 (Fed. Cir. 2019), shows that the Board has
jurisdiction over his appeal. Petition for Review (PFR) File, Tab 1 at 4. We
disagree. In Montelongo, the appellant applied for a retirement annuity, and OPM
issued a final decision finding that he lacked the requisite 5 years of civilian
service necessary under 5 U.S.C. § 8410 because his time as a cadet student at the
United States Military Academy at West Point did not count as civilian service.
Montelongo, 939 F.3d at 1354-55. The claim in Montelongo was within the
Board’s jurisdiction because it concerned that appellant’s rights and interests
under 5 U.S.C. § 8410. Id.; see 5 U.S.C. § 8461(e)(1) (authorizing appeals to the
Board of decisions affecting the rights and interests of an individual under the
provisions of 5 U.S.C. chapter 84). In this matter, the appellant seeks accrued
leave and benefits allegedly due to him based on his service computation date, as
adjusted by the buyback of his military time. PFR File, Tab 1 at 4. This concerns
the application of 5 U.S.C. § 6303. Initial Appeal File (IAF), Tab 1 at 8-10. As
3
it does not concern a decision concerning the appellant’s rights and interests
under the provisions of chapter 84, the administrative judge correctly found that
the Board lacks jurisdiction over the appeal. IAF, Tab 8, Initial Decision at 3-4;
see 5 U.S.C. § 8461(e)(1). If the appellant does receive a decision regarding
service credit for retirement purposes such that it concerns a matter affecting his
rights and interests under chapter 84, he may file an appeal at that time. 5 U.S.C.
§ 8461(e)(1).
We note that claims related to the accrual of leave have been heard by the
Board under the Uniformed Services Employment and Reemployment Rights Act
of 1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA) if the
proper jurisdictional prerequisites are met. See Murray v. National Aeronautics
and Space Administration , 112 M.S.P.R. 680, ¶¶ 11-13 (finding that under
5 U.S.C. § 6303(a) a member of a uniformed service who is appointed to a
civilian position while on terminal leave pending retirement is entitled to credit
for his years of active military service only for the duration of his terminal leave;
once the employee retires from the uniformed service, he no longer is entitled to
credit for his years of active military service unless he satisfies one of the
statutory exceptions set forth at 5 U.S.C. § 6303(a)(A)-(C), (e)). Additionally,
there is no statutory time limit for filing an appeal to the Board under USERRA.
5 C.F.R. § 1208.12; see Lee v. Department of Justice , 99 M.S.P.R. 256, ¶ 15
(2005). The appellant may establish jurisdiction over a USERRA appeal by
showing: (1) performance of duty in a uniformed service of the United States;
(2) an allegation of a loss of a benefit of employment; and (3) an allegation that
the benefit was lost due to the performance of duty in the uniformed service. Lee,
99 M.S.P.R. 256, ¶ 9. We make no statement as whether the appellant has
satisfied or can satisfy these jurisdictional requirements.2
2 In addition, the appellant may have other avenues of redress, as noted by OPM. IAF,
Tab 1 at 10 (noting “the claimant’s right to bring an action in an appropriate United
States court.”).
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Wilbert_Craig_S_PH-0841-21-0002-I-1_Final_Order.pdf | 2024-01-12 | CRAIG S. WILBERT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0841-21-0002-I-1, January 12, 2024 | PH-0841-21-0002-I-1 | NP |
2,534 | https://www.mspb.gov/decisions/nonprecedential/Leckrone_David_CH-844E-22-0466-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID LECKRONE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-844E-22-0466-I-1
DATE: January 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David Leckrone , Springfield, Illinois, pro se.
James W. Mercier , 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 decision of the Office of Personnel Management (OPM) denying his
request to reverse his immediate retirement annuity and reinstate his disability
retirement annuity. On petition for review, the appellant reargues that his
immediate retirement annuity should be reversed to allow for the reinstatement 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 disability retirement annuity because he applied for immediate retirement
based on incomplete information from OPM.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
2 The appellant also asserts that he was “differentiated against based on his disability
status.” Petition for Review File, Tab 1 at 6. To the extent that he is raising a claim of
disability discrimination, he does so for the first time on review. The Board generally
will not consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available despite
the party’s due diligence. See Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶ 34 n.10; Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980). The appellant, presenting no basis for his claim, has not made such a showing
here.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Leckrone_David_CH-844E-22-0466-I-1__Final_Order.pdf | 2024-01-12 | DAVID LECKRONE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-844E-22-0466-I-1, January 12, 2024 | CH-844E-22-0466-I-1 | NP |
2,535 | https://www.mspb.gov/decisions/nonprecedential/Keys_Ricky_R_SF-0752-22-0466-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICKY R. KEYS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0752-22-0466-I-1
DATE: January 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ricky R. Keys , Los Angeles, California, pro se.
Maureen Ney , Esquire, Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal decision. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation 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, that appellant submits medical documentation that he did not
submit during the proceedings below. Petition for Review (PFR) File, Tab 1
at 5-222. Under 5 C.F.R. § 1201.115, the Board generally will not consider
evidence submitted for the first time with a petition for review absent a showing
that it was unavailable before the record was closed before the administrative
judge despite the party’s due diligence. Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 213 -14 (1980). Because the medical records predate the close of
record date below and the appellant has not explained why they were not
previously available, we have not considered them on review. The appellant also
resubmitted documentation that was already part of the record below. E.g.,
compare Initial Appeal File, Tab 1 at 14-52, with PFR File, Tab 1 at 51-89.
Evidence that is already part of the record is not new evidence that warrants
granting review. Meier v. Department of the Interior , 3 M.S.P.R. 247, 256
(1980); see 5 C.F.R. § 1201.115(d) (identifying new and material evidence as a
basis on which the Board may, in appropriate circumstances, grant review).
Accordingly, we affirm the initial decision. 2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Keys_Ricky_R_SF-0752-22-0466-I-1__Final_Order.pdf | 2024-01-12 | RICKY R. KEYS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-22-0466-I-1, January 12, 2024 | SF-0752-22-0466-I-1 | NP |
2,536 | https://www.mspb.gov/decisions/nonprecedential/Mattison_Warren_L_CH-0845-20-0026-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WARREN L. MATTISON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0845-20-0026-I-1
DATE: January 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A. Brian Henson , Esquire, Decatur, Georgia, 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 his annuity overpayment appeal for lack of jurisdiction because the
Office of Personnel Management (OPM) rescinded its final decision on the
appellant’s alleged overpayment. On petition for review, the appellant claimed
that, after the administrative judge issued the initial decision, OPM deducted
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
$1,000.00 from his annuity for the alleged overpayment.2 Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review.3 Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision.4 5 C.F.R.
§ 1201.113(b).
2 In response to the appellant’s petition for review, OPM asserted that it had stopped the
collection schedule and that the appellant should receive his $1,000.00 refund within
7 days, but it did not provide evidence or documentation showing that the payment had
been made. Petition For Review (PFR) File, Tab 2 at 3. The Acting Clerk of the Board
issued a show cause order asking the appellant whether he had received the payment.
PFR File, Tab 5. In response, the appellant asserted he had received the $1,000.00
refund. PFR File, Tab 6. Thus, the appellant has been returned to the status quo ante,
and the Board has no jurisdiction over this appeal. See Alexis v. Office of Personnel
Management, 106 M.S.P.R. 315, ¶¶ 6-7 (2007) (finding that, because OPM provided
evidence that it had refunded the money it withheld from his retirement annuity, the
decision was moot because there was no further relief the Board could grant).
3 On March 17, 2021, the parties submitted a document entitled Joint Stipulation for
Withdrawal of Petition for Review with Prejudice to Refile in which the appellant
sought to withdraw his petition for review. PFR File, Tab 7. Thereafter, on March 18
and April 19, 2021, the Office of the Clerk of the Board issued orders requiring the
appellant to confirm his intent to withdraw the petition for review and his understanding
that any withdrawal is with prejudice to refiling with the Board. PFR File, Tabs 8-9.
Because the appellant failed to respond, the Office of the Clerk of the Board informed
him that it would take no further action regarding the withdrawal request and the Board
would issue a decision on his petition for review upon restoration of a quorum. PFR
File, Tab 10. The appellant has taken no further action to effect the withdrawal of his
petition, and, thus, we address the merits of the petition for review.2
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
4 If the appellant is dissatisfied with a subsequent OPM reconsideration decision
regarding his retirement benefits, he may file an appeal of that decision to the Board.
See 5 U.S.C. § 8461(e)(1); 5 C.F.R. § 841.308. Any future appeal must be filed within
the time limits set forth in the Board’s regulations. See 5 C.F.R. § 1201.22.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with 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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Mattison_Warren_L_CH-0845-20-0026-I-1__Final_Order.pdf | 2024-01-11 | WARREN L. MATTISON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0845-20-0026-I-1, January 11, 2024 | CH-0845-20-0026-I-1 | NP |
2,537 | https://www.mspb.gov/decisions/nonprecedential/Bailey_CollinAT-0714-17-0722-I-1__Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
COLLIN BAILEY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-17-0722-I-1
DATE: January 10, 2024
THIS ORDER IS NONPRECEDENTIAL1
Megan Zeller , Esquire, and Tyler Sroufe , Esquire, Dallas, Texas, for
the appellant.
Karen Rodgers and W. Robert Boulware , Montgomery, Alabama, 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
sustained his removal. For the reasons discussed below, we GRANT the petition
for review, VACATE the initial decision, REVERSE the appellant’s removal, 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 appeal to the Atlanta Regional Office for further adjudication of
the appellant’s affirmative defenses in accordance with this Remand Order.
BACKGROUND
¶2The agency employed the appellant as a GS-12 Supervisory Diagnostic
Radiologic Technologist at the Veterans Health Administration in Montgomery,
Alabama. Initial Appeal File (IAF), Tab 6 at 11. Effective August 18, 2017, the
agency removed him for the charges of conduct unbecoming and improper
conduct. Id. at 9-11, 23-24. The appellant filed a Board appeal and raised
affirmative defenses of race discrimination, sex discrimination, and retaliation for
engaging in protected equal employment opportunity (EEO) activity. IAF,
Tabs 1, 16.
¶3After the appellant withdrew his request for a hearing, the administrative
judge issued an initial decision based on the written record. IAF, Tab 18 at 1,
Tab 24, Initial Decision (ID). He found that the agency proved its charge of
conduct unbecoming a Federal employee. ID at 4-5. He then found it
unnecessary to review whether the appellant engaged in the specified improper
conduct. ID at 5. He further found that the appellant failed to meet his burden of
showing that his removal was motivated by race discrimination, sex
discrimination, or retaliation based on prior EEO activity. ID at 5-7. He
therefore affirmed the removal action. ID at 7.
¶4The appellant has filed a petition for review, and the agency has filed a
response in opposition. Petition for Review (PFR) File, Tabs 3, 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency’s charges are not sustained and the appellant’s removal must be
reversed.
¶5The administrative judge sustained the conduct unbecoming charge and
found that charge sufficient to sustain the appellant’s removal. ID at 4-5.
Therefore, he did not decide whether the agency proved its improper conduct2
charge. ID at 5. On review, the appellant disagrees that the agency proved the
conduct unbecoming charge. PFR File, Tab 3 at 13-16. He also disputes the
improper conduct charge. Id. at 17-18.
¶6The basis of the agency’s conduct unbecoming charge was the appellant’s
admitted “personal and consensual” relationship with a subordinate between 2014
and 2016. IAF, Tab 6 at 9, 16-17, 20-21, Tab 20 at 28-29. The alleged
misconduct included sending the subordinate at least one sexually explicit text
message. IAF, Tab 6 at 9, 46-49, Tab 20 at 28-29. The appellant submitted a
sworn statement below attesting that the “friendship [with his subordinate] ended
in 2015.” IAF Tab 20 at 29, 42. The appellant also admitted that, as the agency
alleged in support of its improper conduct charge, in November 2014, he loaned
the same subordinate $1,500. IAF, Tab 6 at 9, 17-18, Tab 20 at 30.
¶7The agency removed the appellant under the Department of Veterans Affairs
Accountability and Whistleblower Protection Act of 2017 (VA Accountability
Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869 -73 (codified as amended at
38 U.S.C. § 714). After the administrative judge issued his decision, the U.S.
Court of Appeals for the Federal Circuit determined that the agency cannot
remove an employee under the VA Accountability Act for incidents that took
place before the Act was signed into law on June 23, 2017. Sayers v. Department
of Veterans Affairs , 954 F.3d 1370, 1374, 1380 -82 (Fed. Cir. 2020). The court
reasoned that doing so has an “impermissible retroactive effect.” Id. at 1380-82.
When the cited conduct in support of an action taken under the VA
Accountability predates June 23, 2017, the charge cannot be sustained and the
agency’s action must be reversed. Wilson v. Department of Veterans Affairs ,
2022 MSPB 7, ¶¶ 26-29, 33. Here, all of the cited misconduct occurred prior to
June 2017. Therefore, the agency’s charge is not sustained and the removal is
reversed.
¶8Because we reverse the charges on the basis that the agency improperly
relied on 38 U.S.C. § 714 in taking its action, we need not consider the3
appellant’s arguments regarding the merits of the charges. PFR File, Tab 3
at 13-18. For the same reason, we do not reach the appellant’s arguments on
review that the alleged misconduct did not have a nexus with the efficiency of the
service and that removal was too severe a penalty. Id. at 18-21.
We remand this appeal for further adjudication of the appellant’s affirmative
defenses of race and sex discrimination and EEO retaliation.
¶9The Board will not reverse an administrative judge’s rulings on discovery
matters absent an abuse of discretion. Wagner v. Environmental Protection
Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993)
(Table). Here, the appellant timely initiated discovery on September 27, 2017.
IAF, Tab 12 at 12-20. The agency responded to the appellant’s discovery
requests on October 17, 2017. Id. at 21-23. On October 25, 2017, the appellant
emailed the agency stating that its responses were deficient in that they lacked the
requested comparator evidence and advising the agency that his deadline to file a
motion to compel was October 27, 2017. Id. at 24. On October 26, 2017, the
agency responded, notifying the appellant that it had requested a copy of his
personnel file and, on October 27, 2017, the agency notified the appellant that it
had overnighted the personnel file. Id. at 24, 26. Neither email response from
the agency addressed the requested comparator evidence. As a result, the
appellant filed a motion to compel discovery responses concerning the requested
comparator evidence. Id. at 4-10. The motion included a description of the
appellant’s attempt to confer with the agency prior to its filing, and the
appellant’s attorney declared that the facts in the pleading were true and correct
under penalty of perjury. Id. at 3-5. The agency did not file a response to the
motion to compel.
¶10The administrative judge subsequently issued an order denying the motion
to compel. IAF, Tab 13. He found the motion deficient because it failed to
demonstrate that the parties discussed the anticipated motion either in person or
by telephone prior to filing. Id. at 1-2. In so finding, he stated that, at best, the4
five parties only exchanged email messages concerning the discovery dispute.
Id. at 2.
¶11In the initial decision, the administrative judge found that the appellant
failed to meet his burden of showing that his removal was motivated by race
discrimination, sex discrimination, or retaliation based on prior EEO activity. ID
at 5-7. Significantly, he found that the appellant failed to present any evidence of
comparator employees who engaged in similar conduct but were treated
differently. ID at 6-7. On review, the appellant claims that the administrative
judge abused his discretion, and prevented him from proving his affirmative
defenses, when he denied his motion to compel the agency’s responses to his
discovery requests concerning comparator evidence relating to his discrimination
and retaliation claims. PFR File, Tab 3 at 11-13. We agree. In this situation, we
find the email exchange sufficient to show that the parties discussed or attempted
to discuss the discovery dispute and a potential motion to compel prior to its
filing as required by regulation. See 5 C.F.R. § 1201.73(c)(1)(iii).
¶12However, the Board will not find reversible error in an administrative
judge’s discovery rulings absent an abuse of discretion that prejudiced the
appellant’s substantive rights. White v. Government Printing Office ,
108 M.S.P.R. 355, ¶ 9 (2008). The appellant’s initial discovery requests and
subsequent motion to compel sought discovery of comparator evidence for the
purposes of proving his affirmative defenses of race discrimination, sex
discrimination, and retaliation based on prior EEO activity. IAF, Tab 12. An
appellant may prove a claim of discrimination based on race or sex by proving
that prohibited discrimination at least “play[ed] any part in the way a decision
[was] made.” Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 20-21 (quoting Babb v. Wilkie, 140 S. Ct. 1168, 1173 -74 (2020)). Claims of
retaliation for opposing discrimination in violation of Title VII are analyzed
under the same framework used for Title VII discrimination claims. Id., ¶ 30
(citation omitted). One way an appellant may establish a discrimination claim is5
through comparator evidence, or evidence relating to the treatment of similarly
situated employees. Id., ¶ 27. The appellant, as the party bearing the burden of
proof on his affirmative defenses, is entitled to obtain such evidence to support
his claims. See White, 108 M.S.P.R. 355, ¶ 9. As the appellant’s motion to
compel was reasonably calculated to lead to the discovery of admissible evidence,
he was prejudiced in his ability to present his affirmative defenses. See 5 C.F.R.
§ 1201.72(a) (providing that during the discovery process a party may seek
information that appears reasonably calculated to lead to the discovery of
admissible evidence). Therefore, the administrative judge abused his discretion
and committed reversible error by denying the appellant’s motion to compel. See
White, 108 M.S.P.R. 355, ¶¶ 8-10 (concluding that an administrative judge’s error
in denying a motion to compel comparator information related to a race
discrimination claim prejudiced an appellant’s substantive rights and remanding
the appeal on this basis).
¶13On remand, the administrative judge must grant the appellant’s motion to
compel in whole or in part, as appropriate, and reopen discovery to allow the
appellant to complete discovery related to relevant comparator evidence. After
the completion of discovery, the administrative judge shall provide the parties
with an opportunity to submit supplemental evidence and argument concerning
the appellant’s affirmative defenses into the record. The administrative judge
also shall afford the appellant a hearing, if requested.2 See, e.g., White,
108 M.S.P.R. 355, ¶ 10; Mc Grath v. Department of the Army , 83 M.S.P.R. 48,
¶ 20 (1999).
2 On review, the appellant claims that the administrative judge failed to review his Trial
by Submission, including affidavits and statements that attest to the fact that race was a
motivating factor in his removal. PFR File, Tab 3 at 10-13, 22-25. On remand, the
administrative judge shall consider this evidence as well as any rebuttal to this evidence
submitted by the agency on remand.6
ORDER
¶14Accordingly, the initial decision is vacated, the appellant’s removal is
reversed, and the case is remanded for further adjudication.
¶15Notwithstanding the remand proceedings on the appellant’s discrimination
and retaliation claims, we ORDER the agency to cancel the appellant’s removal
and to restore the appellant effective August 18, 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.
¶16We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶17We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶18No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a). 7
¶19For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.8
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. | Bailey_CollinAT-0714-17-0722-I-1__Remand Order.pdf | 2024-01-10 | COLLIN BAILEY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-17-0722-I-1, January 10, 2024 | AT-0714-17-0722-I-1 | NP |
2,538 | https://www.mspb.gov/decisions/nonprecedential/OGBURN_LAUNA_G_DC-0841-18-0135-P-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAUNA GOLDDEEN OGBURN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0841-18-0135-P-1
DATE: January 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
L
auna Golddeen Ogburn , Woodbridge, Virginia, 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 addendum initial
decision, which dismissed her motion for consequential damages. Generally, we
grant petitions such as this one only in the following circumstances: the initial
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).
2
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
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 addendum initial decision,2 which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
On petition for review, the appellant argues that she prevailed in her
underlying appeal. Petition for Review (PFR) File, Tab 3 at 8. A party can only
achieve prevailing party status by being awarded some relief by the Board or a
court or by obtaining an enforceable settlement agreement. See
Mulero-Echevarria v. Office of Personnel Management , 93 M.S.P.R. 154, ¶ 4
(2002) (citing Buckhannon Board and Care Home, Inc. v. West Virginia
Department of Health and Human Resources , 532 U.S. 598, 604 (2001)). Here,
the Office of Personnel Management (OPM) rescinded its October 2017
reconsideration decision which formed the basis of the appellant’s underlying
appeal, and the administrative judge dismissed the appeal for lack of jurisdiction.
Ogburn v. Office of Personnel Management , MSPB Docket No. DC-0841-18-
2 The administrative judge should have denied, rather than dismissed, the appellant’s
motion for consequential damages. See, e.g., Kwartler v. Department of Veterans
Affairs, 108 M.S.P.R. 330, ¶¶ 12-14 (2008) (finding that the administrative judge
properly denied the appellant’s request for, inter alia, compensatory damages);
Carson v. Department of Energy , 92 M.S.P.R. 440, ¶ 1 (2002) (denying the appellant’s
motion for consequential damages), aff’d, 64 F. App’x 234 (Fed. Cir. 2003). This error,
however, did not prejudice the appellant’s substantive rights because the administrative
judge’s wording does not change the fact that the appellant is not entitled to
consequential damages. See Panter v. Department of the Air Force , 22 M.S.P.R. 281,
282 (1984) (finding that an adjudicatory error which is not prejudicial to a party’s
substantive rights provides no basis for reversal of the initial decision).
3
0135-I-1, Initial Appeal File (IAF), Tabs 8-9. The administrative judge’s
decision was affirmed by the U.S. Court of Appeals for the Federal Circuit in
Ogburn v. Office of Personnel Management , 750 F. App’x 990 (Fed. Cir. 2018).3
On the record before us, the appellant is not a prevailing party.
For the first time on review, the appellant requests compensatory damages.
PFR File, Tab 1 at 4. An appellant may recover compensatory damages when she
prevails in a Board appeal based on one of the following: (1) a finding of
intentional discrimination under Title VII of the Civil Rights Act of 1964; (2) a
finding that the agency failed to make a reasonable accommodation for a qualified
disabled person; (3) a finding of illegal retaliation for the appellant’s protected
equal employment opportunity activity; or (4) where the Board orders corrective
action in a whistleblower appeal under 5 U.S.C. § 1221. 5 C.F.R.
§§ 1201.201(d), 1201.202(c). The instant appeal did not concern any of these
situations. IAF, Tab 9. Accordingly, her request for compensatory damages is
denied.
The appellant also takes issue with an OPM letter dated May 25, 2012.
PFR File, Tab 3 at 5. Below, the appellant included two letters from OPM dated
May 25, 2012, which (1) informed her that her application for disability
retirement under the Federal Employees Retirement System was approved and
provided her information regarding transitioning from employment to retirement,
and (2) a description of the nature of her disability. IAF, Tab 1 at 14-17. The
appellant’s concerns with the correspondence are not clear. PFR File, Tab 3 at 5.
However, the Board’s jurisdiction is not plenary; it is limited to those matters
over which it has been given jurisdiction by law, rule or regulation . Maddox v.
3 The appellant also filed an appeal concerning the calculation of her annuity, which the
administrative judge denied. Ogburn v. Office of Personnel Management , MSPB
Docket No. DC-0841-19-0345-I-1, Initial Decision (July 8, 2019). The Board will issue
a separate final decision regarding her petition for review in that appeal. The Board
may take official notice of matters that can be verified, including documents or actions
in other Board appeals. Wofford v. Department of Justice , 115 M.S.P.R. 468, ¶ 5 n.4
(2010); see 5 C.F.R. § 1201.64.
4
Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). In the absence
of any clear explanation of the appellant’s concerns regarding this
correspondence, or how this correspondence specifically relates to the issue of
consequential damages, the Board lacks jurisdiction to address her concerns.
The appellant also argues that the initial decision is invalid because it is
unsigned. PFR File, Tab 3 at 8-10 & n.2. Contrary to the appellant’s assertion,
the initial decision in the hard copy file contains the administrative judge’s
signature. Ogburn v. Office of Personnel Management , MSPB Docket No.
DC-0841-18-0135-P-1, Appeal File (P-1 AF), Tab 3, Addendum Initial Decision
at 3. Because the appellant is an e-filer, however, the electronic version of the
initial decision that she received contained the electronic version of the
administrative judge’s signature, evidenced by the use of the designation “/s/.”
Id.; see U.S. Merit Systems Protection Board Judges’ Handbook, Chapter 12,
§ 2(i) (“In cases in which the parties are served electronically, the [initial
decision] . . . should be ‘signed’ /s/.”) (last updated October 2019). Because the
administrative judge properly signed the initial decision, the appellant’s argument
is without merit.
Finally, the appellant refers to the docket number in the instant case—
emphasizing the “P” in the docket number—as fraudulent and invalid. PFR File,
Tab 3 at 8. In accordance with its usual practice, the Board assigned a new
docket number—with the letter “P”—to the appellant’s motion for damages. P-1
AF, Tabs 1-2. The docket number is not fraudulent or invalid, and the appellant’s
assertion is not a basis for granting the petition for review. We have considered
the appellant’s remaining arguments regarding her entitlement to costs and/or
expenses on review, but none warrant a different outcome. For the reasons stated
herein and in the initial decision, we deny the petition for review and affirm the
5
initial decision. The appellant is not entitled to consequential damages,
compensatory damages, costs, or expenses.4
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4 On March 1, 2021, the appellant filed pleadings with the Board seeking to withdraw
her petition for review. PFR File, Tabs 7-8. Thereafter, on March 3, 2021, the Office
of the Clerk of the Board issued an order requiring the appellant to confirm her intent to
withdraw the petition for review and her understanding that any withdrawal is with
prejudice to refiling with the Board. PFR File, Tab 10. In response, the appellant
confirmed that she did not wish to withdraw her petition for review. PFR File, Tab 11.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
7
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | OGBURN_LAUNA_G_DC-0841-18-0135-P-1_Final_Order.pdf | 2024-01-10 | LAUNA GOLDDEEN OGBURN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0841-18-0135-P-1, January 10, 2024 | DC-0841-18-0135-P-1 | NP |
2,539 | https://www.mspb.gov/decisions/nonprecedential/OGBURN_LAUNA_G_DC-0841-19-0345-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAUNA GOLDDEEN OGBURN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0841-19-0345-I-1
DATE: January 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
L
auna Golddeen Ogburn , Woodbridge, Virginia, pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) that denied her request for an adjustment to her 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 petition for review, the appellant does not challenge the administrative
judge’s finding that she failed to provide any evidence or argument regarding the
merits of OPM’s reconsideration decision. Initial Appeal File (IAF), Tab 29,
Initial Decision at 4; Petition for Review (PFR) File, Tab 1. Nor does she
provide on review any substantive evidence or argument to support her claim that
OPM erred in its calculation of her annuity. PFR File, Tab 1. Accordingly, we
find that the appellant has failed to meet her burden of establishing by
preponderant evidence that OPM incorrectly calculated her annuity. See 5 C.F.R.
§ 1201.56(b)(2)(ii) (providing that, in appeals from OPM reconsideration
decisions involving retirement benefits, the appellant bears the burden of proving
her entitlement to benefits).
We have considered the appellant’s other arguments on review, but none
warrant a different outcome. For example, the appellant references another of her
appeals that went before the U.S. Court of Appeals for the Federal Circuit. PFR
File, Tab 1 at 8, 11. We believe that she is referring to the decision in Ogburn v.
Merit Systems Protection Board , 750 F. App’x 990, 991-92 (Fed. Cir. 2018), in
which the court affirmed the dismissal for lack of jurisdiction of the appellant’s2
prior appeal in Ogburn v. Office of Personnel Management , MSPB Docket No.
DC-0841-18-0135-I-1, based on OPM’s rescission of a prior reconsideration
decision. The court’s decision does not concern the present appeal, which is
based on OPM’s new, February 5, 2019 reconsideration decision. IAF, Tab 12
at 8-10.
The appellant also takes issue with an OPM letter dated May 25, 2012.
PFR File, Tab 1 at 7. Although unclear, we believe that she is referring to OPM’s
letter that granted her application for disability retirement benefits or a letter
referencing her diagnosis. IAF, Tab 12 at 30-33. The appellant’s concerns with
the correspondence are not clear. However, the Board’s jurisdiction is not
plenary; it is limited to those matters over which it has been given jurisdiction by
law, rule, or regulation . Maddox v. Merit Systems Protection Board , 759 F.2d 9,
10 (Fed. Cir. 1985). A petition for review must contain sufficient specificity to
enable the Board to ascertain whether there is a serious evidentiary challenge
justifying a complete review of the record . Tines v. Department of the Air Force ,
56 M.S.P.R. 90, 92 (1992). In the absence of such specificity, we will not further
consider this argument.
The appellant also refers to the docket numbers in her various Board
appeals as fraudulent or invalid, and she appears to indicate that such fraud
constitutes a continuing felony against her. PFR File, Tab 1 at 4-5, 9-10. The
Board has assigned the docket numbers in the appellant’s appeals in accordance
with its usual practice, and it is not aware of any basis under which the
assignment of docket numbers is either fraudulent or invalid.
The appellant also indicates that she spent over $4,000 in administrative
and copying costs. PFR File, Tab 1 at 7. In another appeal, the appellant sought
consequential damages, which an administrative judge dismissed. Ogburn v.
Office of Personnel Management , MSPB Docket No. DC-0841-18-0135-P-1,
Initial Decision (Feb. 27, 2019). The appellant filed a petition for review in that3
matter, and we will issue a separate final decision regarding her request for
damages.
We have considered the appellant’s remaining assertions raised on review,
including that she has not reached retirement age and that she has never been
identified as having a disability, PFR File, Tab 1 at 8, but we find that they do not
warrant a different outcome.2 For the reasons stated above, we deny the petition
for review and affirm the initial decision.3
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 The appellant includes with her petition for review correspondence from the Clerk of
the Court for the U.S. Court of Appeals for the Federal Circuit. PFR File, Tab 1
at 13-14. These documents are dated before the initial decision was issued. 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 has not made such a showing, and we need
not consider these documents on review.
3 On March 1, 2021, the appellant filed pleadings with the Board apparently seeking to
withdraw her petition for review. PFR File, Tabs 8-9. Thereafter, on March 3, 2021,
the Office of the Clerk of the Board issued an order requiring the appellant to confirm
her intent to withdraw the petition for review and her understanding that any withdrawal
is with prejudice to refiling with the Board. PFR File, Tab 10. In response, the
appellant confirmed that she did not wish to withdraw her petition for review. PFR
File, Tab 11.
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
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.8 | OGBURN_LAUNA_G_DC-0841-19-0345-I-1_Final_Order.pdf | 2024-01-10 | LAUNA GOLDDEEN OGBURN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0841-19-0345-I-1, January 10, 2024 | DC-0841-19-0345-I-1 | NP |
2,540 | https://www.mspb.gov/decisions/nonprecedential/Picou_EvelynDC-3443-19-0286-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EVELYN PICOU,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-3443-19-0286-I-1
DATE: January 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
E
velyn Picou , Fort Bragg, North Carolina, pro se.
Appeals Officer , 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.2 On petition for review, the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 Although the appellant appeared to be challenging actions by her employing agency,
the Department of the Army, the Board’s Washington Regional Office docketed this
appeal against the Office of Personnel Management. Initial Appeal File, Tab 1 at 2, 6.
The appellant did not object to that action. The administrative judge adjudicated the
appeal as though it were an action alleging error by the Department of the Army.
appellant reiterates the arguments that she made below that the Board has
jurisdiction over 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 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
Because the Board clearly lacks jurisdiction over this appeal for the reasons stated in
the initial decision, the Board would not have jurisdiction if Department of the Army
were the responding agency. Accordingly, we discern no basis to remand or forward
this appeal to the regional office to allow the Department of the Army to respond to the
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
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit 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 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.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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Picou_EvelynDC-3443-19-0286-I-1_Final_Order.pdf | 2024-01-09 | EVELYN PICOU v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-3443-19-0286-I-1, January 9, 2024 | DC-3443-19-0286-I-1 | NP |
2,541 | https://www.mspb.gov/decisions/nonprecedential/Tavakkol_SaeedSF-0752-19-0587-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAEED TAVAKKOL,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-19-0587-I-1
DATE: January 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Saeed Tavakkol , Federal Way, Washington, pro se.
Steven B. Schwartzman , Seattle, Washington, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his alleged involuntary resignation appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
find the issues of jurisdiction and timeliness inextricably intertwined, we
AFFIRM the initial decision.
BACKGROUND
The appellant was an Operations Industrial Engineer with the U.S. Postal
Service’s Seattle Network Distribution Center (NDC). Initial Appeal File (IAF),
Tab 10 at 41. He filed the instant appeal, in which he alleged that, beginning in
December of 2013, he was the victim of harassment based on race and national
origin and in retaliation for whistleblowing and Equal Employment Opportunity
(EEO) activity. IAF, Tab 6 at 4-24, Tab 8 at 8-14. He claimed that this
harassment included the agency issuing him a letter of warning and a letter of
concern, and placing him on a performance improvement plan (PIP). IAF, Tab 6
at 12, 15-16.
He also alleged verbal harassment, such as his work -assigned “mentor”
informing the appellant that he carried a gun in his car at all times and claiming
the appellant would “get a knife in the back.” Id. at 4-5, 20. Moreover, he
alleged that the agency ordered him to perform custodial and maintenance work,
forced him to take unnecessary online communication courses, surveilled him at
work, and interrogated him and that he was not allowed to speak on
teleconferences. Id. at 6-8, 10-13, 15-16. He further alleged that the agency2
failed to promote him and that he was humiliated in a meeting following his filing
of a worker’s compensation claim. Id. at 5-6, 13-14.
According to the appellant, as a result of these actions, he was diagnosed
with various medical problems, including a generalized anxiety disorder, inability
to concentrate with dizziness, neck pain, and insomnia. Id. at 6. Allegedly as a
result of these conditions, he requested sick leave from February 2 to May 23,
2015. IAF, Tab 10 at 52, 58. On February 19, 2015, he submitted medical
documentation substantiating his need for leave through May 23, 2015, and the
agency approved his request. Id. at 52.
The appellant’s manager also construed this medical documentation as a
request for reasonable accommodation. Id. at 57. Accordingly, he referred the
appellant to the agency’s Seattle District Reasonable Accommodation Committee
(DRAC). Id. In March 2015, the DRAC denied the appellant’s request for
reasonable accommodation. IAF, Tab 10 at 55-56. In doing so, it found that the
appellant was a person with a disability, but that he was not entitled to the sole
requested accommodation of working under someone other than the Plant
Manager of the NDC. Id. The appellant filed an EEO complaint with the agency,
alleging that the denial of accommodation and other actions preceding it were the
result of discrimination and reprisal. Id. at 9, 17-18.
The appellant did not return to work on May 26, 2015, the first workday
following the period of incapacitation covered by his medical documentation.
The agency placed him in an absent without leave (AWOL) status beginning on
May 26, 2015. Id. at 51. The appellant never returned to work, and he eventually
resigned, effective July 20, 2015. Id. at 41-47. He alleges here that his
resignation was involuntary.
On March 29, 2019, an administrative judge of the Equal Employment
Opportunity Commission (EEOC) granted summary judgment in favor of the
agency on the appellant’s EEO complaint. Id. at 17-38. The agency subsequently
issued a notice of final action on the matter, implementing the EEOC’s decision.3
Id. at 9-10. The issues presented in the EEO case involve many of the same
allegations of discrimination, retaliation, and hostile work environment at issue in
this appeal. Id. at 18-19. However, the administrative judge’s decision and the
agency’s notice of final action in the appellant’s EEO case did not address his
alleged involuntary resignation, and the agency did not process the EEO
complaint as a “mixed case.”2 Neither the FAD nor the EEOC decision informed
the appellant of his appeal rights before the Board. Id. at 9-10, 37-38.
The appellant subsequently filed the instant appeal on July 26, 2019. IAF,
Tab 1. The administrative judge informed the appellant that his appeal might be
untimely and set forth the appellant’s burden of proving, as a Postal Service
employee, that he had Board appeal rights. IAF, Tab 3, Tab 12. After the parties
responded, the administrative judge issued an initial decision dismissing the
appeal for lack of jurisdiction without holding a hearing. IAF, Tab 16, Initial
Decision (ID) at 1.
The administrative judge found that the appellant was a Postal management
“employee” with adverse action appeal rights under 5 U.S.C. chapter 75. ID
at 9-10. The administrative judge then found that the appellant failed to
nonfrivolously allege that the agency’s conduct rose to the level of coercion
necessary to overcome the presumption that his resignation was voluntary. ID
at 12-13. He also disagreed with the appellant’s argument that the denial of his
reasonable accommodation request effectively took away his job. ID at 10.
Thus, the administrative judge dismissed the appeal without holding the
2 A mixed case arises when an appellant has been subject to an action that is appealable
to the Board, and he alleges that the action was effected, in whole or in part, because of
discrimination. Miranne v. Department of the Navy , 121 M.S.P.R. 235, ¶ 8 (2014). An
appellant has two options when filing a mixed case: he may initially file a mixed -case
complaint with the agency, followed by an appeal to the Board, or he may file a
mixed-case appeal with the Board and raise his discrimination claim in connection with
his appeal. Id. When an employee files a timely mixed-case complaint with the
agency, the employing agency must issue a final agency decision on the employee’s
discrimination claims and provide the employee with notice of his rights to file an
appeal with the Board. Id., ¶ 9; 29 C.F.R. § 1614.302(d)(3).4
appellant’s requested hearing. IAF, Tab 1 at 2; ID at 1, 14. Because of his
finding regarding jurisdiction, the administrative judge did not address whether
the appeal was untimely filed. ID at 14 n.3.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He repeats many of his arguments from below, asserts that the initial
decision contains numerous factual errors, argues that his mental and physical
health problems were exacerbated by the agency and prevented him from
working, and claims that his Official Personnel File (OPF) denotes that he was
terminated as opposed to having resigned. Id. at 4-14. The agency has submitted
an untimely response to the petition for review. PFR File, Tab 2 at 1, Tab 4;
5 C.F.R. § 1201.114(e). The Office of the Clerk of the Board notified the agency
that its response was untimely and provided the agency an opportunity to submit a
motion to accept the response as timely or to waive the time limit. PFR File,
Tab 5. The agency has not filed such a motion. Therefore, we have not
considered the agency’s response. See 5 C.F.R. § 1201.114(g) (explaining that an
untimely pleading on review generally must be accompanied by a motion showing
good cause for the untimely filing).
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge found that the appellant, a Postal Service
employee, was eligible to file a Board appeal under 5 U.S.C. chapter 75 because
he was a management or supervisory employee with at least 1 year of current
continuous service in the same or similar position. ID at 5-6. The parties do not
challenge this finding, and we see no reason to disturb it on review.
The appellant failed to nonfrivolously allege that his resignation was the result of
a hostile work environment.
The appellant’s arguments involve an allegation that he was subjected to a
hostile work environment. IAF, Tab 6 at 4-24, Tab 8-14; PFR File, Tab 1 at 6-7,
11-12. The administrative judge found that the appellant failed to nonfrivolously5
allege that the agency’s actions and conduct was so intolerable that he had no
choice but to resign when he did. ID at 13. We agree.3
An employee-initiated action, such as a retirement or resignation, is
presumed to be voluntary and thus outside the Board’s jurisdiction, unless the
employee presents sufficient evidence to establish that the action was obtained
through duress or coercion or shows that a reasonable person would have been
misled by the agency. Gibeault v. Department of the Treasury , 114 M.S.P.R.
664, ¶ 6 (2010). An appellant is entitled to a hearing on the issue of Board
jurisdiction over an appeal of an alleged involuntary separation only if he makes a
nonfrivolous allegation casting doubt on the presumption of voluntariness. Id. A
nonfrivolous allegation is an allegation of fact that, if proven, could establish a
prima facie case that the Board has jurisdiction over the appeal. Id. However,
the appellant ultimately bears the burden of establishing jurisdiction over his
appeal by a preponderance of the evidence. Vitale v. Department of Veterans
Affairs, 107 M.S.P.R. 501, ¶ 17 (2007); 5 C.F.R. § 1201.56(b)(2)(i)(A).
Here, the appellant did not allege that he was misled by the agency.4
Instead, he argues that the agency created a hostile work environment that forced
him to resign. Coercive involuntariness is a narrow doctrine. Brown v. U.S.
Postal Service, 115 M.S.P.R. 609, ¶ 10, aff’d per curiam , 469 F. App’x 852 (Fed.
3 The appellant suggests that he was forced to resign because his OPF states
“Terminated” as his “Employment Status.” PFR File, Tab 1 at 13. We are not
persuaded. The appellant submitted a resignation, which the agency processed as such.
IAF, Tab 10 at 41-42. Although the agency may have designated the appellant as
“terminated” on his OPF, without further explanation, this reference appears to reflect
that he is no longer an agency employee.
4 The appellant asserts misrepresentation on review, but appears to be citing to the legal
standard for involuntary resignations. PFR File, Tab 1 at 14. He makes no specific
allegations of misrepresentation. Id. Similarly, he used the word “misrepresentation”
below when making certain allegations of harassment. E.g., IAF, Tab 6 at 5-6.
However, neither below nor on review did he claim he relied on an agency
misrepresentation in making his decision to retire. See Morrison v. Department of the
Navy, 122 M.S.P.R. 205, ¶¶ 10, 13 (2015) (finding an appellant was entitled to a
jurisdictional hearing when he made a nonfrivolous allegation that his retirement was
involuntary because he materially relied on agency misinformation).6
Cir. 2011). To establish involuntariness on the basis of coercion, an employee
must show that the agency effectively imposed the terms of his resignation, he
had no realistic alternative but to resign, and his resignation was the result of
improper acts by the agency. Vitale, 107 M.S.P.R. 501, ¶ 19. The touchstone of
the voluntariness analysis is whether, considering the totality of the
circumstances, factors operated on the employee’s decision-making process that
deprived him of freedom of choice. Id. When alleging involuntary resignation
due to harassment and a hostile work environment, the appellant must
demonstrate that the employer engaged in a course of action that made working
conditions so difficult or unpleasant that a reasonable person in his position
would have felt compelled to retire. Id., ¶ 20. The Board addresses allegations of
discrimination and reprisal for either prior EEO activity or whistleblowing
activity in connection with an alleged involuntary retirement only insofar as those
allegations relate to the issue of voluntariness. Id. Generally, a feeling of being
unfairly criticized and difficult or unpleasant working conditions are not so
intolerable as to compel a reasonable person to retire or resign. Miller v.
Department of Defense , 85 M.S.P.R. 310, ¶ 32 (2000).
Although the appellant below labeled the agency’s conduct as harassment,
duress, and coercion, and continues to do so on review, the specific factual
allegations on which he relies do not support his claim. IAF, Tab 7 at 4; PFR
File, Tab 1 The Board has found that an appellant must make specific and
detailed allegations, and that vague, conclusory, unsupported, and pro forma
allegations of alleged wrongdoing do not meet the nonfrivolous pleading
standard. Clark v. U.S. Postal Service , 123 M.S.P.R. 466, ¶¶ 6-7 (2016), aff’d
per curiam, 679 F. App’x 1006 (Fed. Cir. 2017), overruled on other grounds by
Cronin v. U.S. Postal Service , 2022 MSPB 13, ¶ 20 n. 11 . Therefore, we have
considered those specific factual allegations, and generally disregarded the
appellant’s legal characterizations of the agency’s action as meeting the legal
standard for an involuntary resignation. The appellant provides a lengthy7
timeline, and therefore we limit ourselves to some examples to illustrate the
deficiency of his assertions.
As one example, the appellant asserted that an agency manager accused
him of being a terrorist. IAF, Tab 6 at 22. He repeats this argument on review.
PFR File, Tab 1 at 7. The administrative judge did not address this specific
claim. However, in the affidavit from which the appellant draws his conclusion,
the individual merely states that, through a conversation with the appellant, he
learned that the appellant was “involved as a leading figure in overthrowing the
Government of Iran, how he is not allowed back in the country and his
involvement in some sort of activity with American embassy in Iran.” Id. This is
significantly different than calling the appellant a terrorist. The appellant does
not deny the underlying information, or explain how the affiant’s knowledge of
this information amounts to an accusation that the appellant is a terrorist.
Similarly, the appellant asserted that he was “repeatedly humiliated in
public meetings” for filing an allegedly frivolous workers’ compensation claim.
IAF, Tab 6 at 5. The appellant does not raise this argument on review, and the
administrative judge did not specifically address it. In support of this allegation,
the appellant provided an excerpt from an affidavit completed by one of the
managers who allegedly humiliated him. The manager stated in his affidavit that
he would routinely discuss in staff meetings that “some frivolous [workers’
compensation] claims are rejected.” Id. at 5-6. This appears to be a statement of
fact and the appellant provides no evidence suggesting it was directed at him.
The appellant also re-raises incidents that the administrative judge
concluded were too remote in time from the appellant’s resignation or that the
appellant could have pursued through his then-ongoing EEO complaint against
the agency. ID at 2, 10-13; PFR File, Tab 1 at 7-12. We agree with the
administrative judge that, under these circumstances, the appellant failed to allege
facts that would cause the reasonable person in his position to retire. 8
A resignation is not involuntary when an appellant has the option to stand
and fight the alleged discrimination, retaliation, and harassment through an EEO
complaint rather than resign. See Axsom v. Department of Veterans Affairs ,
110 M.S.P.R. 605, ¶ 17 (2009) (concluding an appellant had the option to stand
and fight rather than resign when he had an EEO action pending well before his
resignation). Further, alleged incidents of discrimination and harassment
preceding a decision to resign by several months figure only tangentially into a
resignation decision. Id., ¶ 16. A period of extended leave during which an
employee has little, if any, contact with the allegedly hostile supervisors in the
months leading up to his decision to resign further weakens any inference that
any alleged harassment and discrimination on their part weighed heavily in the
employee’s decision. Id. We find all of these circumstances present here.
As one example, the appellant asserted that his “mentor” made comments
such as “go back to your country,” that the appellant did not “have the right
accent,” and that the appellant needed to “play the game otherwise people [will]
put a knife in your back.”5 Id. at 4. He repeats this argument on review. PFR
File, Tab 1 at 6-7. We agree with the appellant that, as alleged, the first two of
these three comments are unacceptable in the workplace. However, the focus of
an alleged involuntary resignation is on the circumstances immediately preceding
the appellant’s action. Miller, 85 M.S.P.R. 310, ¶ 10. Here, the appellant fails to
identify when these comments were made, and suggests they occurred throughout
his time at the agency dating back to 2013. IAF, Tab 6 at 4. The appellant
ceased working on February 2, 2015. He resigned over 5 months later. IAF,
Tab 10 at 41-47. This time lapse undercuts the appellant’s assertion that these
workplace incidents at least 5 months earlier, and potentially years earlier, caused
5 Regarding the knife comment, the “mentor” stated in the affidavit excerpt that he “was
trying to make [the appellant] understand, the different culture, different ethnic
background.” IAF, Tab 6 at 4. This explanation is drastically different than
referencing a literal knife in the back.9
him to retire. Searcy v. Department of Commerce , 114 M.S.P.R. 281, ¶ 13
(2010).
The appellant also asserted that sometime between March and October
2014, his mentor told him that he carried a gun in his car at all times, which the
appellant perceived as a threat. IAF, Tab 6 at 4-5. He argues on review that
management failed to take any action to address his safety concerns. PFR File,
Tab 1 at 7. He also realleges that the agency harassed him by presenting him
with, and then placing him on, a PIP in November and December 2014. IAF,
Tab 6 at 9-10; PFR File, Tab 1 at 9-10. The appellant raised these claims in his
EEO complaint, as well as in his initial appeal. IAF, Tab 10 at 18-19, 27-28,
30-31.
As for the mentor’s comment about keeping a gun in his car, although very
concerning, this event occurred at a minimum 8 months before the appellant’s
resignation, and potentially predated his resignation by over a year. IAF, Tab 6
at 4-5; see Miller, 85 M.S.P.R. 310, ¶ 10. While management’s failure to address
the appellant’s safety concerns is troubling, this failure likewise occurred months
prior to his resignation. Further, an employee is not guaranteed a stress -free
working environment. Brown, 115 M.S.P.R. 609, ¶ 15; see Baldwin,
109 M.S.P.R. 392, ¶¶ 19-20 (2008) (finding that an appellant who alleged he was
assigned to perform a difficult cleaning task without assistance, unjustifiably
threatened with discipline, subjected to unwarranted investigations, and
accompanied by agency police at his worksite failed to nonfrivolously allege that
a reasonable person in his position would have been compelled to resign); Miller,
85 M.S.P.R. 310, ¶ 32 (observing that difficult or unpleasant working conditions
are generally not so intolerable as to compel a reasonable person to resign).
The appellant argues on review that he was too ill to pursue his EEO claim.
PFR File, Tab 1 at 11-12. We are not persuaded. His assertion is belied by his
statement that he continued to pursue his EEO complaint by amending it in July
2015, to include his alleged involuntary resignation. Id. at 6. Further, his10
resignation letter, which he submitted to the agency the same month, contains
detailed allegations reflecting the appellant’s ability to continue to advocate on
his own behalf. IAF, Tab 10 at 42-47. In that letter, he asserted that many of the
same events he raises here led to his resignation, such as reporting safety
violations, his illness, and his placement on a PIP. Id. at 43-44.
Accordingly, we agree with the administrative judge that the environment
and events described by the appellant do not rise to the level of coercion
necessary to overcome the presumption that his resignation was voluntary.
The appellant failed to nonfrivolously allege that his resignation was the result of
a denial of reasonable accommodation.
The administrative judge found that the appellant failed to allege that the
agency denied him a reasonable accommodation, thus forcing him to resign. ID
at 10. On review, the appellant questions the fact that his manager referred him
to the DRAC for consideration of his potential reasonable accommodation
request. PFR File, Tab 1 at 8. He also argues that the DRAC process, and the
denial of his requested accommodation by the DRAC, effectively coerced him to
retire. Id. at 4-6, 12.
All constructive adverse action claims 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. Bean v. U.S. Postal
Service, 120 M.S.P.R. 397, ¶ 8 (2013). The denial of a reasonable
accommodation that would have permitted an employee to continue working
despite his medical conditions, and that leads to the employee’s resignation, is a
wrongful action that can be the basis of an alleged involuntary retirement claim.
Hosozawa v. Department of Veterans Affairs , 113 M.S.P.R. 110, ¶¶ 2, 6-7 (2010)
(finding that an appellant nonfrivolously alleged that her retirement was
involuntary when she alleged that the agency denied her request for a reasonable
accommodation that would have permitted her to continue to work full-time11
despite her medical conditions). However, here the appellant has not alleged any
facts that would lead to the conclusion that the agency’s actions were wrongful.
An agency is required to reasonably accommodate an employee’s medical
conditions if he can otherwise perform his job. 29 C.F.R. §§ 1630.2(m) (defining
a “qualified” individual as one who can perform the essential functions of the
position in question with or without reasonable accommodation), 1630.9(a)
(setting forth the requirement to provide reasonable accommodation to an
“otherwise qualified” employee). The medical documentation the appellant
submitted to the agency in February 2015 indicated that, in addition to requiring
leave, the appellant needed “a change in employment” and to return to work in “a
different position.” IAF, Tab 10 at 57. Thus, the agency acted properly by
initiating discussions with the appellant regarding reasonable accommodation.
See Rosario-Fabregas v. Department of the Army , 122 M.S.P.R. 468, ¶¶ 13-19
(2015) (finding that an agency acted properly by preventing an appellant from
returning to work when he did not provide medical documentation the agency
needed to determine his ability to perform his essential job functions and whether
he posed a direct threat due to his medical condition), aff’d, 833 F.3d 1342 (Fed.
Cir. 2016); 29 C.F.R. § 1630.2(o)(2)-(3) (listing types of reasonable
accommodation, including job restructuring and reassignment to a vacant
position, and stating that “[t]o determine the appropriate reasonable
accommodation it may be necessary for the covered entity to initiate an informal,
interactive process” with the disabled individual).
The appellant’s only requested accommodation was to return to work in a
position that did not report to the NDC Plant Manager. IAF, Tab 10 at 55-56. As
the DRAC held, the EEOC’s guidance states that, in most circumstances, an
employer does not need to change a person’s supervisor as a form of reasonable
accommodation. Id.; EEOC, Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act,12
Question 33 (Oct. 17, 2002). Accordingly, the DRAC did not act wrongfully in
denying his request for accommodation. IAF, Tab 10 at 55-56.
The appellant suggests on review that the DRAC ignored his requests
regarding his reasonable accommodation request, but he provides no specifics.
PFR File, Tab 1 at 12. We find his statement to be conclusory, and thus
frivolous. See 5 C.F.R. § 1201.4(s)(1) (explaining that a nonfrivolous allegation
is one that is more than conclusory). The agency referred the appellant to the
DRAC on February 11, 2015, within 2 days after he submitted medical
documentation that suggested he might require a reasonable accommodation to
perform his duties. IAF, Tab 10 at 57. The DRAC proceeded to communicate
with the appellant, gather information from him, and issue a decision by the end
of March 2015. Id. at 55-56. The decision provided the appellant with the option
to request reconsideration through a human resources manager. Id. at 56. The
appellant does not state exactly what steps he took following the DRAC decision
and does not claim he requested reconsideration of the DRAC decision. Thus, we
lack any specific information from which to conclude that the agency acted
improperly by not responding to the appellant. See Rosario-Fabregas,
122 M.S.P.R. 468, ¶ 18 (explaining that an appellant’s failure to engage in the
interactive process prevented an agency from identifying a reasonable
accommodation).
As the administrative judge observed, the agency ordered the appellant to
return to work after May 23, 2015, absent continued medical restrictions
justifying additional leave. Id. at 51; ID at 10. There is no evidence that the
agency suggested that he no longer had a job. IAF, Tab 10 at 51; ID at 10.
Accordingly, the appellant has failed to nonfrivolously allege that his resignation
was the result of a wrongful processing or denial of his reasonable
accommodation request.6
6 The administrative judge, in finding the Board lacked jurisdiction, declined to address
the issue of timeliness. ID at 14 n.3. We modify this language in the initial decision to
find that the issues of timeliness and jurisdiction are inextricably intertwined. See13
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).
Brown, 115 M.S.P.R. 609, ¶ 5 (finding timeliness and jurisdiction inextricable
intertwined in an involuntary retirement appeal because the resolution of the timeliness
issue depends on whether the appellant was subjected to an appealable action). We
therefore do not separately address the timeliness issue.
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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on15
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or16
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a 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
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.18 | Tavakkol_SaeedSF-0752-19-0587-I-1_Final_Order.pdf | 2024-01-09 | SAEED TAVAKKOL v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-19-0587-I-1, January 9, 2024 | SF-0752-19-0587-I-1 | NP |
2,542 | https://www.mspb.gov/decisions/nonprecedential/Price_Mishaun_PH-0714-18-0302-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MISHAUN PRICE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0714-18-0302-I-1
DATE: January 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Melissa Price , Brockton, Massachusetts, for the appellant.
Michael Potter , Providence, Rhode Island, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the appellant has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Price_Mishaun_PH-0714-18-0302-I-1__Final_Order.pdf | 2024-01-09 | MISHAUN PRICE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0714-18-0302-I-1, January 9, 2024 | PH-0714-18-0302-I-1 | NP |
2,543 | https://www.mspb.gov/decisions/nonprecedential/Holloran_Kelli_K_CH-3443-19-0555-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KELLI HOLLORAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-3443-19-0555-I-1
DATE: January 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
K
elli Holloran , Florence, Arizona, pro se.
Beth K. Donovan , St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of the agency’s alleged denial of reasonable accommodation
for lack of jurisdiction. On petition for review, the appellant reiterates the
arguments she made below, argues that the administrative judge erred in not
holding a hearing, and argues for the first time on review that the agency’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
decision denying her accommodation of choice forced her to take leave.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). However, we
FORWARD the appellant’s alleged constructive suspension to the regional office
for docketing as a new appeal.
As noted above, the appellant argues for the first time on review that the
agency’s denial of her accommodation of choice, i.e., full-time telework, caused
her to take excessive amounts of sick leave. Petition for Review (PFR) File,
Tab 1 at 4, Tab 4 at 5.2 This could be interpreted as a constructive suspension
2 The appellant also argues for the first time on review that the agency violated her due
process rights and committed harmful procedural error when it denied her
accommodation of choice. PFR File, Tab 1 at 4. The Board generally will not consider
an argument raised for the first time in a petition for review absent a showing that it is
based on new and material evidence not previously available despite the party’s due
diligence. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016); Privette v.
Department of the Air Force , 60 M.S.P.R. 150, 152 (1993) (declining to consider the
appellant’s argument that the agency violated his due process rights because he raised
the claim for the first time on review). In any event, because the appellant fails to
explain her contentions, and therefore fails to identify any due process violation or
harmful error, she provides no basis on review for disturbing the administrative judge’s
determination that she failed to make a nonfrivolous allegation of jurisdiction over her2
claim. See, e.g., Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 8 (2013)
(finding that involuntary leaves of absence may be appealable to the Board under
chapter 75 as constructive suspensions). We have considered the appellant’s
arguments on review because they implicate the Board’s jurisdiction, an issue that
is always before the Board and may be raised by any party or sua sponte by the
Board at any time during a Board proceeding. See Lovoy v. Department of Health
and Human Services , 94 M.S.P.R. 571, ¶ 30 (2003).
Although various fact patterns may give rise to an appealable constructive
suspension, all constructive suspension claims are premised on the proposition
that an absence that appears to be voluntary actually is not. Rosario–Fabregas v.
Department of the Army , 122 M.S.P.R. 468, ¶ 8 (2015), aff’d, 833 F.3d 1342,
(Fed. Cir. 2016). To demonstrate that an absence from work was not voluntary,
and is an actionable constructive suspension, an appellant must show that:
(1) she lacked a meaningful choice in the matter; and (2) it was the agency’s
wrongful actions that deprived her of that choice. Id.; Romero v. U.S. Postal
Service, 121 M.S.P.R. 606, ¶ 8 (2014). 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. Rosario–Fabregas , 122 M.S.P.R.
468, ¶ 8; Romero, 121 M.S.P.R. 606, ¶¶ 8-9. Our reviewing court has specifically
stated that the jurisdictional analysis set forth above is appropriate.
Rosario-Fabregas, 833 F.3d at 1345-47. As noted above, because a constructive
suspension may be a matter within the Board’s jurisdiction, we forward this claim
to the regional office for docketing as a new appeal against the appellant’s
employing agency. See Carriker v Office of Personnel Management ,
106 M.S.P.R. 516, ¶ 8 (2007).
appeal. PFR File, Tab 1 at 4. 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 you wish to challenge the Board’s rulings on your whistleblower claims6
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.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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.8 | Holloran_Kelli_K_CH-3443-19-0555-I-1_Final_Order.pdf | 2024-01-09 | KELLI HOLLORAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-3443-19-0555-I-1, January 9, 2024 | CH-3443-19-0555-I-1 | NP |
2,544 | https://www.mspb.gov/decisions/nonprecedential/Wriglesworth_Sonia_I_DC-1221-18-0285-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SONIA I. WRIGLESWORTH,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-1221-18-0285-W-1
DATE: January 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dennis L. Friedman , Esquire, Philadelphia, Pennsylvania, for the appellant.
Timothy D. Johnson , Esquire, Fort Bragg, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed this individual right of action (IRA) appeal without prejudice subject to
automatic refiling within 30 days after the Board issues a final decision in
Wriglesworth v. Department of the Army , MSPB Docket No. DC-0752-15-0860-
I-2. 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, AFFIRM the initial decision, which
is now the Board’s final decision, 5 C.F.R. § 1201.113(b), and FORWARD this
matter to the regional office for docketing and adjudication as a refiled appeal.
The appellant previously filed a Board appeal under 5 U.S.C. chapter 75
challenging her removal and raising an affirmative defense of whistleblower
reprisal. See Wriglesworth v. Department of the Army , MSPB Docket Nos. DC-
0752-15-0860-I-1, DC-0752-15-0860-I-2. On March 2, 2017, an administrative
judge issued an initial decision affirming the removal and denying the appellant’s
whistleblower reprisal claim based on a determination that she did not establish
by preponderant evidence that she made protected disclosures. Wriglesworth v.
Department of the Army , MSPB Docket No. DC-0752-15-0860-I-2 (I-2), Appeal
File, Tab 6, Initial Decision (ID). The appellant filed a petition for review of that
initial decision. I-2 Petition for Review File, Tab 7.
After subsequently filing a complaint with the Office of Special Counsel
(OSC), the appellant filed the instant request for corrective action alleging that
the agency micromanaged, counseled, investigated, and suspended her in reprisal
for her protected disclosures. See Wriglesworth v. Department of the Army ,
MSPB Docket No. DC-1221-18-0285-W-1, Initial Appeal File (IAF), Tab 1. The
administrative judge found that, in both her complaint to OSC and her request for2
corrective action, the appellant relied on the same six alleged protected
disclosures that she raised in connection with her whistleblower reprisal
affirmative defense challenging her removal. ID at 2; see IAF, Tab 7 at 4 (“The
administrative judge correctly noted that [the appellant’s] instant IRA appeal sets
forth the same purported disclosures that she had set forth in a prior matter[.]”).
Under these circumstances, in which an initial decision addressing whether
the appellant made protected disclosures had already been issued but was not yet
final because it was pending further Board review, the administrative judge held
that it was appropriate to dismiss, on the grounds of adjudicatory efficiency, the
subsequently-filed action without prejudice subject to automatic refiling 30 days
after the Board issued its final decision. ID at 2-3. The administrative judge
found that the appellant’s request that he address anew whether she made
protected disclosures, even for purposes of determining jurisdiction over the
appeal, was exactly the type of relitigation the Board’s adjudicatory efficiency
holdings sought to avoid. ID at 3. Thus, the administrative judge rejected the
appellant’s claim that it would be more efficient to have two separate pending
appeals addressing the same issue with potentially divergent outcomes. Id.
The appellant asserts on review that, “while judicial economy may serve as
a legitimate reason in certain circumstances, in this situation, the invocation of
judicial economy is not appropriate and would work an extreme injustice . . . .”
Petition for Review (PFR) File, Tab 1 at 8. The appellant contends that the
administrative judge “has the wherewithal to determine whether the protected
disclosures . . . satisfy the legal criteria,” and that the administrative judge in the
removal appeal performed no analysis before concluding that the appellant had
not made protected disclosures. Id. at 8-9. The appellant includes with her
petition for review an attachment to an OSC complaint form that sets forth six
disclosures she raised to OSC.2 Id. at 12-16. The agency has filed a response to
2 Because this document was submitted below, IAF, Tab 1, it is not new evidence under
5 C.F.R. § 1201.115(d) and does not warrant granting the petition for review. See
Krawchuk v. Department of Veterans Affairs , 94 M.S.P.R. 641, ¶ 5 n.2 (2003).3
the petition for review, and the appellant has filed a reply to the agency’s
response. PFR File, Tabs 3-4.
Dismissal without prejudice is a procedural option left to the sound
discretion of the administrative judge. Wheeler v. Department of Defense ,
113 M.S.P.R. 519, ¶ 7 (2010); Gingery v. Department of the Treasury ,
111 M.S.P.R. 134, ¶ 9 (2009). The appellant does not dispute the administrative
judge’s finding that she has relied in this IRA appeal on the same six alleged
protected disclosures that she raised in connection with her whistleblower reprisal
affirmative defense challenging her removal. Moreover, the findings made by the
administrative judge in the removal appeal are not subject to challenge in this
separate IRA appeal. Thus, we find that the appellant has shown no abuse of
discretion in the administrative judge’s dismissal of this appeal without prejudice.
See Wheeler, 113 M.S.P.R. 519, ¶ 7 (finding that an administrative judge did not
abuse his discretion in dismissing an appeal pending the Board’s decision on a
petition for review in a separate case that involved a common issue); Gingery,
111 M.S.P.R. 134, ¶ 12 (stating that dismissal without prejudice was appropriate
while awaiting an Office of Personnel Management decision on a related matter).
Concurrent with the issuance of this Final Order, the Board has issued a
Final Order in the appellant’s previously-filed removal appeal. See Wriglesworth
v. Department of the Army , MSPB Docket No. DC-0752-15-0860-I -2, Final Order
(Jan. 9, 2024). Therefore, the condition subsequent set forth by the
administrative judge for automatic refiling has occurred, and we forward this
matter to the regional office for docketing as a timely refiled appeal.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
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 and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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.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 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.9 | Wriglesworth_Sonia_I_DC-1221-18-0285-W-1_Final_Order.pdf | 2024-01-09 | SONIA I. WRIGLESWORTH v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-1221-18-0285-W-1, January 9, 2024 | DC-1221-18-0285-W-1 | NP |
2,545 | https://www.mspb.gov/decisions/nonprecedential/Wriglesworth_Sonia_I_DC-0752-15-0860-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SONIA I. WRIGLESWORTH,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-0752-15-0860-I-2
DATE: January 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dennis L. Friedman , Esquire, Philadelphia, Pennsylvania, for the appellant.
Timothy D. Johnson , Esquire, Fort Bragg, 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
affirmed the agency’s removal action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to vacate the portion of the initial decision finding that the agency
proved by clear and convincing evidence that it would have taken the same action
in the absence of any whistleblower disclosures, we AFFIRM the initial decision.
BACKGROUND
The agency removed the appellant from her GS-15 Family Programs
Director position with the Family Programs Directorate (FPD) of the U.S. Army
Reserve Command based on a charge of Conduct Unbecoming a Federal
Employee and Supervisor. Wriglesworth v. Department of the Army , MSPB
Docket No. DC-0752-15-0860-I-1, Initial Appeal File (IAF), Tab 6 at 78, 80-88,
126-33. The agency asserted that the appellant (a) as a direct result of her
negative leadership, created a toxic work environment; (b) engaged in leadership
intimidation, humiliation, and/or fear of reprisal; (c) failed to provide proper
direction, support, and training to employees and discouraged employee
teamwork, which gave the appearance of ensuring that the employees failed at
tasks; (d) acted in a way that resulted in a perception of favoritism; (e) engaged in
the improper use of contractor staff, i.e., gave the appearance that she had a
personal services contract; (f) tasked employees and set deadlines that resulted in
uncompensated work time; and (g) delayed filling a critical vacancy and/or
attempted to circumvent the hiring process, which gave the appearance of having
committed a prohibited personnel practice. Id. at 126-33.
3
After a hearing, the administrative judge affirmed the removal action.
Wriglesworth v. Department of the Army , MSPB Docket No. DC-0752-15-0860-
I-2, Appeal File (I-2 AF), Tab 6, Initial Decision (ID) at 1, 100. After setting
forth a detailed description of the evidence in the case, ID at 2-63, the
administrative judge found that the agency proved by preponderant evidence
specifications (a) -(c) and (e)-(f), but did not prove specifications (d) and (g), ID
at 64-77. The administrative judge further found that the agency proved a nexus
between its action and the efficiency of the service, and that the appellant did not
prove reprisal for whistleblowing activity, retaliation for equal employment
opportunity (EEO) activity, or harmful error. ID at 77-94. Finally, the
administrative judge found that the agency properly considered the relevant
aggravating and mitigating factors and imposed a reasonable penalty, i.e.,
removal. ID at 95-99.
The appellant has filed a timely petition for review of the initial decision,
the agency has filed a timely response, and the appellant has filed a timely reply
to the agency’s response.2 Petition for Review (PFR) File, Tabs 7, 9, 13.
ANALYSIS
The agency has proven its charge.
The appellant attacks the credibility of numerous witnesses, asserting that
they were untruthful regarding certain portions of their testimony. PFR File,
Tab 7 at 26-38. Some of the appellant’s allegations in this regard apply to
2 The appellant includes with her petition for review sworn statements she made on
January 7, 2014, and May 1, 2014, correspondence with the agency from 2012, and an
undated rebuttal of the agency’s charges that appears to include testimony from the
Board hearing. PFR File, Tab 7 at 56-154. At least one of these documents was
submitted below. Compare PFR File, Tab 7 at 60-62, with IAF, Tab 14 at 41-43. It is
not, therefore, new. See Krawchuk v. Department of Veterans Affairs , 94 M.S.P.R. 641,
¶ 5 n.2 (2003); 5 C.F.R. § 1201.114(b). To the extent that the other documents attached
to the petition for review are submitted for the first time on review, the appellant has
not shown that they were previously unavailable despite her due diligence. See
5 C.F.R. § 1201.115(d). Therefore, we have not considered them in our determination.
See Thompson v. Department of the Army , 122 M.S.P.R. 372, ¶ 16 (2015).
4
specifications (d) and (g), which were not sustained. PFR File, Tab 7 at 26-29,
39-41; ID at 66-69, 74-77. Thus, these allegations do not warrant a different
result from the initial decision. 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). Aside from her assertions that several statements made by the
agency’s witnesses at the hearing were untruthful based on other evidence in the
record that the administrative judge did not address, the appellant has not shown
how any alleged untruthful statements she has identified would affect the
outcome in this case. In any event, even assuming that the administrative judge
did not mention some of the testimony or evidence addressed in this section of the
appellant’s petition for review, an administrative judge’s failure to mention all of
the evidence does not mean that he did not consider it in reaching his decision.
See Marques v. Department of Health and Human Services , 22 M.S.P.R. 129, 132
(1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
The appellant further asserts that the administrative judge relied only upon
the demeanor of the witnesses in finding the agency’s witnesses more credible
than her witnesses, and did not address the other factors set forth in Hillen v.
Department of the Army , 35 M.S.P.R. 453, 458 (1987), and resolve disputed
issues of fact. PFR File, Tab 7 at 43-45.3 We disagree.
3 The appellant also asserts that the administrative judge abused his discretion by
denying her motions to compel discovery and her request for two witnesses who knew
about “the facts supporting [her] claims and defenses.” PFR File, Tab 7 at 53-55. The
appellant does not dispute that she did not timely file her motion to compel, but instead
asserts, as she did below, that she should not be penalized because she unilaterally
granted the agency additional time to respond to her discovery requests, which she
contends constituted good cause for a waiver of the motion to compel deadline. Id.
The administrative judge correctly found that the parties did not seek and obtain from
him an extension of the discovery deadlines and had no authority to unilaterally alter
the Board’s orders and regulations; he therefore found that the deadlines remained
unchanged. IAF, Tab 20 at 2-3, Tab 27 at 1-2, Tab 31. The appellant has shown no
abuse of discretion in these rulings. See Pumphrey v. Department of Defense ,
122 M.S.P.R. 186, ¶ 15 (2015); Ludlum v. Department of Justice , 87 M.S.P.R. 56, ¶ 7
(2000), aff’d, 278 F.3d 1280 (Fed. Cir. 2002); Wagner v. Environmental Protection
5
To resolve credibility issues, an administrative judge must identify the
factual questions in dispute, summarize the evidence on each disputed question,
state which version he believes, and explain in detail why he found the chosen
version more credible, considering such factors as: (1) the witness’s opportunity
and capacity to observe the event or act in question; (2) the witness’s character;
(3) any prior inconsistent statement by the witness; (4) a witness’s bias, or lack of
bias; (5) the contradiction of the witness’s version of events by other evidence or
its consistency with other evidence; (6) the inherent improbability of the
witness’s version of events; and (7) the witness’s demeanor. Hillen, 35 M.S.P.R.
at 458. The Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing, and may overturn such
determinations only when it has “sufficiently sound” reasons for doing so. Sabio
v. Department of Veterans Affairs , 124 M.S.P.R. 161, ¶ 38 (2017).
Here, in addition to relying on the witnesses’ demeanor, the administrative
judge noted that their testimony was consistent with each other, unbiased, and
consistent with prior written statements, and that the testimony of the appellant
and her witnesses was not plausible. ID at 64-65, 73. For example, the
administrative judge noted, with respect to one of the witnesses, that she was not
biased, had no motive to fabricate, and gave answers that were thoughtful,
straightforward, consistent with her written statements of record, and
corroborated in relevant part by the other credible witnesses. ID at 17 n.11,
43 n.55. The administrative judge’s analysis of the testimony of many of the
witnesses was followed by his analysis of their sworn or unsworn written
Agency, 54 M.S.P.R. 447, 452 -53 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993).
Moreover, she has not shown that the administrative judge abused his discretion in
denying the witnesses upon finding that their testimony was either not relevant or
cumulative. IAF, Tab 38 at 13-14; see Jenkins v. Environmental Protection Agency ,
118 M.S.P.R. 161, ¶ 26 (2012) (recognizing that an administrative judge has wide
discretion to exclude witnesses when it has not been shown that their testimony would
be relevant and nonrepetitious).
6
statements. ID at 17-34, 43-50, 53-63. Moreover, an administrative judge’s
failure to specifically discuss every Hillen factor does not mean that he failed to
consider them. See Mithen v. Department of Veterans Affairs , 122 M.S.P.R. 489,
¶ 14 (2015), aff’d, 652 F. App’x 971 (Fed. Cir. 2016). Thus, the administrative
judge addressed factors other than demeanor and resolved disputed issues of fact,
and the appellant has not set forth sufficiently sound reasons for overturning the
administrative judge’s credibility determination, and has therefore not shown that
the administrative judge erred in sustaining the charge.
The appellant also contends that specification (a) is vague and unproven,
and makes many of the same allegations that she raised below regarding why she
believes she did not create a toxic work environment. PFR File, Tab 7 at 45-49.
In support of specification (a), the agency referenced the findings of an
investigation, conducted between September 2013 and June 2014, that determined
that the appellant was the primary cause of a negative, toxic climate within the
FPD. IAF, Tab 6 at 126-27. The report of the investigation set forth in great
detail the reasons why the appellant was the primary cause of the negative, toxic
climate. IAF, Tab 32 at 9-81. The agency afforded the appellant the opportunity
to review the documents it relied upon in taking the action. IAF, Tab 6 at 133.
Therefore, we disagree with the appellant’s suggestion that specification (a) was
vague. See McGriff v. Department of the Navy , 118 M.S.P.R. 89, ¶ 32 (2012)
(rejecting the appellant’s assertion that the agency did not provide him with the
specific reasons for the action when the proposal notice referenced an
investigative report that the agency had provided to him), modified on other
grounds by Buelna v. Department of Homeland Security , 121 M.S.P.R. 262,
¶ 18 n.7 (2014). The appellant’s allegations as to why she believes the agency
did not prove specification (a) do not demonstrate error by the administrative
judge, who, as set forth above, relied upon the demeanor of the witnesses and
other corroborating evidence to find that “the overwhelming credible evidence in
this record supports a finding that the appellant engaged in the misconduct as
7
alleged.” ID at 64-66; see Sabio, 124 M.S.P.R. 161, ¶ 38; 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).
The appellant has not proven reprisal for whistleblowing or EEO activity.
The appellant further asserts that the deciding official knew of her
disclosures and that, for the reasons set forth in her closing brief, the agency did
not establish by clear and convincing evidence that it would have removed her in
the absence of her disclosures. PFR File, Tab 7 at 51-52. The administrative
judge, however, found that the appellant did not prove by preponderant evidence
that she reasonably believed she made protected disclosures; he also found that
the agency, in any event, proved by clear and convincing evidence that it would
have removed her in the absence of the disclosures. ID at 80-88. The appellant
has shown no error in these findings.4 Thus, her arguments on review that her
disclosures were a contributing factor in her removal do not establish error in the
initial decision. See Campbell v. Department of the Army , 123 M.S.P.R. 674,
¶ 11 (2016) (requiring an appellant in an adverse action appeal to show by
preponderant evidence that a protected disclosure was a contributing factor in the
agency’s personnel action). Moreover, her reference to arguments raised in her
closing brief does not identify errors in the initial decision and is not a basis for
granting her petition for review. See Wyse v. Department of Transportation ,
39 M.S.P.R. 85, 92 n.3 (1988) (holding that the Board will not consider an
attempt in a petition for review to incorporate by reference arguments made in a
closing brief because the brief does not allege error by the administrative judge);
4 In any event, the Board may not proceed to the clear and convincing evidence test
unless it has first made a finding that the appellant established a prima facie case. See
Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d,
623 F. App’x 1016 (Fed. Cir. 2015). Accordingly, we vacate the administrative judge’s
findings concerning whether the agency met its clear and convincing burden.
8
5 C.F.R. § 1201.114(b) (requiring a petition for review to state a party’s
objections to the initial decision, and indicating that it should not include
documents that were part of the record below).
Although the appellant similarly asserts that there is a causal connection
between her EEO activity and her removal because she mentioned that activity in
her response to the proposal notice, PFR File, Tab 7 at 52-53, she has shown no
error in the administrative judge’s determination that, although the proposing and
deciding officials knew of the protected activity, they were not motivated to
retaliate against her because, among other things, they were not identified as
discriminating officials and the evidence they relied upon to support their
findings came primarily from the sworn statements of employees who had no
knowledge of her EEO activity, ID at 78-79. Because we affirm the
administrative judge’s finding that the appellant failed to show that any
prohibited consideration was a motivating factor in the agency’s action, we need
not resolve the issue of whether the appellant proved that retaliation was a
“but-for” cause of the agency’s decision. See Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶¶ 20-22, 30-31.
The appellant has not proven harmful error.
The appellant asserts that the investigative report upon which the proposing
and deciding officials relied was procedurally flawed because (1) the agency
withheld from the appellant a list of issues that the investigating officer was
charged with investigating, and (2) the investigation was a sham designed to
manufacture claims against her by employees with performance issues. PFR File,
Tab 7 at 10-16. Regarding the latter claim, the appellant contends that some
correspondence between the investigator and witnesses was conducted using
non-government email accounts and not included in the investigative report, and
that witnesses collaborated with each other. Id. at 13-15.
The administrative judge addressed these allegations of harmful error,
finding that the appellant failed to specifically identify any facts and/or
9
regulatory citations to support the bases for her claims. ID at 88. The
administrative judge found that a list of issues identifying the appellant as a target
of the investigation did not exist and logically would not have existed because it
would have contradicted the stated purpose of the investigation, which was to
determine whether a toxic environment existed and, if so, who or what caused the
toxic environment. ID at 90-91. The administrative judge also held that the
credible testimony of record showed that the relevant witnesses did not
communicate or collaborate with each other during the investigation as part of a
conspiracy to frame the appellant, but instead understandably commiserated with
each other regarding their working conditions and discussed the fact of the
investigation. ID at 92-93. Aside from reiterating the allegations she made
below, the appellant has shown no error in these findings by the administrative
judge. See Crosby, 74 M.S.P.R. at 106; Broughton, 33 M.S.P.R. at 359.
The appellant also asserts that the agency violated her due process rights
and, alternatively, committed harmful error when it denied her the right to
“communicate with anyone during the period between the issuance of the
proposed removal and the decision to remove her” by removing her from the
workplace and placing her on administrative leave. PFR File, Tab 7 at 16-22.
She contends that the administrative judge erred in holding that this issue was
waived because it was not raised before the record closed below. Id. at 19 n.5.
The above claim was not identified by the administrative judge as an issue
in the case, and the appellant did not so identify it in her objections to the
summary of the prehearing conference. IAF, Tabs 38, 51. Therefore, the
administrative judge correctly held that the appellant was prohibited from raising
it for the first time in her closing brief. ID at 94; I-2 AF, Tab 5 at 12; see Crowe
v. Small Business Administration , 53 M.S.P.R. 631, 634-35 (1992) (holding that
an issue is not properly before the Board when it is not included in the
administrative judge’s memorandum summarizing the prehearing conference,
which states that no other issues will be considered, unless either party objects to
10
the exclusion of that issue in the summary). In any event, the administrative
judge held in the alternative that the appellant completely failed to introduce any
evidence, or even a citation to the record, supporting a finding that she was
prevented from communicating with anyone during the response period. ID at 94.
The appellant has shown no error in this alternative finding.
The agency established the reasonableness of the penalty.
The appellant further contends that the agency was precluded from relying
on a prior 14-day suspension in its consideration of the penalty of removal
because she was “precluded from challenging her 14-day suspension through the
agency’s Administrative Grievance Procedure” due to her filing of an EEO
complaint regarding that matter. PFR File, Tab 7 at 22-24.
The administrative judge found that the agency properly relied on the
14-day suspension because, under Bolling v. Department of the Air Force ,
9 M.S.P.R. 335, 339 -40 (1981), the suspension was not clearly erroneous, the
appellant was informed of the action in writing, the action was a matter of record,
and the agency permitted the appellant to dispute the charges before a higher
level of authority than the one that imposed the discipline, even though she chose
to file a claim before the Equal Employment Opportunity Commission rather than
file a grievance. ID at 98-99. The appellant has not shown error in this
determination. The record reflects that the agency afforded the appellant the
opportunity to grieve the 14-day suspension. IAF, Tab 15 at 8-9. Because all of
the Bolling requirements have been met, her arguments do not warrant a different
result, and the administrative judge correctly held that the agency properly relied
on the 14-day suspension in its penalty determination. ID at 99; see Morgan v.
Department of Defense , 63 M.S.P.R. 58, 61 (1994) (holding that the filing of a
grievance is a challenge to the prior disciplinary action); Nickerson v. U.S. Postal
Service, 49 M.S.P.R. 451, 462 n.9 (1991) (affording the appellant an opportunity
to appeal the actions under the agency’s grievance procedures met the Bolling
requirement); Golden v. Tennessee Valley Authority , 10 M.S.P.R. 415, 417 (1982)
11
(applying Bolling when the agency afforded the appellant an opportunity to grieve
the prior disciplinary action but he did not do so). The appellant has shown no
error in the administrative judge’s other penalty -related findings.
Accordingly, we deny the petition for review and affirm the initial
decision.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
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.
12
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
13
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
14
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
15
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Wriglesworth_Sonia_I_DC-0752-15-0860-I-2_Final_Order.pdf | 2024-01-09 | SONIA I. WRIGLESWORTH v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-15-0860-I-2, January 9, 2024 | DC-0752-15-0860-I-2 | NP |
2,546 | https://www.mspb.gov/decisions/nonprecedential/Cheng_Davis_W_CH-0432-21-0254-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVIS W. CHENG,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
CH-0432-21-0254-I-2
DATE: January 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Duke Isaacs , Atlanta, Georgia, for the appellant.
Bradly Siskind , Riverdale, Maryland, for the agency.
Sandy S. Francois , Kenner, Louisiana, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal from Federal service for unacceptable
performance. For the reasons discussed below, we DENY the petition for review.
Except as expressly MODIFIED to provide further analysis addressing 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).
question of whether the appellant established that his whistleblowing disclosure
was a contributing factor in his removal, we AFFIRM the initial decision.
¶2On review, the agency argues that the administrative judge examined its
charge under a preponderance of the evidence standard rather than the substantial
evidence standard applicable to chapter 43 appeals. Petition For Review (PFR)
File, Tab 1 at 17, 24-25. It also disagrees with the administrative judge’s
conclusion that its performance standards were invalid. Id. at 7-16.
¶3Regarding the agency’s argument concerning the standard applied by the
administrative judge to his review of the agency’s charge, after reviewing the
record, we are not persuaded. PFR File, Tab 1 at 24-25. The administrative
judge properly cited to, and applied, the substantial evidence standard of review.
Cheng v. Department of Agriculture , MSPB Docket No. CH-0432-21-0254-I-2,
Appeal File (I-2 AF), Tab 40, Initial Decision (ID) at 4-5.
¶4As to the agency’s argument regarding the validity of the performance
standards applicable to the critical elements at issue, we agree with the
administrative judge that the agency failed to meet its burden to prove that the
standards were valid.2 To prove that a performance standard is valid, an agency
must demonstrate that the standard permits, to the maximum extent feasible, the
accurate evaluation of job performance on the basis of objective criteria related to
the job in question. Lee v. Environmental Protection Agency , 115 M.S.P.R. 533,
¶ 29 (2010). Standards must be reasonable, realistic, attainable, and clearly stated
in writing. Id. Provided those requirements are met, the Board will defer to
managerial discretion in determining what agency employees must do in order to
perform acceptably in their positions. Id.
2 The administrative judge found that the agency failed to demonstrate that either
critical element one or two was valid, and the agency does not challenge the finding as
to critical element one in its petition for review. Accordingly, we decline to disturb the
administrative judge’s finding that the agency did not prove that the first critical
element is valid.2
¶5Critical Element 2, titled “Monitors Plant and Processing Operations
Results,” includes several individual requirements, and we agree with the
administrative judge that those requirements were vague and did not provide the
appellant with a firm benchmark toward which to direct his performance. The
agency correctly points out on review that it provided evidence of weekly
meetings held with the appellant during the improvement period, at which
specific errors and deficiencies in his performance were noted and he was offered
guidance and instruction aimed at helping him comply with applicable rules and
policies. PFR File, Tab 1 at 7-16; Initial Appeal File, Tab 7 at 22-28, Tab 12
at 9, 46-52. However, we agree with the administrative judge that there is
insufficient evidence from which a reasonable person could conclude that the
agency informed the appellant of the performance threshold he was required to
meet in order to be considered Fully Successful on Critical Element 2. In other
words, although the standards and the feedback provided by the agency described
how the appellant was to perform specific tasks, neither “set forth a level of
performance that []he was required to meet in order to be considered acceptable.”
Bronfman v. General Services Administration , 40 M.S.P.R. 184, 187 (1989), 40
M.S.P.R. 184, 187. Thus, we find that the agency did not prove by substantial
evidence that the standard for Critical Element 2 was valid.
¶6Regarding the appellant’s whistleblower reprisal defense, the administrative
judge found that the appellant proved that he made a protected disclosure in April
2019 to his former supervisor that the supervisor illegally took eggs from a plant
for his personal consumption. ID at 22-23; I-2 AF, Tab 36 at 4. However, the
administrative judge concluded that the appellant did not prove that his disclosure
was a contributing factor in his removal. ID at 23-24. In so finding, the
administrative judge relied on the appellant’s failure to prove that anyone
involved in the decision to remove him knew of his disclosure. ID at 24-25.
¶7To prove that a disclosure was a contributing factor in a personnel action,
the appellant need only demonstrate the fact of, or the content of, the disclosure3
was one of the factors that tended to affect the personnel action in any way.
Covington v. Department of the Interior , 2023 MSPB 5, ¶ 43. One way to
establish contributing factor is the knowledge/timing test. Smith v. Department of
the Army, 2022 MSPB 4, ¶ 19. An appellant can satisfy the test by proving that
the official taking the action had actual or constructive knowledge of the
disclosure, and the 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. See id. (addressing proof of actual knowledge); Abernathy v.
Department of the Army , 2022 MSPB 37, ¶ 15 (indicating that the knowledge
portion of the knowledge/timing test can be met with allegations of either actual
or constructive knowledge).
¶8To the extent that the administrative judge concluded that the appellant
failed to prove contributing factor because he did not demonstrate that his
supervisor as of the time of his removal, or the officials who proposed and
decided his removal, were aware of his disclosure, we modify this finding. A
lack of actual knowledge by a single official is not dispositive to the issue of
contributing factor. Karnes v. Department of Justice , 2023 MSPB 12, ¶ 20.
Nonetheless, because the appellant only claimed that his former supervisor and a
coworker were aware of his disclosure, we agree that the appellant did not prove
actual or constructive knowledge on the part of the deciding official; therefore, he
did not satisfy the knowledge prong of the knowledge/timing test. I-2 AF, Tab 36
at 4-5; Karnes, 2023 MSPB 12, ¶¶ 19-20 (explaining that an appellant can prove
contributing factor by showing that an individual with actual or constructive
knowledge of the protected disclosure influenced an official taking a personnel
action).
¶9However, the knowledge/timing test is not the only way to prove
contributing factor. 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 the personnel4
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. Id., ¶ 15. Here, the administrative judge concluded at the
end of his analysis that the appellant failed “to offer any other evidence” to prove
a causal connection between his disclosure and removal. ID at 25. We agree. To
the extent he did not expressly consider whether the appellant proved contributing
factor by means other than the knowledge/timing test, we do so here.
¶10We find that, even though the agency was ultimately unable to meet its
burden of proof before the Board, it had strong reasons to take the removal
action, particularly in light of the potential serious consequences that poor egg
sanitation could have for consumers. Further, the appellant’s disclosure was not
directed towards the proposing or deciding official. Finally, as noted above, there
is no evidence that they knew of the disclosure, and thus there is no evidence that
they had a desire or motive to retaliate against the appellant as a result of that
disclosure. The parties have not challenged the administrative judge’s
determination that the appellant did not prove his whistleblower reprisal
affirmative defense. Except as modified above, we affirm that finding.3
ORDER
¶11We ORDER the agency to cancel the removal and to retroactively restore
the appellant, effective March 4, 2021 .4 See Kerr v. National Endowment for the
3 Because we affirm the administrative judge’s decision reversing the agency’s action,
we need not address whether the deciding official applied an incorrect standard of
proof, and if so, whether the agency committed harmful procedural error.
4 The agency has submitted evidence that the appellant declined the agency’s offer to
reinstate him to his former position in compliance with the interim relief order issued
by the administrative judge because the appellant had returned to employment with the
agency in a different position at the same grade level, effective May 23, 2021. PFR
File, Tab 1 at 4-5, 28. The agency may take this fact into account in determining the
appropriate amount of back pay and benefits owed to the appellant.5
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.
¶12We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits, no later than 60 calendar days after
the date of this decision. We ORDER the appellant to cooperate in good faith in
the agency’s efforts to calculate the amount of back pay, interest, and benefits
due, and to provide all necessary information the agency requests to help it carry
out the Board’s Order. If there is a dispute about the amount of back pay, interest
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.
¶13We 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).
¶14No 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).
¶15For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.6
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain8
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 9
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.12
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. | Cheng_Davis_W_CH-0432-21-0254-I-2__Final_Order.pdf | 2024-01-08 | DAVIS W. CHENG v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. CH-0432-21-0254-I-2, January 8, 2024 | CH-0432-21-0254-I-2 | NP |
2,547 | https://www.mspb.gov/decisions/nonprecedential/Rand_Jerry_L_DA-0714-23-0046-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JERRY L. RAND,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0714-23-0046-I-1
DATE: January 8, 2024
THIS ORDER IS NONPRECEDENTIAL*
Jerry L. Rand , Houston, Texas, pro se.
Daniel Morvant , Esquire, and Mackenzie Novak , Esquire, Denver,
Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his 38 U.S.C. § 714 removal appeal as untimely filed. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
** A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential
orders, but such orders have no precedential value; the Board and administrative
judges are not required to follow or distinguish them in any future decisions. In
contrast, a precedential decision issued as an Opinion and 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
initial decision, and REMAND the appeal to the Dallas Regional Office for
adjudication on the merits.
BACKGROUND
¶2The agency removed the appellant from his position as a Housekeeping Aid
Supervisor, effective October 24, 2022, under the authority of 38 U.S.C. § 714.
Initial Appeal File (IAF), Tab 8 at 13-16. In the decision letter, the agency
advised the appellant that he could file an appeal with the Board challenging his
removal no later than 10 business days after the date of the removal action.
Id. at 15. The appellant acknowledged receipt of the removal decision on
October 24, 2022. Id. at 16. The appellant subsequently electronically filed a
Board appeal on November 14, 2022. IAF, Tab 1 at 1. The appellant alleged
that his removal was the product of unlawful discrimination based on his
disability on his appeal form. Id. at 5.
¶3The administrative judge issued an order addressing timeliness in which he
informed the appellant that he had 10 business days from the October 24, 2022
effective date of his removal to file his appeal, acknowledged the filing date of
the appeal as November 14, 2022, observed that it appeared the appellant had
untimely filed his appeal, described the circumstances under which the deadline
could be waived or tolled, and ordered both parties to respond. IAF, Tab 3.
Both parties filed responses to the order. IAF, Tabs 6-7. In his response, the
appellant did not address the timeliness of his appeal. IAF, Tab 6 at 2.
¶4The administrative judge subsequently issued an initial decision finding the
appeal was untimely filed by 4 days. IAF, Tab 9, Initial Decision (ID) at 3. He
reasoned that under 38 U.S.C. § 714, the appellant had 10 business days from the
date of his removal to file a Board appeal, that equitable tolling did not apply to
extend the appellant’s filing deadline, and that the appellant had failed to show
that good cause existed for this delay in filing his appeal. ID at 3-4.
3
¶5The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition to the petition for
review, and the appellant has not filed a reply. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6An appellant files what is known as a mixed case when he seeks review of a
matter within the Board’s appellate jurisdiction and also raises a claim of
discrimination or retaliation in violation of equal employment opportunity (EEO)
statutes. Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶¶ 12, 25. An
appellant has two options when filing a mixed case: (1) he may initially file a
mixed-case EEO complaint with his employing agency followed by an appeal to
the Board; or (2) he may file a mixed -case appeal with the Board and raise his
discrimination claims in connection with that appeal. Id., ¶ 13. An employee
may file either a mixed-case complaint or a mixed-case appeal, but not both, and
whichever is filed first is deemed an election to proceed in that forum. Id. Here,
the appellant filed an appeal with the Board challenging his removal on
November 14, 2022. IAF, Tab 1.
¶7Shortly before the initial decision in this matter was issued, the Board held
that when the agency takes an action under 38 U.S.C. § 714, and the appellant
files a mixed case appeal, the procedures contained within 5 U.S.C. § 7702 and
the Board’s implementing regulations apply. Davis v. Department of Veterans
Affairs, 2022 MSPB 45, ¶ 19; Wilson, 2022 MSPB 7, ¶¶ 11-25. Under those
regulations, if the appellant has not filed a formal discrimination complaint with
the agency and raises his discrimination claim for the first time with the Board,
an appeal is due 30 days after the effective date of the agency’s action or 30 days
after the date of the appellant’s receipt of the agency’s decision, whichever is
later. Davis, 2022 MSPB 45, ¶¶ 17-19; 5 C.F.R. § 1201.154(a).
¶8The appellant received the agency’s removal decision on October 24, 2022,
the same day his removal became effective. IAF, Tab 8 at 13, 16. The appellant
4
raised a claim of discrimination in connection with his removal in his initial
appeal and he did not file a formal discrimination complaint with the agency
regarding his removal. Id. at 12; IAF, Tab 1 at 5. Therefore, the appellant’s
30-day time period for filing a Board appeal began on October 24, 2022. The
appellant filed his mixed-case appeal 21 days later, on November 14, 2022.
IAF, Tab 1. Thus, the appeal was timely filed. Accordingly, we remand the
appellant’s mixed case appeal for adjudication on the merits.
ORDER
¶9For the reasons discussed above, we remand this case to the Dallas Regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Rand_Jerry_L_DA-0714-23-0046-I-1__Remand_Order.pdf | 2024-01-08 | JERRY L. RAND v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0714-23-0046-I-1, January 8, 2024 | DA-0714-23-0046-I-1 | NP |
2,548 | https://www.mspb.gov/decisions/nonprecedential/Ramos-Castro_Marissa_SF-0353-17-0703-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARISSA RAMOS-CASTRO,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0353-17-0703-I-1
DATE: January 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
G
uillermo Mojarro , Corpus Christi, Texas, for the appellant.
Catherine V. Meek , Esquire, Long Beach, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her restoration appeal for lack of jurisdiction. On petition for review,
the appellant argues the Office of Workers’ Compensation Programs (OWCP) did
not determine that her December 2013 rehabilitation assignment offer was
suitable and asserts that OWCP is still paying her because the agency failed to
provide work within her medical restrictions. She also reiterates 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).
discrimination claims. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify the burden of proof that an appellant must meet to establish jurisdiction
over her restoration appeal and to VACATE as unnecessary the administrative
judge’s finding that OWCP issued a suitability determination as to the agency’s
job offer, we AFFIRM the initial decision.
The Board has jurisdiction to review whether an agency’s denial of
restoration to a partially recovered employee was arbitrary and capricious.
Bledsoe v. Merit Systems Protection Board , 659 F.3d 1097, 1103 -04 (Fed. Cir.
2011), modified in part by regulation as stated in Kingsley v. U.S. Postal Service ,
123 M.S.P.R. 365, ¶ 10 (2016); 5 C.F.R. §§ 353.304(c), 1201.57(a)(4), (b).
Although the administrative judge stated the appellant’s burden as it stood before
the Board modified the pertinent regulation, the initial decision makes clear that
she based her determination that the Board lacks jurisdiction over the appellant’s
restoration appeal on the correct standard, i.e., whether the appellant made a
nonfrivolous allegation that the agency denied her request for restoration. Initial
Appeal File, Tab 14, Initial Decision at 8; see Clark v. U.S. Postal Service ,
123 M.S.P.R. 466, ¶ 5 n.2 (2016) (finding an administrative judge’s error in2
citing to the preponderant evidence standard harmless in a restoration appeal
because he properly determined that the appellant failed to present nonfrivolous
allegations of jurisdiction), aff’d per curiam , 679 F. App’x 1006 (Fed. Cir. 2017)
and overruled on other grounds by Cronin v. U.S. Postal Service , 2022 MSPB 13.
To the extent that the administrative judge erred in her iteration of the standard,
the error is of no legal consequence because it did not adversely affect the
appellant’s substantive rights . Karapinka v. Department of Energy , 6 M.S.P.R.
124, 127 (1981).
NOTICE OF APPEAL RIGHTS1
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 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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. 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Ramos-Castro_Marissa_SF-0353-17-0703-I-1_Final_Order.pdf | 2024-01-08 | null | SF-0353-17-0703-I-1 | NP |
2,549 | https://www.mspb.gov/decisions/nonprecedential/Thurston_Tracie_K_CH-844E-18-0480-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRACIE K. THURSTON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-844E-18-0480-I-1
DATE: January 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tracie K. Thurston , Leadington, Missouri, 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 agency’s decision denying her application for disability retirement.
On petition for review, the appellant disputes the administrative judge’s findings
that she does not meet the requirements for disability retirement, and she has
submitted numerous documents in support of her claim. Generally, we grant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).2
2 More than 3 months after the close of the record on review, the appellant submitted a
first request for leave to file an additional pleading and “supporting documents for my
case.” Petition for Review (PFR) File, Tab 6. The Office of the Clerk of the Board
responded, advising the appellant that the Board’s regulations do not provide for
pleadings other than a petition for review, a cross petition for review, a response to the
petition for review or cross petition for review, and a reply to a response to a petition
for review. 5 C.F.R. § 1201.114(a)(5); PFR File, Tab 7. The appellant has failed to
demonstrate the need for this pleading or show that it was not readily available before
the record closed on review. Grassell v. Department of Transportation , 40 M.S.P.R.
554, 564 (1989) (finding that, to constitute new and material evidence, the information
contained in the documents, not just the documents themselves, must have been
unavailable despite due diligence when the record closed). For these reasons, the
appellant’s first request for leave to file an additional pleading is denied.
Approximately 9 months later, the appellant submitted a second request for leave to file
an additional pleading and documents in support of her appeal. PFR File, Tab 8. Based
on her representations, the Office of the Clerk of the Board issued an order that granted
her request. PFR File, Tab 9. The appellant then submitted several documents showing
that her employing agency removed her for inability to perform the duties of her
position, effective April 11, 2019. PFR File, Tab 10 at 3-5. A removal on this basis
may be relevant to an appellant’s application for disability retirement, Bruner v. Office
of Personnel Management , 996 F.2d 290, 294 (1993), and, as such, this evidence is
material. However, it is not new since it predates the close of the record on review.
Absent a showing that evidence was unavailable before the record closed on review
despite the party’s due diligence, the Board generally will not consider such2
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.
late-submitted evidence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14
(1980). The appellant also submitted an August 21, 2019 letter from the Social Security
Administration indicating that she has been awarded benefits beginning in December
2018. PFR File, Tab 10 at 7-8. While this evidence is new, it is not material because
the Social Security decision does not identify the condition or conditions that formed
the basis for the decision or explain why the appellant was determined to be disabled,
and therefore, it does not constitute significant or useful evidence. Confer v. Office of
Personnel Management , 111 M.S.P.R. 419, ¶ 6 (2009). The appellant also submitted
two medical reports, a services agreement, and several bills for services rendered. PFR
File, Tab 10 at 9-18. These documents were already a part of the record on review, and
therefore, they do not constitute new evidence. Meier v. Department of the Interior ,
3 M.S.P.R. 247, 256 (1980). Finally, the appellant submitted seven receipts for
payment from a presumed provider. The first is not new, PFR File, Tab 10 at 19, and
the remaining six, id. at 20-27, are not material as they cover a period of time during
which the appellant was no longer a Federal employee and provide no information
regarding the nature of the services rendered. Russo v. Veterans Administration ,
3 M.S.P.R. 345, 349 (1980).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Thurston_Tracie_K_CH-844E-18-0480-I-1__Final_Order.pdf | 2024-01-08 | TRACIE K. THURSTON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-844E-18-0480-I-1, January 8, 2024 | CH-844E-18-0480-I-1 | NP |
2,550 | https://www.mspb.gov/decisions/nonprecedential/Webb_Major_M_DC-3443-18-0299-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MIKE WEBB,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-3443-18-0299-I-1
DATE: January 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M
ike Webb , Arlington, Virginia, pro se.
Devon L. Zebrovious , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of his selection for a Procurement
Analyst position with the agency. On petition for review, the appellant argues
that the agency filed an untimely motion to dismiss his appeal for lack of
jurisdiction and that the Board has jurisdiction over his appeal because his refusal
to accept the Procurement Analyst position, based on a reasonable belief that 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).
do so would have been a violation of the statute prohibiting bribery, was
protected under 15 U.S.C. § 2087.2 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
2 On review, the appellant has also argued that his initial appeal was timely. Petition
for Review File, Tab 2 at 9-11. The administrative judge determined that, because he
found that the Board lacked jurisdiction over the appeal, he did not need to address the
timeliness of the appeal. Initial Appeal File, Tab 8 at 6 n.5. Because we agree with the
administrative judge that the Board lacked jurisdiction over the appeal, it is not
necessary to make a finding regarding the timeliness of the appeal. See Dean v. U.S.
Postal Service, 115 M.S.P.R. 56, ¶ 13 n.5 (2010) (stating that, in light of the Board’s
finding that the appellant failed to carry his jurisdictional burden, it need not reach the
issue of timeliness).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and 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. The court of appeals must 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: 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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Webb_Major_M_DC-3443-18-0299-I-1_Final_Order.pdf | 2024-01-08 | MIKE WEBB v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-3443-18-0299-I-1, January 8, 2024 | DC-3443-18-0299-I-1 | NP |
2,551 | https://www.mspb.gov/decisions/nonprecedential/Butler_Larry_J_CB-7521-14-0014-B-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SOCIAL SECURITY
ADMINISTRATION,
Petitioner,
v.
LARRY J. BUTLER,
Respondent.DOCKET NUMBER
CB-7521-14-0014-B-1
DATE: January 8, 2024
THIS ORDER IS NONPRECEDENTIAL1
Larry J. Butler , Fort Myers, Florida, pro se.
Jessica V. Johnson and Megan E. Gideon , Atlanta, Georgia, for the
petitioner.
Meeka S. Drayton , Esquire, Seattle, Washington, for the petitioner.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The agency has filed a petition for review and the respondent has filed a
cross petition for review of the remand initial decision, which found that the
agency did not establish good cause to suspend the respondent for 60 days
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
pursuant to 5 U.S.C. § 7521, and that the respondent did not establish his claim of
whistleblowing reprisal. For the reasons discussed below, we GRANT both the
petition for review and the cross petition for review, VACATE the findings that
the agency lacked good cause to suspend the respondent and that the respondent
did not establish his whistleblower reprisal claim, and again REMAND the case
to the presiding administrative law judge (ALJ) for further adjudication in
accordance with this Remand Order.
BACKGROUND
The relevant facts are largely undisputed. The respondent is employed by
the Social Security Administration (SSA or agency) as an ALJ in Fort Meyers,
Florida. Social Security Administration v. Butler , MSPB Docket No. CB-7521-
14-0014-T-1, Initial Appeal File (IAF), Tab 65 at 8; Hearing Transcript (HT)
at 401. SSA has a policy of providing services to persons with limited English
proficiency. As set forth in SSA’s Hearings, Appeals and Litigation Manual
(HALLEX) 1-2-6-10, this policy requires, inter alia, that the agency will provide
an interpreter free of charge to any claimant requesting language assistance. IAF,
Tab 72 at 5-6. The respondent was aware of this policy at all relevant times. See,
e.g., IAF, Tab 65 at 8; HT at 415.
On April 22, 2014, SSA filed a complaint under 5 U.S.C. § 7521,
requesting that the Board find good cause to suspend the respondent for 60 days
based on the following charges: (I) failure to follow instructions; (II) failure to
follow SSA policy; and (III) conduct unbecoming an ALJ. IAF, Tab 1. Under
Charge I, the agency set forth three specifications; namely that the respondent
failed to comply with directives by the Hearing Office Chief ALJ (HOCALJ) as
follows: (1) an October 31, 2013 directive to rescind his previous denial of
Claimant A’s interpreter request; (2) a November 13, 2013 directive to complete
his review of seven cases in ALJ Pre-Hearing Review (ARPR) status by the close
of business on November 22, 2013; and (3) a February 7, 2013 directive to
3
rescind his previous denials of interpreter requests in the matters involving
Claimants B, C, and D. IAF, Tab 1 at 10, Tab 87 at 17-18, Tab 88 at 16-17,
Tab 91 at 24-25. Under Charge II, failure to follow SSA policy, the agency
alleged that the respondent failed to comply with agency policy when he did not
provide an interpreter in the case involving Claimant E. IAF, Tab 1 at 10, Tab 72
at 5-6. Finally, under Charge III, the agency alleged that the respondent engaged
in conduct unbecoming an ALJ when, in three other cases, he sent or directed
staff to send the claimants and their representatives copies of his objections to
management’s decision to reassign those cases from his docket. IAF, Tab 1 at 10.
The respondent filed an answer in which he asserted numerous defenses including
a claim of reprisal for whistleblowing activity. IAF, Tab 15.
Following a hearing, the presiding ALJ issued an initial decision finding
that the agency lacked good cause to suspend the respondent. IAF, Tab 109,
Initial Decision (ID). In reaching that conclusion, the presiding ALJ first
addressed the charges and specifications relating to the policy set forth at
HALLEX I-2-6-10. ID at 18-31. He found that HALLEX I-2-6-10, which was
not published in the Federal Register, was internal guidance without the force of
law and furthermore conflicted with agency regulations at 20 C.F.R. §§ 404.944
and 405.320,2 which provide that a hearing is open only to the parties and those
persons the ALJ deems “necessary and proper.” ID at 19 -25. In addition, he
found that HALLEX I-2-6-10, as applied by the agency, invaded the respondent’s
judicial function and decisional independence. ID at 25-31. He thus concluded
that allegations of misconduct based on the respondent’s failure to comply with
directives regarding interpreter requests or his failure to comply with
HALLEX I-2-6-10 did not constitute good cause to impose discipline. ID at 31.
2 During the pendency of this appeal, SSA amended 20 C.F.R. § 404.944 and removed
and reserved part 405, including 20 C.F.R. § 405.320, from the Code of Federal
Regulations. Ensuring Program Uniformity at the Hearing and Appeals Council Levels
of the Administrative Review Process, 81 Fed. Reg. 90987-01, 90987, 90993-94
(Dec. 16, 2016). We need not address these changes because they do not affect the
outcome here.
4
Accordingly, the presiding ALJ did not sustain Charge II or specification 1 of
Charge I. Id. He sustained specification 3 of Charge I regarding Claimant C
only, finding that regardless of the validity of HALLEX I-2-6-10, the respondent
was bound by the agency’s Appeals Council’s October 31, 2012 remand order to
obtain an interpreter if he conducted another hearing in that case. ID at 31-35;
IAF, Tab 93 at 16-17. The presiding ALJ also sustained specification 2 of
Charge I, concerning the instruction to remove seven cases from ARPR status, but
found Charge III unproven.3 ID at 35-42.
Turning to the respondent’s claim of whistleblowing reprisal, the presiding
ALJ found the respondent made the following protected disclosures:
(1) disclosures to Congress and agency management, starting in March 2012 and
continuing throughout that year, regarding claimants’ representatives concealing
information and evidence, including claimants’ ability to communicate in
English; (2) complaints about various abuses and violations, including
unnecessary costs to agency programs, decisions issued without a complete
record, and failing to ensure that the evidence was reliable or valid; and
(3) reports to the Office of Inspector General that SSA’s inaction in response to
his complaints constituted gross mismanagement and abuse of authority. ID
at 45-46. However, the presiding ALJ found that the protected disclosures were
not a contributing factor in the agency’s decision to pursue disciplinary action
against the respondent, and that, even if they could be considered a contributing
factor, SSA proved by clear and convincing evidence that it would have filed its
complaint in the absence of the disclosures. ID at 46-50. The presiding ALJ
further found that the respondent’s remaining affirmative defenses were either
unproven or moot given his findings on the charges. ID at 50-53. Finally, based
on his analysis of the Douglas factors,4 the presiding ALJ concluded that SSA did
3 The agency has not sought review of the presiding ALJ’s findings concerning
Charge III—and so we need not disturb those findings.
4 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of 12 factors that are relevant in assessing the
5
not establish good cause to suspend the respondent for 60 days, but was not
precluded from issuing a warning, counseling, or reprimand. ID at 53-67.
Both parties petitioned the Board for review of the initial decision, and the
Board issued a nonprecedential order remanding the matter for further
adjudication. Social Security Administration v. Butler , MSPB Docket
No. CB-7521-14-0014-T-1, Remand Order (Aug. 25, 2016). As to the charges,
the Board found that, contrary to the initial decision, the policy articulated in
HALLEX I-2-6-10 and the agency’s directives to comply with that policy were
binding on the respondent and did not interfere with his judicial independence.
Id., ¶¶ 10-12. Having so found, the Board proceeded to find that the agency
proved Charge II and all three specifications of Charge I, including
specification 3 in its entirety. Id., ¶¶ 13-16.
The Board further found that, contrary to the initial decision, the
respondent established that his protected disclosures were a contributing factor in
the agency’s decision to file a complaint under 5 U.S.C. §7521. Specifically, the
Board found that knowledge of the respondent’s disclosures could be imputed to
the agency official who signed the complaint, and that the respondent’s protected
disclosures were sufficiently close in time to satisfy the knowledge/timing test.
T-1 Remand Order, ¶¶ 21-24. The Board also observed that, in his discussion of
the clear and convincing evidence test, the presiding ALJ did not address the
factors identified in Carr v. Social Security Administration , 185 F.3d 1318, 1323
(Fed. Cir. 1999), or evaluate all of the pertinent evidence as required under
appropriate penalty for an act of misconduct. The Douglas factors include, inter alia,
the nature and seriousness of the offense, the employee’s past disciplinary record, his
potential for rehabilitation, and any mitigating circumstances surrounding the offense.
Id. In an original jurisdiction case under 5 U.S.C. § 7521, it is the Board, rather than
the employing agency, that selects the appropriate penalty, if any, the agency is
authorized to take, and the Board does not give deference to the agency’s proposed
penalty as it does in a chapter 75 appeal. Social Security Administration v. Long,
113 M.S.P.R. 190, ¶ 47 (2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011), and overruled on
other grounds by Department of Health and Human Services v. Jarboe , 2023 MSPB 22,
¶ 9. However, the Board uses the Douglas factors to guide its good cause penalty
determination under section 7521. Long, 113 M.S.P.R. 190, ¶ 47.
6
Whitmore v. Department of Labor , 680 F.3d 1353, 1368 (Fed. Cir. 2012).
T-1 Remand Order, ¶ 26.
Based on those findings, the Board remanded the matter to the presiding
ALJ with instructions to address the Carr factors, considering all relevant
evidence as required under Whitmore, and determine whether the agency proved
by clear and convincing evidence that it would have “filed a complaint under
5 U.S.C. § 7521” in the absence of the respondent’s protected disclosures.
T-1 Remand Order, ¶ 27. The Board further ordered that if the presiding ALJ
determined that the agency met its burden of proof on that issue, he should
reevaluate whether the agency established good cause for the proposed 60-day
suspension. Id.
On remand, the presiding ALJ addressed the three Carr factors and found
that the agency proved by clear and convincing evidence that it would have
initiated the complaint against the respondent, regardless of whether the
respondent made protected disclosures.5 Social Security Administration v. Butler ,
MSPB Docket No. CB-7521-14-0014-B-1, Remand File, Tab 10, Remand Initial
Decision (RID) at 19-32. The presiding ALJ then turned to the question of
whether SSA had demonstrated good cause to suspend the respondent based on
the sustained charges and specifications. RID at 34-47. After conducting a new
analysis of the Douglas factors, the presiding ALJ again concluded that the
sustained misconduct did not establish good cause to take an action under
5 U.S.C. § 7521.6 Id.
5 The presiding ALJ further found that the respondent had abandoned his other
affirmative defenses and was precluded from reasserting them on remand. RID
at 32-33. The respondent does not challenge that finding.
6 On May 3, 2017, shortly after the issuance of the remand initial decision, the agency
filed a second complaint under 5 U.S.C. § 7521, requesting that the Board find good
cause to remove the respondent and suspend him from a pay status beginning on the
date of the complaint and continuing through the date of a final Board decision. Social
Security Administration v. Butler , MSPB Docket No. CB-7521-17-0017-T-1. The
agency’s second complaint was assigned to a different presiding ALJ, who issued an
initial decision on December 5, 2023, finding good cause to remove the respondent.
7
The agency filed a petition for review arguing that the presiding ALJ erred
in finding that there was not good cause to suspend the respondent. Remand
Petition for Review (RPFR) File, Tab 3. In his cross petition for review, the
respondent again argued that HALLEX I-2-6-10 is not binding on him or other
ALJs when performing judicial functions. RPFR File, Tab 7 at 5-23. He further
argued that, contrary to the remand initial decision, the agency has not shown by
clear and convincing evidence that it would have filed its complaint seeking a
60-day suspension in the absence of his protected disclosures. Id. at 23-33. The
agency responded to the respondent’s cross petition. RPFR File, Tab 9.
Subsequently, the Board issued a show-cause order directing the parties to file
evidence and argument in response to the following question: “Would the agency
have filed a complaint under 5 U.S.C. § 7521 seeking the same action, i.e., a
60-day suspension, in the absence of the respondent’s protected disclosures?”
RPFR File, Tab 14. Both parties responded to the order.7 RPFR File,
Tabs 15-16.
ANALYSIS
To establish good cause to suspend the respondent, the agency must, inter alia ,
prove by clear and convincing evidence that it would have filed a complaint
seeking a 60-day suspension in the absence of the respondent’s protected
disclosures .
In his cross petition for review, the respondent contends that the presiding
ALJ erred in denying his whistleblowing reprisal claim based on a finding that
Social Security Administration v. Butler , MSPB Docket No. CB-7521-17-0017-T-1,
Initial Decision (Dec. 5, 2023).
7 Following the close of the record on review, the respondent filed a motion for leave to
submit additional evidence. RPFR, Tab 18. The evidence in question relates to
Executive Order 13,891, entitled “Promoting the Rule of Law Through Improved
Agency Guidance Documents.” 84 Fed. Reg. 55235 (Oct. 9, 2019). However,
Executive Order 13,891 has been rescinded, as has the agency’s proposed
implementation of that order. Exec. Order No. 13,992, 86 Fed. Reg. 7049 (Jan. 20,
2021); Rescission of Rules on Improved Agency Guidance Documents, 86 Fed. Reg.
20631-01 (Apr. 21, 2021). We find that the respondent’s new evidence is not material
to the outcome of this appeal, and we therefore DENY his motion.
8
the agency proved by clear and convincing evidence it would have initiated a
complaint under 5 U.S.C. § 7521 in the absence of his whistleblowing. RPFR
File, Tab 7 at 25. The respondent argues that the agency instead bears the burden
of proving by clear and convincing evidence that, absent his protected
disclosures, it would have filed a complaint seeking the same discipline, i.e., a
60-day suspension:
The question is not whether a whistleblower’s conduct could have
warranted some lesser level of discipline. A showing with clear and
convincing evidence that [agency] managers might have been
justified in pursuing a 15 -day, a 30-day, a 45-day or even a 59-day
suspension—when [the respondent’s] protected disclosures are
disregarded—will not satisfy the required burden of proof.
Id.
We agree. In so doing, we also address an issue of first impression—
namely, how and whether the Board should adjudicate a claim of whistleblowing
reprisal raised in answer to an agency complaint under 5 U.S.C. § 7521 when the
respondent has not pursued the claim by filing an individual right of action (IRA)
appeal pursuant to 5 U.S.C. § 1221. Cf. Social Security Administration v. Carr ,
78 M.S.P.R. 313, 334-38, 343-44 (1998) (adjudicating the respondent’s
whistleblowing reprisal claim as an affirmative defense to a complaint under
5 U.S.C. § 7521 which had been joined with the respondent’s IRA appeals, one of
which alleged that the complaint was the result of whistleblowing reprisal), aff’d,
185 F.3d 1318 (Fed. Cir. 1999).
Typically, the Board adjudicates a claim of whistleblowing reprisal in one
of two scenarios. First, an employee, former employee, or applicant who believes
the agency took or failed to take, or threatened to take or fail to take a personnel
action as defined under 5 U.S.C. § 2302(a)(2)(A) in violation of 5 U.S.C.
§ 2302(b)(8) or (9)(A)(i), (B), (C), or (D), may file a complaint with the Office of
Special Counsel (OSC). 5 U.S.C. § 1214(a)(1). If, after receiving such a
complaint, OSC notifies the individual that its investigation has been terminated
9
or if, after 120 days from the filing of the complaint, OSC has not provided notice
that it will seek corrective action on the individual’s behalf, the individual may
then seek corrective action with the Board. See 5 U.S.C. §§ 1214(a)(3), 1221(a).
In such a case, the Board proceeding is known as an IRA appeal. Corthell v.
Department of Homeland Security , 123 M.S.P.R. 417, ¶ 7 (2016). Alternatively,
an employee, former employee, or applicant who has the right to appeal a
contested action directly to the Board may seek corrective action with the Board
without first filing a complaint before OSC. 5 U.S.C. § 1221(b). In such a case,
the Board will consider the claim of whistleblowing reprisal as an affirmative
defense to the action on appeal. Shibuya v. Department of Agriculture ,
119 M.S.P.R. 537, ¶ 19 (2013).
Here, the respondent contends that the agency retaliated against him for
protected disclosures under 5 U.S.C. § 2302(b)(8) when it filed its complaint
seeking the Board’s approval to impose a 60-day suspension. While the filing of
the complaint does not itself constitute a personnel action as defined at 5 U.S.C.
§ 2302(a)(2)(A),8 it may be understood as a threat or proposal to take such an
action, i.e., the requested 60-day suspension. See 5 U.S.C. § 2302(a)(2)(A)(iii)
(defining a personnel action to include, inter alia, “an action under chapter 75 of
8 Section 2302(a)(2)(A) defines the term “personnel action” to include the following:
“(i) an appointment; (ii) a promotion; (iii) an action under chapter 75 of this title or
other disciplinary or corrective action; (iv) a detail, transfer, or reassignment; (v) a
reinstatement; (vi) a restoration; (vii) a reemployment; (viii) a performance evaluation
under chapter 43 of title 5 or under title 38; (ix) a decision concerning pay, benefits, or
awards, or concerning education or training if the education or training may reasonably
be expected to lead to an appointment, promotion, performance evaluation, or other
action described in in this subparagraph; (x) a decision to order psychiatric testing or
examination; (xi) the implementation or enforcement of any nondisclosure policy, form,
or agreement; and (xii) any other significant change in duties, responsibilities, or
working conditions; with respect to an employee in, or applicant for, a covered position
in an agency, and in the case of an alleged prohibited personnel practice described in
subsection (b)(8), an employee or applicant for employment in a Government
corporation as defined in section 9101 of title 31.” In addition, under the Dr. Chris
Kirkpatrick Whistleblower Protection Act of 2017, Pub. L. No. 115-73, § 103, 131 Stat.
1235 (codified at 5 U.S.C. § 2302(b)(14)), it is a prohibited personnel practice to access
an employee’s medical records in furtherance of whistleblower retaliation.
10
this title or other disciplinary or corrective action”) ; 5 U.S.C. § 7521(b)
(including suspensions among the “actions” covered by the section); Carr,
78 M.S.P.R. at 343-44 (characterizing the agency’s complaint under 5 U.S.C.
§ 7521 as a proposed removal); cf. Grubb v. Department of the Interior ,
96 M.S.P.R. 361, ¶ 25 (2004) (characterizing a notice of proposed removal as a
“threatened personnel action” under 5 U.S.C. § 2302(a)(2)(A)(iii) and (b)(8)).9
Thus, the respondent could have pursued his whistleblowing claim by filing a
complaint with OSC under 5 U.S.C. § 1214(a)(1), potentially to be followed by an
IRA appeal pursuant to 5 U.S.C. § 1214(a)(3) and 1221(a). See Carr,
78 M.S.P.R. at 343-44.
However, the respondent in this case has not sought corrective action
before OSC or filed an IRA appeal pursuant to 5 U.S.C. § 1221(a). In that
respect, this case differs from Carr, in which the agency’s complaint was joined
with an IRA appeal in which the respondent alleged that the agency’s complaint
was the result of whistleblowing reprisal. See 78 M.S.P.R. at 343-44.
Section 1221(b) is likewise inapplicable, because this case was initiated by the
agency, not the respondent, and lies entirely within our original jurisdiction.
5 C.F.R. §§ 1201.1-1201.3 (distinguishing the Board’s appellate jurisdiction from
its original jurisdiction, which includes actions taken against ALJs under 5 U.S.C.
§ 7521). The agency has not yet imposed the suspension it seeks approval to
impose, and there is no matter before us that the respondent may appeal directly
to the Board under any law, rule, or regulation. See Social Security
Administration v. Dantoni , 77 M.S.P.R. 516, 521, aff’d, 173 F.3d 435 (Fed. Cir.
1998) (Table); see also Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980)
(holding that allegations of prohibited personnel practices under 5 U.S.C.
§ 2302(b) are generally not an independent source of Board jurisdiction), aff’d,
9 In an apparent typographical error, Grubb refers to “5 U.S.C. § 2302(a)(2)(iii)”
instead of 5 U.S.C. § 2302(a)(2)(A)(iii).
11
681 F.2d 867, 871-73 (D.C. Cir. 1982).10 Thus, 5 U.S.C. § 1221 does not apply
directly to this case. The same is also true of our implementing regulations at
5 C.F.R. part 1209, which are limited in scope to appeals and stay requests filed
by an employee, former employee, or applicant for employment. See 5 C.F.R.
§ 1209.1.
This does not mean, however, that we lack authority to review the merits of
the respondent’s whistleblowing claim. Section 7521(a) generally provides that
an agency may take an adverse action against an ALJ “only for good cause
established and determined by the [Board].” Congress has not defined the term
“good cause” for purposes of section 7521, and the Board has adopted a flexible
approach in which good cause is defined according to the individual
circumstances of each case. Department of Labor v. Avery , 120 M.S.P.R. 150, ¶ 5
(2013), aff’d sub nom. Berlin v Department of Labor , 772 F.3d 890 (Fed. Cir.
2014). Here, we find the respondent’s allegations of whistleblowing reprisal are
a pertinent consideration in determining whether the agency has shown good
cause to impose the requested 60-day suspension.11 Indeed, it is difficult to
imagine a scenario in which the Board would find good cause to impose
discipline against an ALJ pursuant to a complaint that was the result of prohibited
whistleblowing reprisal, even if the proven charges would otherwise warrant the
10 Similarly, because the Board’s appellate procedures under 5 U.S.C. § 7701 do not
apply to original jurisdiction cases under 5 U.S.C. § 7521, see Dantoni, 77 M.S.P.R.
at 521, the respondent’s whistleblowing claim does not fall within the scope of
section 7701(c)(2)(B), which provides that an appealable action will not be sustained
when the appellant establishes that the agency’s decision was the result of a prohibited
personnel practice under section 2302(b).
11 In an ordinary adverse action appeal, the Board will consider an affirmative defense
of whistleblowing reprisal as a matter distinct from whether the agency has proven its
case, i.e., shown by preponderant evidence that the action promotes the efficiency of the
service. See, e.g., Shibuya, 119 M.S.P.R. 537, ¶ 19. However, the good cause standard
is distinct from the efficiency of the service standard and does not require an identical
analysis. See, e.g., Long, 113 M.S.P.R. 190, ¶ 46 (holding that the Board does not
undertake a separate analysis of nexus in a complaint under 5 U.S.C. § 7521).
12
requested penalty. Thus, the respondent’s whistleblowing reprisal claim may
fairly be described as an “affirmative defense.” See Carr, 78 M.S.P.R. at 334.
Furthermore, while 5 U.S.C. § 1221 does not apply directly to this case, the
respondent’s claim nonetheless lies within the broader scope of the
Whistleblower Protection Act. See Pub. L. No. 101-12, § 4, 103 Stat. 16
(Apr. 10, 1989) (amending 5 U.S.C. § 2302(b)(8) to prohibit an agency from
“threaten[ing] to take” a personnel action because of a protected disclosure).
Accordingly, it should be considered in a manner consistent with the Act’s stated
purpose, which is “to strengthen and improve protection for the rights of Federal
employees, to prevent reprisals, and to help eliminate wrongdoing within the
Government[.]” Id., § 2(b). We find it best suits that purpose to apply the same
evidentiary framework of 5 U.S.C. § 1221 and our implementing regulations at
5 C.F.R. part 1209, subpart B, in assessing the merits of the respondent’s claim of
whistleblowing reprisal.
Under that framework, the Board first determines whether the appellant—
or, as in this case, the respondent—has established by preponderant evidence12
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). See
5 U.S.C. § 1221(e)(1); Salerno v. Department of the Interior , 123 M.S.P.R. 230,
¶ 5 (2016); 5 C.F.R. § 1209.7(a). Next, the Board determines whether the
protected disclosure or protected activity was a contributing factor in the
personnel action that was threatened, proposed, taken, or not taken. See 5 U.S.C.
§ 1221(e)(1); Salerno, 123 M.S.P.R. 230, ¶ 5; 5 C.F.R. § 1209.7(a). If the
respondent makes both of these showings by preponderant evidence, the burden
of persuasion shifts to the agency to demonstrate by clear and convincing
evidence13 that it would have threatened, proposed, taken, or not taken the same
personnel action in the absence of the disclosure or other protected activity. See
12 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).
13
5 U.S.C. § 1221(e)(2); Salerno, 123 M.S.P.R. 230, ¶ 5; 5 C.F.R. § 1209.7(b); see
also Carr, 185 F.3d at 1322.
In determining whether an agency has met its burden by clear and
convincing evidence, the Board will consider all of the relevant factors, including
the following “ Carr” factors: (1) The strength of the agency’s evidence in
support of the personnel action; (2) the existence and strength of any motive to
retaliate on the part of the agency officials who were involved in the decision;
and (3) any evidence that the agency takes similar actions against employees who
are not whistleblowers but who are otherwise similarly situated. Carr, 185 F.3d
at 1323; Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 11. The Board
does not view these factors as discrete elements, each of which the agency must
prove by clear and convincing evidence, but instead weighs the factors together to
determine if the evidence is clear and convincing as a whole. Elder v.
Department of the Air Force , 124 M.S.P.R. 12, ¶ 42 (2016). The U.S. Court of
Appeals for the Federal Circuit has further clarified 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.
We agree with the respondent that the agency cannot meet its burden
merely by showing that it would have sought some disciplinary action against him
absent his whistleblowing. Rather, the agency must establish that it would have
filed a complaint seeking to impose the same personnel action, i.e., a 60-day
suspension, in the absence of the respondent’s protected disclosures. In the event
the agency fails to make that showing by clear and convincing evidence, the
Board will not find good cause to impose the requested 60-day suspension, even
if the record might otherwise support a finding of good cause. See Whitmore,
680 F.3d at 1374 (observing that “[t]he whistleblowing statute is clear that even
13 Clear and convincing evidence is that measure or degree of proof that produces in the
mind of a trier of fact a firm belief as to the allegations sought to be established.
5 C.F.R. § 1209.4(e).
14
where the charges have been sustained and the agency’s chosen penalty is deemed
reasonable, the agency must still prove by clear and convincing evidence that it
would have imposed the exact same penalty in the absence of the protected
disclosures”) (emphasis in the original).
We remand the case to the presiding ALJ for a corrected analysis of the Carr
factors.
In the Board’s previous Remand Order, the Board directed the presiding
ALJ to evaluate whether, in light of Carr and Whitmore, the agency proved by
clear and convincing evidence that it would have “filed a complaint under
5 U.S.C. § 7521” absent the respondent’s protected disclosures. T -1 Remand
Order, ¶ 27. The presiding ALJ addressed that question and answered in the
affirmative. However, this was not a correct statement of the agency’s burden of
proof. We therefore find it necessary to conduct a new analysis of the Carr
factors, consistent with Whitmore, tailored to the question of whether the agency
met its burden concerning the specific personnel action at issue, i.e., the
requested 60-day suspension.
To that end, the Board issued a show-cause order, dated June 13, 2018,
directing the parties to file evidence and argument in response to the following
question: “Would the agency have filed a complaint under 5 U.S.C. § 7521
seeking the same action, i.e., a 60-day suspension, in the absence of the
respondent’s protected disclosures?” RPFR File, Tab 14. Both parties
responded. RPFR File, Tabs 15-16. In its response, however, the agency did not
answer the question posed, but argued more generally that it would have “filed a
complaint under 5 U.S.C. § 7521” in the absence of the respondent’s
whistleblowing. RPFR File, Tab 15 at 4.
Under these circumstances, we find it appropriate to remand the case again
to the presiding ALJ for further development of the record, if necessary, and a
finding as to whether the agency proved by clear and convincing evidence that it
would have filed a complaint seeking a 60-day suspension absent the respondent’s
15
protected disclosures. See Shibuya, 119 M.S.P.R. 537, ¶ 37 (finding that the
administrative judge was in the best position to conduct a revised Carr factors
analysis, having heard the live testimony and made credibility determinations).
In the event the agency shows by clear and convincing evidence that it would
have filed a complaint seeking a 60-day suspension in the absence of the
respondent’s protected disclosures, the presiding ALJ should find good cause to
impose the requested penalty.
Because it has yet to be determined whether the respondent has established
his claim of whistleblowing reprisal, we do not make a final determination as to
whether the agency has established good cause to impose a 60-day suspension.
However, in the event the presiding ALJ finds the agency has met its burden
under Carr, the ALJ should make a new determination of the appropriate penalty
in accordance with the discussion below.
Regarding the nature and seriousness of the offense, we agree with the
presiding ALJ that the respondent’s failure to comply with the directives at issue
in specifications 1 and 3 of Charge I should be considered in light of the
controversial legal status of HALLEX I-2-6-10. RID at 36. While we have found
that the respondent was indeed bound by HALLEX I-2-6-10, this does not
preclude us from acknowledging that he had sincere and educated doubts about
the validity of the policy, and that his conduct, though repeated and intentional,
was not malicious or motivated by personal gain.14
Nonetheless, it is well established that ALJs may be disciplined for failure
to comply with instructions that are unrelated to their decisional independence, as
we have found to be the case with the directives at issue here. See Abrams v.
Social Security Administration , 703 F.3d 538, 545 (Fed. Cir. 2012). In any event,
the respondent’s doubts concerning the interpreter policy have no bearing on his
failure to comply with the directive at issue in specification 2 of Charge I.
14 The presiding ALJ was himself entitled to respectfully express his continued
reservations about HALLEX I-2-6-10, and we find he did so without defying our
remand instructions or departing from the law of the case.
16
Considering as well that the respondent’s failure to comply with instructions was
repeated and led to the filing of complaints against the agency, w e find the
presiding ALJ underestimated the seriousness of the offense. See Social Security
Administration v. Manion , 19 M.S.P.R. 298, 301 -03 (1984) (finding a suspension
penalty warranted for an ALJ’s adamant refusal to set or conduct hearings “until
matters involving the use of clerical and support personnel [were] resolved to his
satisfaction”; the proven charge was a serious offense, especially given that, as an
ALJ, the respondent “occupie[d] a high and prominent federal office, one
requiring that its incumbents conduct themselves in a fitting manner”).
The presiding ALJ also erred in finding that the respondent had no prior
discipline. RID at 37. The record reflects that on November 19, 2013, the
respondent received a written reprimand for his failure to comply with previous
directives by the HOCALJ to rescind his decision to deny interpreters to the three
claimants referenced in Charge III. IAF, Tab 93 at 20-23. To the extent the
respondent contends the reprimand was itself the result of reprisal for his
protected disclosures, that allegation may be of relevance in assessing the Carr
factors. Cf. Whitmore, 680 F.3d at 1376 (finding that the administrative judge
erred in failing to consider whether the conduct upon which the appellant’s
removal was premised might not have occurred but for the agency’s retaliatory
actions creating a hostile work environment). However, for purposes of
determining an appropriate penalty, the Board’s review of a prior disciplinary
action is limited to determining whether that action is clearly erroneous, if the
employee was informed of the action in writing, the action is a matter of record,
and the employee was permitted to dispute the charges before a higher level of
authority than the one that imposed the discipline. Bolling v. Department of the
Air Force, 9 M.S.P.R. 335, 339 -40 (1981). We find that these requirements are
satisfied, and that the presiding ALJ erred in considering the respondent’s
disciplinary record as a mitigating factor. For the same reason, he also erred in
17
finding that a suspension would be contrary to a policy of progressive
discipline.15 RID at 46-47. We instead conclude that, absent a finding of
whistleblowing reprisal, the Douglas factors would support a finding of good
cause to impose a 60-day suspension.
ORDER
For the reasons discussed above, we remand this case to the presiding ALJ
for further adjudication in accordance with this Remand Order. The presiding
ALJ may, at his discretion, reopen the record for further development, including a
supplemental hearing if necessary. In the event the presiding ALJ finds that the
agency did not establish by clear and convincing evidence that it would have filed
a complaint seeking a 60-day suspension in the absence of the respondent’s
protected disclosures, he should deny the complaint. In the event the presiding
ALJ finds that the agency has met its burden under the clear and convincing
evidence test, he should find that the agency has shown good cause to suspend the
respondent for 60 days.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
15 Because the directives at issue in the reprimand were not the same as those at issue in
the agency’s complaint, we find no merit to the respondent’s suggestion that the
proposed 60-day suspension would constitute double punishment. See Bowen v.
Department of the Navy , 112 M.S.P.R. 607, ¶ 13 (2009), aff’d, 402 F. App’x 521 (Fed.
Cir. 2010). | Butler_Larry_J_CB-7521-14-0014-B-1_Remand_Order.pdf | 2024-01-08 | null | CB-7521-14-0014-B-1 | NP |
2,552 | https://www.mspb.gov/decisions/nonprecedential/Bradley_Rich_DA-1221-22-0365-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICH BRADLEY,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-1221-22-0365-W-1
DATE: January 8, 2024
THIS ORDER IS NONPRECEDENTIAL1
Michael Kleinman , Esquire, Houston, Texas, for the appellant.
Barry D. Elliott , Austin, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for failure to state a claim
upon which relief can be granted. 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
¶2The appellant was appointed to the position of Physician (Aerospace
Medicine) on January 31, 2021. Initial Appeal File (IAF), Tab 10 at 35.
The agency cited provisions of the National Defense Authorization Act for Fiscal
Year 2017 (2017 NDAA), Pub. L. No. 114-328, 130 Stat. 2000 (2016), as the
legal authority for the appointment. Id. He was terminated during his trial period
effective January 14, 2022. Id. at 11-12. The appellant filed a complaint with the
Office of Special Counsel (OSC) alleging that the agency terminated him and
initiated a Quality Assurance Investigation (QAI) in reprisal for whistleblowing.
IAF, Tab 1 at 9-10, Tab 4 at 32-45. After OSC informed the appellant that it was
closing its investigation into his complaint, he filed this IRA appeal. IAF, Tab 1.
¶3In response to the appeal, the agency argued that the Board could not order
any relief because it lacks the authority to order the Adjutant General of Texas, a
state employee, to take any remedial action regarding the appellant’s employment.
IAF, Tab 10 at 6-7. After giving the appellant an opportunity to address the issue
of relief, IAF, Tab 11, the administrative judge issued an initial decision
dismissing the appeal, IAF, Tab 21, Initial Decision (ID). The administrative
judge found that the Board has jurisdiction over the appellant’s whistleblower
reprisal claim as to his termination, but not as to the QAI. She found that the
appellant’s termination was accomplished by the Adjutant General of Texas and
that under Singleton v. Merit Systems Protection Board , 244 F.3d 1331, 1336-37
(Fed. Cir. 2001), the Board lacks authority to compel a state adjutant general to
perform an ordered act. ID at 8-11. The administrative judge acknowledged that
the 2017 NDAA had extended Board appeal rights to certain National Guard
employees, but she found that it did not specifically grant the Board authority to
order relief against a state entity such as an adjutant general. ID at 11-12.
¶4The appellant has filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. He argues that the Board has authority to
order effective relief in this case, whether by ordering the Department of the2
Air Force to provide relief or by treating the Texas National Guard as a Federal
agency for purposes of this appeal. Id. at 16-24. He also argues that the
administrative judge erred in finding that the Board lacks jurisdiction over his
claim that the agency initiated an investigation in reprisal for his whistleblowing.
Id. at 10-16. The agency has responded in opposition to the appellant’s petition
for review, PFR File, Tab 3, and the appellant has filed a reply, PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the Board lacks jurisdiction over
the appellant’s claim that the agency initiated an investigation in reprisal for
whistleblowing.
¶5On petition for review, the appellant challenges the administrative judge’s
finding that the Board lacks jurisdiction over his claim that the agency initiated a
QAI about him in reprisal for his protected disclosures and activities.2 PFR File,
Tab 1 at 10-16. For the reasons set forth below, we agree with the administrative
judge.
¶6The agency initiated the allegedly retaliatory QAI in March 2022,
IAF, Tab 4 at 24-25, approximately 2 months after the appellant’s termination,
IAF, Tab 10 at 11. The administrative judge found that the Board lacked
jurisdiction over the claim arising out of the QAI both because the appellant was
neither an employee nor an applicant for employment at the time it was initiated,
and because the QAI was neither a personnel action covered under 5 U.S.C.
§ 2302(a)(2)(A) nor closely related to a personnel action. ID at 6-8.
¶7The right to file an IRA appeal derives from 5 U.S.C. § 1221(a), which
provides a right to seek corrective action before the Board to “an employee,
former employee, or applicant for employment.” Maloney v. Executive Office of
the President, Office of Administration , 2022 MSPB 26, ¶ 33. Although former
2 On petition for review, neither party challenges the administrative judge’s finding that
the Board has jurisdiction over the appellant’s claim that the agency terminated him in
reprisal for his protected disclosures and activities. ID at 2-6, 8. We see no reason to
disturb that finding.3
employees are included among those who can seek corrective action from the
Board, they cannot do so for matters occurring after their employment.
See Guzman v. Office of Personnel Management , 53 F. App’x 927, 929-30
(Fed. Cir. 2002) (holding that a former employee may not seek corrective action
for alleged disclosures made or retaliatory acts taken after his employment
ended)3; Weed v. Social Security Administration , 113 M.S.P.R. 221, ¶ 11 (2010)
(citing this principle from Guzman with approval). Section 2302(b)(8) prohibits
any employee in a position of authority from taking, failing to take, or threatening
to take “a personnel action with respect to any employee or applicant.” 5 U.S.C.
§ 2302(b)(8) (emphasis added). Section 2302(b)(9) similarly prohibits personnel
actions taken “against any employee or applicant” because of certain classes of
protected activity. 5 U.S.C. § 2302(b)(9) (emphasis added). Therefore, we agree
with the administrative judge that the appellant cannot seek corrective action for
an alleged personnel action that occurred after he was no longer a Federal
employee.
The Board has authority to grant relief in this appeal.
¶8The Board has the authority to “order any Federal agency or employee to
comply with any order or decision issued by the Board” in matters falling within
its jurisdiction. 5 U.S.C. § 1204(a)(1)-(2). In Singleton, 244 F.3d at 1333,
1336-37, the Federal Circuit determined that the Board could not order an
adjutant general to provide relief to a National Guard technician employee.
It reasoned that an adjutant general is not a Federal employee, and a National
Guard, even if an agency, “can only act through its adjutant general.” Id.
The administrative judge applied the holding in Singleton and determined that the
2017 NDAA did not compel a different outcome. ID at 11-12. This was error.
3 The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds its reasoning persuasive. LeMaster v.
Department of Veterans Affairs , 123 M.S.P.R. 453, ¶ 11 n.5 (2016).4
¶9The holding in Singleton that the Board lacks the authority to issue
enforceable orders to remedy improper employment actions taken against
National Guard technicians has been abrogated by Congress’s changes to
32 U.S.C. § 709, enacted as part of the 2017 NDAA. Erdel v. Department of the
Army, 2023 MSPB 27, ¶¶ 11-16. In any event, the appellant was not a dual status
National Guard technician. The agency appointed the appellant under the
authority of section 932 of the 2017 NDAA.4 IAF, Tab 10 at 35. Section 932
amended 10 U.S.C. § 10508 to authorize the Chief of the National Guard Bureau
to employ individuals within the National Guard Bureau and the National Guard
of each state and territory. 130 Stat. at 2363 (codified as amended at 10 U.S.C.
§ 10508(b)(1)). Section 932 further authorizes the Chief of the National Guard
Bureau to designate adjutants general to employ National Guard employees. Id.
(codified at 10 U.S.C. § 10508(b)(2)). Section 932 provides that the adjutant
general and National Guard of a jurisdiction are responsible for taking and
defending any personnel action against employees appointed under its authority,
stating as follows:
The adjutant general of the jurisdiction concerned shall be
considered the head of the agency and the National Guard of the
jurisdiction concerned shall be considered the employing agency of
the individual and the sole defendant or respondent in any
administrative action.
The National Guard of the jurisdiction concerned shall defend any
administrative complaint, grievance, claim, or action, and shall
promptly implement all aspects of any final administrative order,
judgment, or decision.
130 Stat. at 2363-64 (codified at 10 U.S.C. § 10508(b)(3)(A)-(B)). It would be
implausible for Congress to have specifically provided for an administrative
remedy for improper personnel actions, but for there to be no relief available
4 The agency also cited section 1084 of the 2017 NDAA, codified at 10 U.S.C. § 10217,
as authority for the appellant’s appointment. IAF, Tab 10 at 35. However, that
provision does not actually authorize the appointment of new employees such as the
appellant. See 130 Stat. at 2421.5
from the Board, which has jurisdiction under 5 U.S.C. § 1221 to adjudicate
whistleblower reprisal claims arising out of such actions. See Erdel, 2023 MSPB
27, ¶ 11 (observing that it would be “beyond strange” for Congress to have
specifically amended two statutory provisions in different titles of the United
States Code to provide for Board appeal rights to National Guard technicians, but
for there to be no relief available from the Board).
¶10We note that whereas Erdel involved an appeal of a chapter 75 removal
action, the instant case involves a request for corrective action under 5 U.S.C.
§ 1221 for alleged whistleblower reprisal. However, that distinction does not
affect the Board’s ability to order relief here. Section 932 authorizes adjutants
general to accomplish “all personnel actions or conditions of employment,
including adverse actions under title 5,” and to defend “any administrative
complaint, grievance, claim, or action arising from, or relating to, such a
personnel action or condition of employment.” 130 Stat. at 2363-64 (codified at
10 U.S.C. § 10508(b)(3)). Based on that broad statutory language, we find that
Congress did not intend to limit the Board’s remedial authority regarding
National Guard employees to a particular subset of personnel actions or types of
appeals.
¶11Accordingly, we vacate the administrative judge’s finding that the appellant
failed to state a claim upon which relief can be granted.6
ORDER
¶12For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.5
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
5 After the close of the record on review, the appellant requested leave to file an
additional pleading to address the recent decision of the U.S. Supreme Court in Ohio
Adjutant General’s Department v. Federal Labor Relations Authority , 598 U.S. 449,
453-54 (2023). PFR File, Tab 6. He subsequently requested further leave to file an
additional pleading to address a recent nonprecedential decision in another Board
appeal involving the Board’s authority to order relief in an appeal filed by a National
Guard employee. PFR File, Tab 8. The Board generally does not permit any pleadings
on review other than a petition for review, cross petition for review, and the responses
and replies to those petitions. 5 C.F.R. § 1201.114(a)(5). No other pleading is allowed
unless the party seeking leave demonstrates the need for such a pleading. See 5 C.F.R.
§ 1201.114(a)(5) (requiring that a motion for leave to file an additional pleading on
review “describe the nature and need for the pleading”). The Board has already
addressed the Supreme Court’s decision in its recent Opinion and Order in Erdel, 2023
MSPB 27, ¶¶ 6, 14, which was issued after the appellant filed his first request for leave.
Our decision in this case is consistent with the nonprecedential decision that is the basis for
the appellant's most recent motion, and we do not require any additional pleadings
addressing that decision. Because there is no need for additional argument, we deny the
appellant’s requests for leave. 7 | Bradley_Rich_DA-1221-22-0365-W-1__Remand_Order.pdf | 2024-01-08 | RICH BRADLEY v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DA-1221-22-0365-W-1, January 8, 2024 | DA-1221-22-0365-W-1 | NP |
2,553 | https://www.mspb.gov/decisions/nonprecedential/Serson_Paul_NY-0752-18-0053-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAUL SERSON,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
NY-0752-18-0053-I-1
DATE: January 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
L
awrence Berger , Esquire, Glen Cove, New York, for the appellant.
Jeffrey M. Feinblatt , Esquire, Newark, New Jersey, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s removal. On petition for review, the appellant argues
that the administrative judge improperly affirmed the charge of conduct
unbecoming a law enforcement officer and found unproven his claim of disparate
penalties. 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 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:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Serson_Paul_NY-0752-18-0053-I-1_Final_Order.pdf | 2024-01-08 | PAUL SERSON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-0752-18-0053-I-1, January 8, 2024 | NY-0752-18-0053-I-1 | NP |
2,554 | https://www.mspb.gov/decisions/nonprecedential/Estes_Johanna_H_DC-1221-18-0573-W-1_Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHANNA H. ESTES,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-1221-18-0573-W-1
DATE: January 5, 2024
THIS ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Bud Davis , 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 individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the petition for review, REVERSE the
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
During the time period relevant to this appeal, the agency employed the
appellant as the Director of the Audit Professional Standards Division within
Regulatory Audit (RA), a component of the Office of Trade at the Bureau of
Customs and Border Protection (CBP).2 Initial Appeal File (IAF), Tab 1 at 1,
Tab 4 at 12. In this position, she supervised the Audit Policy Branch, the
Continuing Professional Education (CPE) Branch, and the Quality Assurance
(QA) Branch. IAF, Tab 12 at 12-13.
According to the appellant, she met with the Executive Director of RA on
July 18, 2017, for a briefing regarding a reorganization of RA Headquarters and
he told her that it would be effective in 6 days, on July 24, 2017. IAF, Tab 11
at 20. After the briefing, on July 19, 2017, the appellant emailed the Deputy
Executive Assistant Commissioner (DEAC), the Executive Assistant
Commissioner (EAC), the Executive Director, and her supervisor regarding her
concerns about the effect of the reorganization on RA’s ability to carry out its
mission and requesting a meeting with the DEAC. Id. at 22, 33-34. According to
the appellant, on or about July 20, 2017, she refused her supervisor’s instruction
to assign a CPE employee to perform a QA assignment review and to document
her inevitable failure, which would set her up for a performance -based removal,
and objected to her supervisor’s instruction to document the failure of an
unqualified employee who was to be moved into the QA Branch Chief position.
Id. at 7-8, 12, 23-24. The agency ultimately did not implement the RA
reorganization. Id. at 23; IAF, Tab 12 at 5-6.
After seeking corrective action from the Office of Special Counsel (OSC)
and receiving a March 28, 2018 notice of closure, the appellant timely filed the
instant IRA appeal and requested a hearing. IAF, Tab 1. The administrative
judge informed the appellant of her burden of proof on jurisdiction and directed
2 According to the agency, the Audit Professional Standards Division is now the Audit
Performance and Excellence Division. IAF, Tab 4 at 12-13.
3
her to submit evidence and argument on the issue. IAF, Tab 8. In response, the
appellant alleged that, in July 2017, she disclosed gross mismanagement when she
informed the Executive Director, EAC, and DEAC, among others, that the
reorganization plan was “unworkable” and would “eliminat[e] the employees
necessary to carry out the mission of the [QA] Branch.” IAF, Tab 11 at 4-5,
11-12. She also alleged that she disclosed a violation of the collective bargaining
agreement and merit systems principles when she objected to her supervisor’s
instruction to document the failure of an unqualified employee who would be
moved into the QA Branch Chief position and to assign a QA project to a non -QA
employee and then document her failures. Id. at 11-12. She alleged that,
although the agency did not complete the reorganization, the Executive Director
and her supervisor began retaliating against her shortly after her disclosures of
gross mismanagement and “illegal personnel actions” by sending her a July 29,
2017 hostile email, issuing her an October 30, 2017 letter of counseling and
expectations, removing her from the day -to-day responsibilities of two of the
three branches under her supervision, lowering her performance rating, excluding
her from RA weekly management meetings, and subjecting her to harassment and
a hostile work environment. Id. at 13-16.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision finding that, although the appellant exhausted her
administrative remedy with OSC, she failed to nonfrivolously allege that she
made any protected disclosure. IAF, Tab 13, Initial Decision (ID) at 3-8. Thus,
he dismissed the appeal for lack of jurisdiction. ID at 8.
The appellant has filed a petition for review of the initial decision, and the
agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.
ANALYSIS
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),
the Board has jurisdiction over an IRA appeal if the appellant has exhausted her
4
administrative remedies before OSC and makes nonfrivolous allegations of the
following: (1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D); and (2) the protected disclosure or activity was a contributing factor
in the agency’s decision to take or fail to take, or threaten to take or fail to take, a
personnel action as defined by 5 U.S.C. § 2302(a).3 Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1221(e)(1), 2302(b)(8).
The administrative judge properly found that the appellant exhausted her
administrative remedy as to the claims raised in this appeal.
The Board may only consider those disclosures, activities, and personnel
actions that the appellant raised before OSC. See Scoggins v. Department of the
Army, 123 M.S.P.R. 592, ¶ 9 (2016). T he substantive requirements of
exhaustion are met when an appellant has provided OSC with a sufficient basis
to pursue an investigation. Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 10. Here, we agree with the administrative judge that the
appellant exhausted the claims raised in this appeal. ID at 3. Specifically, in a
September 11, 2017 OSC complaint and subsequent correspondence, the appellant
informed OSC that, in retaliation for disclosing concerns regarding the Executive
Director’s handling of the RA reorganization and for objecting to instructions to
harm employee’s careers, her supervisor and/or the Executive Director issued her
a July 29, 2017 “counseling or reprimand email,” issued her a letter of counseling
and expectations, lowered her performance rating, removed significant
management responsibilities from her, left her out of meetings, harassed her, and
subjected her to a hostile work environment. IAF, Tab 1 at 9-38.
3 The relevant events occurred after the December 27, 2012 effective date of the WPEA.
Pub. L. No. 122-199, § 202, 126 Stat. 1465, 1476. Therefore, we have applied the
WPEA to this appeal.
5
The appellant made a nonfrivolous allegation of a protected disclosure.
A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of fact that, if proven, would show that the appellant disclosed a matter
that a reasonable person in her position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno,
123 M.S.P.R. 230, ¶ 6. The test to determine whether a putative whistleblower
has a reasonable belief in the disclosure is an objective one: whether a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the actions of the
agency evidenced a violation of any law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. Id.; see 5 U.S.C. § 2302(b)(8).
Any doubt or ambiguity as to whether the appellant made nonfrivolous
jurisdictional allegations should be resolved in favor of finding jurisdiction.
Ingram v. Department of the Army , 114 M.S.P.R. 43, ¶ 10 (2010).
Gross mismanagement
Gross mismanagement means more than de minimis wrongdoing or
negligence; it means a management action or inaction that creates a substantial
risk of significant adverse impact on the agency’s ability to accomplish its
mission. Swanson v. General Services Administration, 110 M.S.P.R. 278, ¶ 11
(2006). Here, the appellant alleged that she disclosed an act of gross
mismanagement when she informed senior agency officials that the RA
reorganization would remove all current employees from the QA Branch and
would make it impossible for the QA Branch to carry out its mission. IAF,
Tab 11 at 6, 11, 24. However, the administrative judge found that her disclosure
did not rise to the level of gross mismanagement but rather amounted to a mere
difference of opinion in a lawfully exercised policy debate. ID at 5-6. He further
found that there was no evidence to indicate that the reorganization created a
substantial risk of adverse impact on the agency’s ability to complete its mission
6
or that the appellant had a reasonable belief that it did, as evidenced by her
statement in her July 19, 2017 email to the DEAC that the organizational changes
to RA “will enhance RA’s ability to support the mission.” ID at 6 (quoting IAF,
Tab 11 at 33). The administrative judge also found that, because the agency did
not implement the proposed reorganization, her concerns were at best speculative,
and even if the agency had implemented the reorganization, it would have only
affected about 5 out of 60,000 CBP employees, the appellant would have
maintained control over the Branch, and the Executive Director stated that there
was a strategy for a transition timeframe to ensure no immediate or significant
disruption. ID at 6.
On review, the appellant argues that the administrative judge erred in
finding that she did not make a nonfrivolous allegation that she had a reasonable
belief that her disclosures regarding the RA reorganization evidenced gross
mismanagement. PFR File, Tab 1 at 10-15. Specifically, she argues that the
administrative judge took her statement regarding changes enhancing RA’s ability
to support the mission out of context, improperly resolved conflicting assertions,
confused the size of the QA Branch with its significance and contribution, and
erred in relying on the fact that the agency did not ultimately implement the
reorganization. Id. For the reasons that follow, we agree.
As the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has
recently stated, “[t]he Board may not deny jurisdiction by crediting the agency’s
interpretation of the evidence as to whether the alleged disclosures fell within the
protected categories or whether the disclosures were a contributing factor to an
adverse personnel action.” Hessami v. Merit Systems Protection Board , 979 F.3d
1362, 1369 (Fed. Cir. 2020). Here, we agree with the appellant that the
administrative judge erred by crediting the Executive Director’s statement in an
email to the DEAC that there was a transition timeline for the reorganization to
ensure “no immediate or significant disruption,” over the appellant’s allegation
that he told her the reorganization would be effective in 6 days and that all
7
current QA Branch employees would be moved at that time. PFR File, Tab 1
at 10, 14-15; ID at 6-7 (citing IAF, Tab 11 at 36); IAF, Tab 11 at 4 -5, 20, 33. For
the purposes of determining whether the appellant has made a nonfrivolous
allegation that her disclosure was protected, we accept as true her contention that
the Executive Director told her that the RA reorganization was approved, that it
would be implemented in 6 days, and that the current QA Branch staff would all
be moved at that time. IAF, Tab 11 at 4-5, 11, 20.
We also agree with the appellant that the administrative judge took her
statement that some changes would enhance RA’s ability to support its mission
out of context. PFR File, Tab 1 at 13. Although the appellant stated in her
July 19, 2017 email to the DEAC that “[t]here are many exciting changes that will
enhance RA’s ability to support the mission,” it is clear that she was not referring
to the RA reorganization described to her by the Executive Director as one of
those “exciting changes.” IAF, Tab 11 at 33-34. Rather, she stated that she was
“disappointed” to learn that the RA reorganization, as described to her by the
Executive Director, included the “complete dissolution of the current QA Branch
which was slated to occur . . . next Monday” and expressed her concern that QA
staff was being moved before the positions could be filled. Id. She explained
that, without QA staff in place, the Branch could not operate, the Quality
Refresher Training could not continue, and the QA Branch Chief would not have
support staff to finalize monthly reviews for the fiscal year 2018 RA Peer
Review. Id. She concluded that, “with a leadership message of no confidence,
removal of 100% of staff simultaneously without backfills in place, and an
upcoming peer review, I believe the mission will be significantly impacted.” Id.
at 34. Thus, contrary to the administrative judge’s finding, the appellant’s email
does not suggest that she did not believe that the RA reorganization created a
substantial risk of adverse impact on the agency’s mission. ID at 6.
We further agree with the appellant that the administrative judge erred in
finding that the appellant did not make a nonfrivolous allegation that her
8
disclosure was protected, in part, because the agency did not ultimately
implement the reorganization. PFR File, Tab 1 at 15; ID at 6. A disclosure of
potential wrongdoing set forth in section 2302(b)(8) may be protected, even if the
agency does not carry out the action disclosed, if the disclosure evidences a
reasonable belief of imminent wrongdoing.4 See Reid v. Merit Systems Protection
Board, 508 F.3d 674, 677-78 (Fed. Cir. 2007) (stating that a reasonable belief that
a violation of law is imminent is sufficient to confer Board jurisdiction over an
individual right of action appeal); see also Ward v. Department of the Army ,
67 M.S.P.R. 482, 488 -89 (1995) (finding that a disclosure of possible conflict of
interest was protected because the potential wrongdoing was “real and
immediate”). Here, we find that the appellant has nonfrivolously alleged a
reasonable belief that the RA reorganization was imminent. IAF, Tab 11 at 20,
33. Thus, the fact that the agency ultimately did not carry out the reorganization
is no bar to finding a nonfrivolous allegation that this disclosure is protected.
Finally, we agree with the appellant that the administrative judge
improperly assumed that the fact that the QA Branch had only 5 employees (out
of 60,000 employees at CBP) established that its elimination would not have a
significant impact on the agency’s operation. PFR File, Tab 1 at 14. On review,
the appellant explains that, without a QA Branch, the agency could not conform
to Government Auditing Standards and would lose its status as a Generally
Accepted Government Auditing Standard Compliant Organization, which serves
as a “strong deterrent to importer litigation.” Id. at 11-13. She further explains
that the absence of an auditing function would lead to additional legal challenges
to the tariffs, fines, and assessments imposed and cost the Government revenue.
Id. at 11. We find these allegations are sufficient to nonfrivolously allege that the
4 As the Federal Circuit has observed, the “government is far better served by having
the opportunity to prevent illegal, wasteful, and abusive conduct than by notice that it
may only act to reduce the adverse consequences from such conduct that has already
occurred.” Reid v. Merit Systems Protection Board , 508 F.3d 674, 678 (Fed. Cir. 2007).
9
appellant reasonably believed that the lack of a QA Branch would have a
significant impact on the agency’s ability to carry out its mission.
In light of the foregoing and resolving any doubt or ambiguity in favor of
finding jurisdiction, we find that the appellant nonfrivolously alleged that she
made a protected disclosure of gross mismanagement when she informed agency
officials that the RA reorganization slated to be effected in 6 days would remove
all current QA Branch staff and would prevent RA from carrying out its mission.
See Swanson, 110 M.S.P.R. 278, ¶ 11 (finding that the appellant nonfrivolously
alleged that she disclosed an act of gross mismanagement when he informed
agency officials that his supervisor undermined the ability of the agency’s Small
Business Office to perform its mission by drastically cutting the number of
employees).
Violation of law, rule, or regulation
As noted above, the appellant also alleged that she disclosed violations of
the collective bargaining agreement and merit system principles when she
objected to her supervisor’s instructions to take “illegal personnel actions” that
would have “serious adverse effects on certain employees’ careers.” IAF, Tab 11
at 7-8, 11-12. Specifically, she alleged that she objected to the plan to move a
certain employee into the QA Branch Chief position because she did not have the
requisite experience, training, or skills, as well as to her supervisor’s instruction
to document her failure. Id. at 8, 12, 22-23. She also alleged that she refused the
instruction from her supervisor and the Executive Director to assign a CPE
employee to perform a QA assignment review and to document her inevitable
failure to support a performance-based removal because it violated the merit
systems principles and constituted a prohibited personnel practice. Id. at 7-8, 23.
The appellant alleged that she told her supervisor that she would not assign
anyone outside of the QA Branch to do a QA assignment for which she was not
trained and would be unable to do. Id. at 7-8, 23.
10
In the initial decision, the administrative judge found that the appellant
failed to make a nonfrivolous allegation that she disclosed a violation of law,
rule, or regulation because the RA reorganization constituted a policy decision
within the discretion of the agency and because an agency has the right to fill
vacancies in the competitive service by reassignment. ID at 7. The
administrative judge also found that, because the reorganization did not actually
take place, the appellant could not have had a reasonable belief that a violation
occurred. ID at 7-8. On review, the appellant argues that the administrative
judge ignored her allegations that the employees were not qualified for the
position or project and that she was ordered to document their failure for the
purposes of a performance-based demotion or removal. PFR File, Tab 1 at 16-17.
She further argues that these improper assignments constitute clear violations of
the merit systems principles.5 Id.
At the jurisdictional stage, the appellant is burdened only with making a
nonfrivolous allegation that she reasonably believed that she disclosed a violation
of law, rule, or regulation; she is not required to prove that the condition she
disclosed actually established a violation of law, rule, or regulation. See Salerno,
123 M.S.P.R. 230, ¶ 6. We find that the appellant has met this burden.
Specifically, a disinterested observer with the relevant knowledge could
reasonably believe that knowingly assigning employees duties that they are not
qualified for or able to perform and documenting their inevitable failure in order
to take a performance -based action against them violates the merit systems
principles, which provide that the Federal work force should be used efficiently
and effectively and that employees should be protected against arbitrary action,
5 On review, the appellant does not renew her argument that the actions directed by her
supervisor would have violated the employees’ bargaining unit rights. PFR File, Tab 1.
Nonetheless, we note that a collective bargaining agreement is not a law, rule, or
regulation. Rather, it is a contract. E.g., Giove v. Department of Transportation,
230 F.3d 1333, 1340 (Fed. Cir. 2000). Accordingly, the appellant has not
nonfrivolously alleged that she disclosed a violation of law, rule, or regulation insofar
as she informed her supervisor and others that the directed assignments violated the
employees’ bargaining unit rights. IAF, Tab 11 at 6-8.
11
5 U.S.C. § 2301(b)(5), (8)(A), and constitutes a prohibited personnel practice
under 5 U.S.C. § 2302(b)(12). See McDonnell v. Department of Agriculture ,
108 M.S.P.R. 443, ¶¶ 10-13 (2008) (finding that the appellant made a
nonfrivolous allegation that she made a protected disclosure because her alleged
disclosure concerned hiring and selection improprieties under 5 U.S.C. § 2301
that could have constituted prohibited personnel practices under 5 U.S.C.
§ 2302(b)(6) and (b)(12)); Schaeffer v. Department of the Navy , 86 M.S.P.R. 606,
¶¶ 9-10 (2000) (finding that the appellant made a nonfrivolous allegation that he
disclosed a violation of law and an abuse of authority regarding personnel
selections being made without regard to merit), overruled on other grounds by
Covarrubias v. Social Security Administration , 113 M.S.P.R. 583, ¶ 9 n. 2 (2010),
overruled by Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677
(2014). We further find that the appellant had a reasonable belief that the
violations were imminent, and thus may be protected even though it appears that
the agency did not ultimately reassign the employee to the QA Branch Chief
position or assign the CPE employee to perform a QA assignment review. See
Reid, 508 F.3d at 677-78.
In light of the foregoing, we find that the appellant nonfrivolously alleged
that she disclosed a violation of law when she refused her supervisor’s
instructions to assign the CPE employee a QA assignment and to document her
failure, and when she objected to the plan to reassign an unqualified employee to
the QA Branch Chief position and to document her failure, on the ground that
these actions violated the merit systems principles and constituted a prohibited
personnel practice.
The appellant nonfrivolously alleged that she engaged in protected activity under
5 U.S.C. § 2302(b)(9)(D).
Pursuant to 5 U.S.C. § 2302(b)(9)(D), it is a prohibited personnel practice
to take an action against an employee for “refusing to obey an order that would
12
require the individual to violate a law, rule, or regulation.”6 PFR File, Tab 1. For
the reasons discussed above, we find that the appellant nonfrivolously alleged
that she engaged in protected activity under section 2302(b)(9)(D) when she
refused to assign a CPE employee to perform a QA assignment review and to
document her failure on the ground that doing so would violate the merit systems
principles and constitute a prohibited personnel practice.7
The appellant nonfrivolously alleged that the agency subjected her to several
covered personnel actions.
As set forth above, the next jurisdictional inquiry is whether the appellant
has nonfrivolously alleged that her protected disclosure was a contributing factor
in the agency’s decision to take, fail to take, or threaten to take or fail to take a
personnel action. Salerno, 123 M.S.P.R. 230, ¶ 5; see 5 U.S.C. §§ 1221(e)(1),
2302(b)(8). A “personnel action” is defined as an appointment; a promotion; an
action under 5 U.S.C. chapter 75 or other disciplinary or corrective action; a
detail, transfer, or reassignment; a reinstatement; a restoration; a reemployment; a
performance evaluation under 5 U.S.C. chapter 43 or under Title 38; a decision
about pay, benefits, or awards concerning education or training if the education or
training reasonably may be expected to lead to an appointment, promotion,
performance evaluation, or other action described in 5 U.S.C. § 2302(a)(2)(A); a
decision to order psychiatric testing or examination; the implementation or
6 Prior to June 14, 2017, 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.” Fisher v. Department of the Interior , 2023 MSPB 11,
¶¶ 11-12. However, on June 14, 2017, the President signed into law the Follow the
Rules Act (FTRA), which amended section 2302(b)(9)(D) by inserting “, rule, or
regulation” after “law.” Id., ¶ 12. Because the events at issue in this appeal occurred
after the effective date of the FTRA, the amended section 2302(b)(9)(D) applies to this
appeal.
7 Although the appellant also contends that she objected to the agency’s plan to move
the employee into the QA Branch Chief position and to document her failure, she does
not allege that she actually refused any instruction in connection with this action. IAF,
Tab 11. Thus, we do not find that her allegations regarding this violation constitute a
nonfrivolous allegation of protected activity under section 2302(b)(9)(D).
13
enforcement of any nondisclosure policy, form, or agreement; and any other
significant change in duties, responsibilities, or working conditions. 5 U.S.C.
§ 2302(a)(2)(A).
Here, the appellant alleged that her supervisor and/or the Executive
Director took the following personnel actions against her: sent her a July 29,
2017 “hostile” email admonishing her; issued her a October 30, 2017 letter of
counseling and expectations; harassed her and subjected her to a hostile work
environment; excluded her from RA weekly management meetings; removed her
from the day-to-day responsibilities of two of the three branches under her
supervision; and lowered her performance rating for fiscal year 2017. IAF,
Tab 1, Tab 11 at 14-16. For the reasons that follow, we find that the appellant
has made a nonfrivolous allegation that some of these actions constitute covered
personnel actions.
A performance evaluation is a covered personnel action. 5 U.S.C.
§ 2302(a)(2)(A)(viii); Frederick v. Department of Veterans Affairs , 63 M.S.P.R.
563, 572 (1994). Here, the appellant alleged that her “glowing performance
review at mid-year became a barely meets expectations,” and the record reflects
that, for fiscal year 2017, her interim rating was “exceeded expectations” and her
final rating was “achieved expectations.” IAF, Tab 4 at 41, 11 at 15-16, 89. We
find that this lowered performance rating for fiscal year 2017 constitutes a
nonfrivolous allegation of a covered personnel action.
We also find that the appellant nonfrivolously alleged that the agency
subjected her to a significant change in duties, responsibilities, or working
conditions when it removed two of the three branches from her supervision and
excluded her from weekly RA management meetings. IAF, Tab 11 at 9 at 23-24;
see Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 17 (finding
that the appellant nonfrivolously alleged that the agency subjected him to a
significant change in duties, responsibilities, or working conditions when he
14
alleged that his chain of command directed him to stop attending leadership
meetings and performing certain extra duties).
The Executive Director’s July 29, 2017 email “admonishing” the appellant
for escalating her concerns outside of the chain of command and her supervisor’s
October 30, 2017 letter of counseling and expectations do not constitute one of
the types of personnel actions enumerated in the statute. 5 U.S.C.
§ 2302(a)(2)(A). Nonetheless, such admonishments short of formal discipline
may be considered a threat to take disciplinary action within the meaning of
section 2302(b)(8). For example, the Board has found threatened personnel
actions when a counseling memorandum warned of specific future charges and
discipline if the behavior continued, Campo v. Department of the Army ,
93 M.S.P.R. 1, ¶¶ 7-8 (2002), and when a supervisor stated that an employee
should not expect the same performance rating he had received the year before,
Special Counsel v. Hathaway , 49 M.S.P.R. 595, 600, 608 (1991), aff’d, 981 F.2d
1237 (Fed. Cir. 1992). However, not all general statements setting forth
performance expectations and the consequences of failing to meet them, or even
similar counseling measures directed at particular employees, constitute
actionable “threats” to take adverse action within the meaning of the
Whistleblower Protection Act (WPA). Koch v. Securities and Exchange
Commission, 48 F. App’x 778, 787 (Fed. Cir. 2002).8
Here, the appellant alleged that the July 29, 2017 email from the Executive
Director was hostile and admonished her for “inappropriately contacting the
DEAC and EAC about the reorganization.” IAF, Tab 11 at 14, 23. Before OSC,
she claimed it was a “counseling or reprimand email.” Id. at 132. However, the
email simply reminded her to work through the proper chain of command before
escalating issues to executive management and pointed to several recent instances
where she had failed to do so. Id. at 98-99. It was not disciplinary in nature and
8 The Board may follow a nonprecedential decision of the Federal Circuit when, as here,
it finds its reasoning persuasive. Morris v. Department of the Navy , 123 M.S.P.R. 662,
¶ 13 n.9 (2016).
15
did not threaten any disciplinary action. Id. Thus, we find that the email does
not constitute a covered personnel action. See Ingram v. Department of the Army ,
623 F. App’x 1000, 1004 (Fed. Cir. 2015) (holding that a nondisciplinary letter of
caution did not constitute a personnel action under 5 U.S.C. § 2302(a)(2)(A));
Reeves v. Department of the Army , 101 M.S.P.R. 337, ¶ 11 n.* (2005) (finding
that an appellant failed to raise a nonfrivolous allegation that a memorandum of
counseling was a personnel action when the memorandum informed him of
performance deficiencies and required corrective actions, but did not threaten to
take disciplinary action).
In the October 30, 2017 letter of counseling, the appellant’s supervisor set
forth her concerns regarding the appellant’s disrespectful and insubordinate
conduct and outlined her expectations for the appellant going forward. IAF,
Tab 11 at 127-30. She stated that, “[a]s this is the second time I am counseling
you regarding your behavior, your failure to improve your conduct may result in
disciplinary action” and that “following my instructions is essential to the
successful performance in your duties.” Id. at 129. Although this letter does
refer to possible future discipline, the language is conditional in nature and
constitutes a reminder that future conduct might result in disciplinary action,
which is true for any employee, rather than a specific threat of future discipline.
See Koch, 48 F. App’x at 787 (stating that “[a] wide range of agency rules,
directives, and counseling measures contain the message, implicit or explicit, that
failure to follow those directives or to meet expectations may have adverse
consequences, including possible discharge” and that not all such general
statements constitute threatened action within the meaning of the WPA). Thus,
we find that the letter of counseling does not constitute a threat of future
disciplinary action and therefore does not constitute a covered personnel action.
The appellant also alleged that her supervisor and the Executive Director
harassed her and subjected her to a hostile work environment when they took the
following actions: withheld an agenda from her so “her Division could not
16
prepare and present at a strategy meeting”; denied her a conversation about her
annual performance; told the EAC that her “concerns lacked integrity and she was
making false claims”; “refused to reallocate training funds for refresher training”;
made “openly demeaning comments”; delayed approval of travel authorizations;
“physical removal from her office while on [temporary duty assignment],” and
informed another supervisor that she “was not wanted back in Regulatory Audit
and it would not be good for [her] to return.”9 IAF, Tab 11 at 8-10, 14, 16, 23-24.
Although none of these actions individually constitute a covered personnel action,
we find that these allegations of harassment and hostile work environment, in
combination with the email and letter of letter of counseling discussed above,
amount to a nonfrivolous allegation of a significant change in working conditions.
See Skarada, 2022 MSPB 17, ¶ 18 (finding that the appellant made a
nonfrivolous allegation of a covered personnel action when he alleged that his
chain of command harassed him and subjected him to a hostile work environment
by, among other things, excluding him from meetings and conversations,
subjecting him to multiple investigations, accusing him of “fabricating data” and
of a Privacy Act violation, refusing his request for a review of his position for
possible upgrade, yelling at him on three occasions, and failing to provide him the
support and guidance needed to successfully perform his duties); see also
Holderfield v. Merit Systems Protection Board , 326 F.3d 1207, 1209 (Fed. Cir.
2003) (suggesting that a number of minor agency actions relating to the
appellant’s working conditions may amount to a covered personnel action under
section 2302(a)(2)(A)(xii) collectively, even if they are not covered personnel
actions individually).
9 Although the term “hostile work environment” has a particular meaning in other
contexts, allegations of a hostile work environment may establish a personnel action in
an IRA appeal only if they meet the statutory criteria under 5 U.S.C. § 2302(a)(2)(A),
i.e., constitute a significant change in duties, responsibilities, or working conditions.
Skarada, 2022 MSPB 17, ¶ 16.
17
The appellant nonfrivolously alleged that her protected disclosure and activity
contributed to the agency’s decision to take a personnel action against her.
Having determined that the appellant nonfrivolously alleged that the
agency took covered personnel actions against her when it lowered her
performance evaluation and subjected her to a significant change in duties,
responsibilities, and working conditions, we proceed to the question of whether
she nonfrivolously alleged that her protected disclosures and activity contributed
to the agency’s decision to take these alleged personnel actions. To satisfy the
contributing factor criterion, an appellant need only raise a nonfrivolous
allegation that the fact of, or content of, the protected disclosure was one factor
that tended to affect the personnel action in any way. Ontivero v. Department of
Homeland Security , 117 M.S.P.R. 600, ¶ 21 (2012). 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.
Here, the record establishes that the appellant’s supervisor and the
Executive Director were aware of her disclosure of alleged gross mismanagement
because they were included on the July 19, 2017 email to the DEAC and EAC and
participated in the meeting on July 21, 2017. IAF, Tab 11 at 33 -34, 56-62. In
addition, the appellant has nonfrivolously alleged that her supervisor was aware
of her July 2017 disclosure and activity regarding the merit systems principles
violation because she directed her objections to her supervisor and refused her
instruction to assign a QA review assignment to a non-QA employee and to
document her failure. Id. at 7-8, 12. Because all of the personnel actions at issue
occurred within days or several months of the appellant’s July 2017 disclosures
and activity, we find that the appellant has satisfied the knowledge/timing test
18
and has made a nonfrivolous allegation of contributing factor. See Ontivero,
117 M.S.P.R. 600, ¶ 23 (finding that that a personnel action taken within
approximately 1 to 2 years of the appellant’s disclosures satisfies the
knowledge/timing test).
The appellant has established jurisdiction over her IRA appeal and is entitled to a
hearing.
In light of the foregoing, we find that the appellant has established Board
jurisdiction over this IRA appeal by proving exhaustion of her OSC remedies and
nonfrivolously alleging that she made at least one protected disclosure that was a
contributing factor in at least one covered personnel action. See Groseclose v.
Department of the Navy , 111 M.S.P.R. 194, ¶ 15 (2009). Accordingly, she is
entitled to the hearing she requested. Id.
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Estes_Johanna_H_DC-1221-18-0573-W-1_Remand Order.pdf | 2024-01-05 | JOHANNA H. ESTES v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-1221-18-0573-W-1, January 5, 2024 | DC-1221-18-0573-W-1 | NP |
2,555 | https://www.mspb.gov/decisions/nonprecedential/Velazquez_Jessica_AT-0752-19-0421-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JESSICA VELAZQUEZ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-19-0421-I-1
DATE: January 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
lbert E. Lum , Brooklyn, New York, for the appellant.
James F. Killackey, III , Acushnet, Massachusetts, for the appellant.
Donald Vicini , 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 removal appeal as settled. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). We
FORWARD the appellant’s allegations of agency noncompliance to the Atlanta
Regional Office for docketing and adjudication as a compliance appeal.
BACKGROUND
The appellant filed an appeal with the Board challenging the agency’s
decision to remove her for unacceptable conduct. Initial Appeal File (IAF), Tab 1
at 7, 12-17. During the proceedings, the parties entered into a settlement
agreement in which the agency agreed that, in exchange for the appellant’s
withdrawal of her appeal, it would rescind the removal decision letter; issue her a
letter of warning in lieu of a 14-day suspension for some, but not all, of the
misconduct underlying the removal; and pay her back pay for the period between
April 27 and August 23, 2019. IAF, Tab 20 at 6-7.
After finding that the settlement agreement executed by the parties was
lawful on its face and freely entered into by the parties, the administrative judge
accepted the agreement into the record for enforcement purposes and dismissed
the appeal as settled. IAF, Tab 21, Initial Decision at 1-2. In her petition for
review, the appellant does not challenge the validity of the settlement agreement,
but rather, asserts that the agency violated the settlement agreement by2
calculating the back pay as if the back pay period ended on August 23, 2019.
Petition for Review (PFR) File, Tab 3 at 4-5. She argues that the parties intended
the back pay period to include 3 additional days, through August 26, 2019. Id.
The agency has responded, asserting that its calculation of the back pay was in
accordance with the terms of the settlement agreement. PFR File, Tab 4 at 4-7.
DISCUSSION OF ARGUMENTS ON REVIEW
When an administrative judge dismisses an appeal pursuant to a settlement
agreement and the appellant believes that the agreement is invalid because it was
obtained by fraud or coercion, or because it was based on mutual mistake, she
may file a petition for review of the initial decision and seek to have the
settlement agreement set aside. Perkins v. Department of Veterans Affairs ,
101 M.S.P.R. 642, ¶ 4 (2006). If, however, the appellant is not challenging the
validity of the settlement agreement, but instead believes that the agency has
failed to comply with a term of the agreement, she may file a petition for
enforcement with the regional or field office that issued the initial decision. Id.
If the appellant substantiates her allegation that the agency has breached the
agreement, she is entitled to either enforcement of the agreement or rescission of
the agreement and reinstatement of her claim. Id.
The appellant in this case has not shown, or even specifically alleged, that
the settlement agreement is invalid as a result of fraud, coercion, or mutual
mistake. PFR File, Tabs 1, 3. Instead, she alleges that the agency violated the
agreement because, according to the appellant, the agency miscalculated its
computation of her back pay and deprived her of 3 days of back pay. PFR File,
Tab 3 at 4-5. Accordingly, we find that she has failed to establish a basis on
which to grant her petition for review.
As indicated above, however, the appellant has alleged that the agency may
have violated the terms of the settlement agreement. PFR File, Tabs 1, 3. Where
a settlement agreement has been entered into the record for enforcement purposes3
and the appellant alleges noncompliance with the agreement in a petition for
review, those allegations of noncompliance will be forwarded to the regional or
field office for processing as a petition for enforcement. Perkins, 101 M.S.P.R.
641, ¶ 6. We therefore find that the appellant’s allegations of noncompliance
must be forwarded to the Atlanta Regional Office for processing as a petition for
enforcement pursuant to 5 C.F.R. § 1201.182(a).
ORDER
This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(b) (5 C.F.R.
§ 1201.113(b)).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
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
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.8 | Velazquez_Jessica_AT-0752-19-0421-I-1_Final_Order.pdf | 2024-01-05 | JESSICA VELAZQUEZ v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-19-0421-I-1, January 5, 2024 | AT-0752-19-0421-I-1 | NP |
2,556 | https://www.mspb.gov/decisions/nonprecedential/Gibson_Stefani_DC-0752-15-0335-I-5_Lack of Quorum Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEFANI GIBSON,
Appellant,
v.
SECURITIES AND EXCHANGE
COMMISSION,
Agency.DOCKET NUMBER
DC-0752-15-0335-I-5
DATE: January 5, 2024
Peter Broida , Arlington, Virginia, for the appellant.
Daniel L. Garry and David L. Pena , 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Gibson_Stefani_DC-0752-15-0335-I-5_Lack of Quorum Order.pdf | 2024-01-05 | STEFANI GIBSON v. SECURITIES AND EXCHANGE COMMISSION, MSPB Docket No. DC-0752-15-0335-I-5, January 5, 2024 | DC-0752-15-0335-I-5 | NP |
2,557 | https://www.mspb.gov/decisions/nonprecedential/Kelly_Kristopher_D_AT-0752-15-0064-C-1_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KRISTOPHER D. KELLY,
Appellant,
v.
TENNESSEE VALLEY AUTHORITY,
Agency.DOCKET NUMBER
AT-0752-15-0064-C-1
DATE: January 5, 2024
THIS ORDER IS NONPRECEDENTIAL1
J
ennifer B. Morton , Esquire, and Pat Kelly , Knoxville, Tennessee, for the
appellant.
Jennifer L. Grace , Knoxville, Tennessee, for the agency.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Additionally, the agency filed a motion for leave to file additional pleadings.
Compliance Petition for Review File, Tab 20. In this motion, the agency is seeking
leave to supplement its legal argument with an Equal Employment Opportunity
Commission (EEOC) decision, Alyce R. v. U.S. Postal Service , EEOC Appeal No.
0120160107, 2017 WL 3214465 (July 18, 2017), which was issued after the record
closed in this case. The agency, however, has failed to explain how Alyce R. is material
and would warrant an outcome different from that of the initial decision, given that the
administrative judge, in the initial decision, applied the same long-standing legal
doctrines that the EEOC relies on. Accordingly, the agency’s motion for leave is
denied.
2
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
ORDER
The agency has filed a petition for review of the initial decision, which
granted the appellant’s petition for enforcement and found the agency in
noncompliance. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings 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).
BACKGROUND
In the underlying appeal, the administrative judge reversed the agency’s
decision to remove the appellant from his position as a Senior Nuclear Security
Officer (NSO) for failure to meet the medical requirements of his position,
2 We also deny the agency’s request to set aside the Final Order in the underlying
appeal. See 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).
3
finding that the appellant established his affirmative defense of disability
discrimination. Kelly v. Tennessee Valley Authority , MSPB Docket No.
AT-0752-15-0064-I-1, Initial Decision (Sept. 9, 2015). Specifically, the
administrative judge found that the agency failed to engage in a good faith effort
to accommodate the appellant, and thus, the appellant proved that the agency
failed to meet its obligation to reasonably accommodate his disability by
reassigning him to another position for which he was qualified and could have
been assigned. Id. at 7-10. Accordingly, the administrative judge reversed the
removal action. Id. at 11.
The agency filed a petition for review, and the Board issued a Final Order
denying the agency’s petition. Kelly v. Tennessee Valley Authority , MSPB
Docket No. AT-0752-15-0064-I-1, Final Order (June 16, 2016). The Board
agreed with the administrative judge that the agency failed to make a good faith
effort during the interactive process. Id., ¶ 11. The agency was ordered to
“cancel the removal and to restore and reassign the appellant the Custodian
(Trainee) position, or to another position at or below the appellant’s formal grade
level for which he is qualified, effective September 11, 2014.” Id., ¶ 13.
The agency subsequently advised the appellant in a letter dated August 15,
2016, that it considered itself as having complied with the requirements of the
Board’s order because it had “reclassified” the appellant within its human
resources system as a Custodian (Trainee) retroactive to September 11, 2014, and
that he had been receiving full pay and benefits “for that job classification” since
September 9, 2015, the date the initial decision was issued. Compliance File
(CF), Tab 10 at 20. The letter further advised the appellant that he owed the
agency $2,131.59 “after all credits, deductions, and offsets,” and it instructed the
appellant to forward a check in the full amount to the agency. Id.
The appellant filed a petition for enforcement, arguing that, from the date
of the issuance of the initial decision in September 2015 through August 2016,
the agency made no effort to contact him to discuss his abilities, job
4
opportunities, or possible accommodations that he might need to perform the
Custodian (Trainee) job or any other job within the agency. CF, Tab 9. The
appellant also identified the following outstanding compliance issues: (1) he
claimed that the agency failed to reimburse him for medical expenses incurred
due to the loss of health insurance between September 2014, the month in which
the agency removed him, and September 2015, the month the initial decision
ordered the agency to reinstate him and to provide interim relief if the agency
filed a petition for review of the initial decision; (2) he sought verification of the
agency’s back pay calculations from documents the agency relied on for its
calculations, including supporting documents for the agency’s calculation of his
base salary, performance bonuses, raises, night differential, and interest
calculation; (3) he sought verification of the agency’s calculation of his annual
and sick leave balances from documents on which the agency relied to calculate
these balances; (4) he sought verification that he was actually paid $7,652.25 as
“Lump Sum Leave Paid”; (5) to the extent that he was unable to work as a
Custodian (Trainee) due to the progression of his disease, he sought an order
requiring the agency to reassign him to another position for which he was
qualified; (6) he sought an order prohibiting the agency from engaging in
retaliatory conduct toward him; and (7) he sought an order referring the
proceeding to mediation with a Board attorney. CF, Tab 9.
The agency responded that the appellant failed to “allege with any
specificity TVA’s noncompliance with the Final Order.” CF, Tab 10 at 5. The
agency asserted that it has complied “because it has placed Appellant in the
Custodian Trainee position effective September 11, 2014, and it has given him his
back pay, interest, and benefits.” Id. at 8.
After considering the appellant’s petition for enforcement, the agency’s
response thereto, and the appellant’s reply to the agency’s response, the
administrative judge found that the agency failed to establish that it is in
compliance with the Board’s Final Order. CF, Tab 14, Compliance Initial
5
Decision (CID) at 8. The administrative judge found that, while the initial
decision and the Board’s Final Order both found that there was at least one vacant
position for which the appellant was qualified at the time, neither the initial
decision nor the Final Order determined that the Custodian (Trainee) job was the
position to which the appellant was entitled to be reassigned in accordance with
the agency’s obligations under the Rehabilitation Act. CID at 8. The
administrative judge found that the agency offered no evidence to establish that
the Custodian (Trainee) position to which it reassigned the appellant was the
vacant position for which the appellant was qualified and that came closest to the
appellant’s NSO position “in terms of pay, status, etc.” CID at 8-9. Further,
because the agency calculated the appellant’s back pay on the Custodian
(Trainee) position without sufficient evidence to determine whether that was the
position to which the agency should have reinstated the appellant, the
administrative judge found that the agency had submitted insufficient evidence to
allow the Board to determine whether the agency’s back pay calculations were
correct. CID at 9. To the extent the appellant challenged the agency’s off-setting
of the lump-sum payment he received for his unused annual leave, the
administrative judge found that the agency is required to offset a lump-sum
payment for annual leave under the Back Pay Act and that the appellant failed to
provide a reasonable basis to support a conclusion that the offset amount was not
properly calculated. CID at 9. Regarding the appellant’s claim that he should be
reimbursed for his medical expenses, the administrative judge found that, while
the appellant may be entitled to reimbursement for medical expenses incurred
during the period of his removal, the Board has no authority to direct an agency
to pay an employee additional or consequential expenses in connection with a
back pay award. CID at 10. Additionally, because the agency is required to
submit documentation sufficient to establish that it properly calculated the back
pay amount due to the appellant, the administrative judge denied the appellant’s
request to engage in discovery concerning the overpayment. Finally, the
6
administrative judge denied the appellant’s motion for a Board order requiring the
agency to cease collection of the lump-sum payment the appellant received for his
unused annual leave.
The agency filed a petition for review of the compliance initial decision.
Compliance Petition for Review (CPFR) File, Tab 5. The appellant filed a
response, and the agency filed a reply to the response. CPFR File, Tabs 12, 18.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency remains in noncompliance regarding the restoration of the appellant
to a position at or below his former grade level for which he is qualified.
When the Board finds a personnel action unwarranted, as in this case, the
goal is to place the appellant, as nearly as possible, in the status quo ante, i.e., the
situation he would have been in had the wrongful personnel action not occurred.
See Tubesing v. Department of Health and Human Services , 112 M.S.P.R. 393,
¶ 5 (2009). When an appellant who has prevailed before the Board files a petition
for enforcement, it is the agency’s burden to prove its compliance with the
Board’s final order. Id. An agency’s assertions of compliance must include a
clear explanation of its compliance actions supported by documentary evidence.
Vaughan v. Department of Agriculture , 116 M.S.P.R. 319, ¶ 5 (2011).
Here, the agency argues on review that the administrative judge
erroneously interpreted and misapplied the plain language in the Board’s order
concerning the restoration of the appellant. CPFR File, Tab 5. Specifically, the
agency contends that the administrative judge erred when she found the agency
“to be noncompliant” and “ordered the parties to go back to the very beginning
and engage in an interactive discussion, rather than enforcing the Final Order as
written based on its plain meaning.” Id. at 5-6. The agency also continues to
challenge the initial decision and the Board’s decision on the removal action. Id.
at 24-30. Indeed, the agency asserts that the Board has a “lack of understanding”
of the applicable law and that the Final Order “did little more than rubber stamp
7
the [administrative judge’s] initial decision and further misconstrue the law.” Id.
at 27.
However, the agency continues to fail to understand that an employee only
has a general responsibility to inform his employer that he needs accommodation
for a medical condition. Paris v. Department of the Treasury , 104 M.S.P.R. 331,
¶ 17 (2006). Once the employee has requested accommodation, the employer
must engage in the interactive process in an effort to determine an appropriate
accommodation, and the employer cannot escape liability for disability
discrimination simply because the employee failed to suggest a particular
accommodation. Id. As stated in the initial decision, the Board has repeatedly
held that an employing agency is in a better position than a disabled employee to
know about its ability to modify duties or working conditions to meet the needs of
the employee. Id.
Here, the Final Order explicitly ordered the agency to “cancel the removal
and to restore and reassign the appellant to the Custodian (Trainee) position, or
to another position at or below the appellant’s formal grade level for which
he is qualified, effective September 11, 2014 .” Kelly, MSPB Docket No.
AT-0752-15-0064-I-1, Final Order, ¶ 13 (emphasis added). The wording of this
order intentionally did not require the agency to reassign the appellant to the
Custodian (Trainee) position. Rather, the agency was specifically ordered to
reassign the appellant to a position for which he is qualified, and the Custodian
(Trainee) position was one possible position if the appellant was qualified to
perform the duties. Id. On review, the agency does not deny that it failed to
engage in the interactive process in locating a position within the appellant’s
qualifications. CPFR File, Tab 5. Rather, the agency continues to challenge the
Board’s determination that the agency engaged in disability discrimination when
it removed the appellant. Id. For example, the agency continues to assert that it
was not obligated to engage in the interactive process prior to the hearing because
it was the appellant’s burden to prove that a position was available for which he
8
was qualified, and the only position the appellant identified was the Custodian
(Trainee) job. Id. at 27-28. However, we find no merit to the agency’s argument
that it has no obligation or responsibility to participate in the interactive process
with the appellant to comply with the Board’s Final Order.
It is undisputed that the agency has made no effort at any time prior to the
appellant’s removal in 2014 through this compliance appeal filed in January 2017
to engage, in good faith, in the interactive process with the appellant to determine
whether the agency has any position, duties, or working conditions which could
be modified to meet the appellant’s restrictions. Instead, the agency appears to be
arguing that it believes it has complied because it finally “reassigned” the
appellant to the Custodian (Trainee) position, but because the appellant’s medical
conditions have now advanced, thereby preventing him from performing the
duties of the Custodian (Trainee) position, the Board should vacate the Final
Order. CPFR File, Tab 5 at 32-34.
However, both the administrative judge and the Board previously have
found that the agency discriminated against the appellant on the basis of his
disability when it removed him from his NSO position without making a good
faith effort to engage in the interactive process. Although the agency continues
to challenge these findings and it reasserts the arguments it previously raised
before the Board, we decline to disturb the Final Order. CPFR File, Tab 5
at 24-27. Furthermore, the agency’s delayed reassignment of the appellant to the
Custodian (Trainee) position and its subsequent determination that he cannot
perform the position’s duties do not constitute engaging in good faith in the
interactive process to reassign him to a position that “comes closest to the
employee’s current position in terms of pay, status, etc.,” for which he is
qualified to perform the duties. See EEOC, Enforcement Guidance; Reasonable
Accommodation and Undue Hardship Under the American with Disabilities Act,
www.eeoc.gov/policy/docs/accommodation.html (2002); see also Tubesing,
9
112 M.S.P.R. 393, ¶ 5. Accordingly, the administrative judge correctly found the
agency in noncompliance with the Final Order.
The agency also raises numerous arguments alleging that the appellant has
submitted a disability retirement application, or applications with the Office of
Personnel Management (OPM), which have been granted. However, any such
applications were submitted after the agency failed to engage in the interactive
process and assist the appellant in locating a position for which he was qualified.
Moreover, 5 U.S.C. § 7701(j) provides that “[i]n determining the appealability
under [section 7701] of any case involving a removal from the service . . . ,
neither an individual’s status under any retirement system established by or under
Federal statute nor any election made by such individual under any such system
may be taken into account.” Id.; Fox v. Department of the Army , 120 M.S.P.R.
529, ¶ 21 (2014). The essential occurrence in such cases is the timing of the
agency’s action, rather than the timing of the grant of retirement by OPM. As
long as an agency effects an action prior to the grant of retirement by OPM, the
Board has jurisdiction over the action, regardless of the effective date of the
retirement. Fox, 120 M.S.P.R. 529. ¶ 21. Here, it is undisputed that the appellant
applied for disability retirement benefits after the agency removed him from his
position. CPFR File, Tab 5 at 17. Accordingly, the agency’s arguments
concerning the status of the appellant’s retirement in this compliance appeal are
unavailing.
In addition, the agency asserts that, “[b]ecause the Board designated its
Final Order as nonprecedential under 5 C.F.R. § 1201.117(c), that effectively
stripped TVA of the opportunity to appeal to the Federal Circuit.” CPFR File,
Tab 5 at 30. However, the agency’s argument shows that it lacks an
understanding of the Board’s statutory judicial appeal process. As set forth in
5 U.S.C. § 7703(d)(1), the agency does not have a direct right of appeal of a
Board decision, whether the decision is designated as nonprecedential or not.
Rather, the right to appeal a Board final decision is restricted to the Director of
10
OPM. Specifically, the OPM Director may request review of any final order or
decision of the Board within 60 days after its issuance. To request review, the
Director may timely file “a petition for judicial review in the United States Court
of Appeals for the Federal Circuit if the Director determines, in the discretion of
the Director, that the Board erred in interpreting a civil service law, rule, or
regulation affecting personnel management and that the Board’s decision will
have a substantial impact on a civil service law, rule, regulation, or policy
directive.” 5 U.S.C. § 7703(d)(1). If the Director “did not intervene in a matter
before the Board, the Director may not petition for review of a Board decision
under this section unless the Director first petitions the Board for a
reconsideration of its decision, and such petition is denied.” Id. Here, because
the OPM Director did not intervene, nor did the Director timely file a petition for
reconsideration of the Board’s decision and have it denied, the agency had no
right to appeal the Board’s Final Order to the Federal Circuit.
Because we are affirming the compliance initial decision that found the
agency in noncompliance, the agency is directed to file evidence of compliance
with the Office of the Clerk of the Board, and the appellant will be afforded the
opportunity to respond to that evidence. The appellant’s petition for enforcement
will be referred to the Board’s Office of General Counsel and, depending on the
nature of the submissions, an attorney with the Office of General Counsel may
contact the parties to further discuss the compliance process. The parties are
required to cooperate with that individual in good faith. Because the purpose of
the proceeding is to obtain compliance, when appropriate, an Office of General
Counsel attorney or paralegal may engage in ex parte communications to, among
other things, better understand the evidence of compliance and any objections to
that evidence. Thereafter, the Board will issue a final decision fully addressing
11
the petition for review of the compliance initial decision and setting forth the
appellant’s further appeal rights and the right to attorney fees, if applicable.3
ORDER
We ORDER the agency to submit to the Office of 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 submission must demonstrate, as set forth above,
that the appellant has been reassigned to a position for which he is qualified, a
position which is at or below his former grade level as an NSO, effective
September 11, 2014. To be in compliance regarding the provisions of back pay,
interest on back pay, and benefits of employment, the agency must provide a
detailed and clear explanation of the calculations it has made in determining the
amount due the appellant, supported by relevant documentary evidence, in the
form of copies of correspondence, statements, and declarations made under
penalty of perjury. Among other things, the agency must (1) clearly set forth the
gross amount due to the appellant and show how that amount was determined;
(2) clearly set forth the amount and reason for all deductions, reductions, and
offsets from the gross amount due of the appellant; (3) clearly set forth the source
and amount of all checks or electronic payments already received by the appellant
and provide evidence that such checks or electronic payments were received; and
(4) clearly set forth the amount of interest due the appellant and how that amount
was calculated. The agency must also clearly set forth its calculations relating to
the appellant’s sick and annual leave balances, his Thrift Savings Plan account,
including both the appellant’s and the agency’s contributions, and any other
benefit of employment the appellant would have received but for the agency’s
unwarranted personnel action. Finally, the agency must provide evidence that it
3 The subsequent decision may incorporate the analysis and findings set forth in this
Order.
12
has restored the appellant’s health insurance benefits. In addition to the
calculations, the agency must provide a clear and detailed narrative explanation
of its calculations so that the Board may understand the calculations and verify
that they are correct. The agency must provide an explanation of all codes and
abbreviations used in its documentation. The agency must serve all parties with
copies of its submission.
We also ORDER the agency to submit to the Office of the Clerk of the
Board within 60 days of the date of this Order the name, title, grade, and address
of the agency official charged with complying with the Board’s order, and inform
such official in writing of the potential sanction for noncompliance as set forth in
5 U.S.C. § 1204(a)(2) and (e)(2)(A). 5 C.F.R. § 1201.183(a)(2). In the absence
of this information, the Board will presume that the highest-ranking appropriate
agency official who is not appointed by the President by and with the consent of
the Senate is charged with compliance. Id.
The agency’s submission should be filed under the new docket number
assigned to this compliance referral matter, MSPB Docket No. AT-0752-15-0064-
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
13
compliance, the Board may assume that he is satisfied with the agency’s actions
and dismiss the petition for enforcement.
The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183(c). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204(e)(2)(A).
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Kelly_Kristopher_D_AT-0752-15-0064-C-1_Order.pdf | 2024-01-05 | KRISTOPHER D. KELLY v. TENNESSEE VALLEY AUTHORITY, MSPB Docket No. AT-0752-15-0064-C-1, January 5, 2024 | AT-0752-15-0064-C-1 | NP |
2,558 | https://www.mspb.gov/decisions/nonprecedential/Jackson_Dennis_A_AT-0831-17-0496-A-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DENNIS A. JACKSON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0831-17-0496-A-1
DATE: January 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
C
hristopher J. Keeven , Esquire, and James P. Garay Heelan , Esquire,
Washington, D.C., for the appellant.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review and the appellant has filed a
cross petition for review of the addendum initial decision that granted, in part, the
appellant’s motion for an award of attorney fees in the amount of $51,830.90.
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).
2
the initial decision contains erroneous findings 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 the granting of the petition or
cross petition for review. Therefore, we DENY the petition for review and the
cross petition for review and AFFIRM the addendum initial decision, which is
now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
In 2014, the appellant filed a request with the Office of Personnel
Management (OPM) to make a Civil Service Retirement System (CSRS) service
credit deposit of refunded retirement contributions from his employment at the
Federal Home Loan Bank Board (FHLBB), for the period of September 8, 1975,
through July 6, 1985. Jackson v. Office of Personnel Management , MSPB Docket
No. AT-0831-17-0496-I-1, Initial Appeal File (IAF), Tab 6 at 66. On May 4,
2017, OPM issued a final decision denying the request, finding that the
appellant’s service with the FHLBB was covered under the Financial Institutions
Retirement Fund (FIRF), another retirement system for Government employees,
thus making him ineligible to receive benefits under the CSRS based on his
service during the period in question. 5 U.S.C. § 8331(1)(L)(ii); IAF Tab 6
at 5-8.
3
On May 19, 2017, the appellant filed an appeal of OPM’s final decision
with the Board. IAF, Tab 1. On February 26, 2018, the administrative judge
issued an initial decision, reversing OPM’s final decision and ordering OPM to
grant the appellant’s request to make a CSRS service credit deposit of the
refunded retirement contributions from the time that he was employed at the
FHLBB. IAF, Tab 25, Initial Decision (ID). Specifically, the administrative
judge found that FIRF did not become a retirement system for Government
employees until 1989. ID at 3-4, 15-16. The service credit that the appellant
sought was for his service with the FHLBB from September 8, 1975, through
July 6, 1985, a time when he was covered by the CSRS. ID at 14. This initial
decision became the Board’s final decision on April 2, 2018, as neither party
sought further review. ID at 17; see 5 C.F.R. § 1201.113.
On June 1, 2018, the appellant filed a motion for an award of attorney fees.
Jackson v. Office of Personnel Management , MSPB Docket No. AT-0831-17-
0496-A-1, Attorney Fee File (AFF), Tab 1.2 After the parties submitted argument
and evidence, the administrative judge issued an addendum initial decision on
August 21, 2018, granting, in part, the appellant’s motion and ordering the agency
to pay $51.830.90 in attorney fees. AFF, Tabs 3-4, Tab 5, Addendum Initial
Decision (AID).3 The agency then filed a petition for review of the addendum
initial decision, to which the appellant filed an opposition and a cross petition for
review. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSIONS OF ARGUMENTS ON REVIEW
In order to establish entitlement to an award of attorney fees, 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
2 The appellant’s initial motion sought $48,887.50 in attorney fees. AFF, Tab 1 at 4.
He then made a supplemental request for an additional $5,690.00 for a total of
$54,577.50. AFF, Tab 4 at 4.
3 Of this amount, $51,153.95 is for fees and $676.95 is for out-of-pocket expenses. AID
at 9-11.
4
warranted in the interest of justice; and (4) the amount of claimed fees is
reasonable. 5 U.S.C. § 7701(g)(1); Wightman v. Department of Veterans Affairs ,
111 M.S.P.R. 109, ¶ 7 (2009). Here, the administrative judge appropriately found
that the appellant established each of these requirements and awarded him
attorney fees in the amount of $51,830.90. AID at 1-12.
On review, the agency only challenges the administrative judge’s finding
that the award of fees is warranted in the interest of justice. PFR File, Tab 1 at 4,
13-19. In finding that an award of attorney fees is warranted in the interest of
justice, the Board generally looks to the Allen categories, which consider
whether: (1) the agency engaged in a prohibited personnel practice; (2) the
agency action was clearly without merit or wholly unfounded, or the employee
was substantially innocent of the charges; (3) the agency initiated the action in
bad faith; (4) the agency committed a gross procedural error; or (5) the agency
knew or should have known that it would not prevail on the merits. Allen v. U.S.
Postal Service, 2 M.S.P.R. 420, 434-35 (1980). In Board appeals regarding an
award of attorney fees where the initial appeal challenged a decision by OPM, the
Board has recognized Allen categories two and five as the most relevant. See
Mansfield v. Office of Personnel Management , 73 M.S.P.R. 602, 605 (1997). As
evidenced in the record and determined by the administrative judge in the
addendum initial decision, OPM knew or should have known that it would not
prevail on the merits in an appeal of its final decision denying the appellant’s
request to make a CSRS service credit deposit of refunded retirement
contributions from his employment at the FHLBB, for the period of September 8,
1975, through July 6, 1985. AID at 4-7.
The Board is to evaluate the record before OPM at the time its final
decision is made when determining whether OPM knew or should have known
that it could not have prevailed on the merits of an appeal of its final decision.
Fleming v. Office of Personnel Management , 62 M.S.P.R. 37, 40 (1994); Kent v.
Office of Personnel Management , 33 M.S.P.R. 361, 367 (1987). The Board has
5
held that OPM knew or should have known that it could not prevail on the merits
when it lacked a reasonable and supportable explanation for its position, or when
it ignored clear, unrebutted evidence that the appellant satisfied the criteria for a
retirement benefit. Fleming, 62 M.S.P.R. 40.
In this case, it is clear that OPM knew or should have known that it could
not have prevailed on a decision premised on FIRF being classified as a
retirement system for Government employees prior to October 8, 1989. OPM
acknowledged in the final decision on the appellant’s request that FIRF did not
become a retirement system for Government employees until October 8, 1989.
IAF, Tab 6 at 7. The Memorandum of Understanding that OPM entered into in
1991, and which OPM referred to in its final decision, further outlines this, along
with stating that applicable employees are eligible for coverage under CSRS for
Federal service with the FHLBB that predates October 8, 1989. IAF, Tab 6 at 6
n.1, 51, 55, 61. Further, prior to the appellant filing his request with OPM in
2014, OPM treated other employees’ service with the FHLBB as credible service
under the CSRS. See IAF, Tab 24 at 34-36. The administrative judge’s reversal
of OPM’s final decision was essentially an elaboration of the evidence which the
appellant previously presented to OPM with his application to make the CSRS
service credit deposit at issue. See IAF, Tab 6 at 9-155; ID at 2-15. OPM’s final
decision lacked a reasonable and supportable explanation and ignored clear,
unrebutted evidence that OPM had at its disposal supporting the finding that the
appellant qualified for CSRS benefits based on his employment at the FHLBB.
Therefore, the administrative judge appropriately held that an attorney fee award
in this case is in the interest of justice. See Sallis v. Office of Personnel
Management, 34 M.S.P.R. 36, 39 (1987) (holding that an award of attorney fees
was warranted in the interest of justice because OPM knew or should have known
that its reconsideration decision would not be upheld).
OPM claims for the first time on review that because the issue examined in
the appellant’s Board appeal contesting its final decision appeared to be one of
6
first impression, it was unreasonable for the administrative judge to determine
that OPM knew or should have known that it would not prevail on the merits of
any appeal of its final decision. PFR File, Tab 1 at 14. 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 showing of these circumstances.
Notwithstanding, the Board has rejected the argument that attorney fees are not
warranted in the interest of justice when the issue is a matter of first impression.
See Sowa v. Department of Veterans Affairs , 96 M.S.P.R. 408, ¶¶ 8, 14 (2004).
In his cross petition for review, the appellant does not contest the overall
conclusion of the addendum initial decision, including the amount of attorney
fees awarded. PFR File, Tab 3 at 4-24. The appellant does contend though that
the administrative judge should have also considered other Allen categories in his
analysis when finding that the award of fees was warranted in the interest of
justice. Id. at 4, 19-23. Particularly, the appellant argues that OPM’s final
decision was “clearly without merit and wholly unfounded,” and that OPM
committed a “gross procedural error” in issuing its final decision. Id. The Board
has held that if attorney fees are warranted in the interest of justice under one
Allen category, the Board need not address whether fees are warranted in the
interest of justice pursuant to one of the other Allen categories. Payne v. U.S.
Postal Service, 79 M.S.P.R. 71, 72 n.* (1998). As set forth above, we agree that
attorney fees are warranted in the interest of justice under Allen category five.
In closing, we discern no reason to disturb the initial decision, as it is
supported by the evidence, the inferences are appropriate, and the conclusions are
reasoned and supported.
7
ORDER
We ORDER the agency to pay the attorney of record $51,830.90 in fees
and costs. The agency must complete this action no later than 20 days after the
date of this decision. Title 5 of the United States Code, section 1204(a)(2)
(5 U.S.C. § 1204(a)(2)).
We also ORDER the agency to tell the appellant and the attorney promptly
in writing when it believes it has fully carried out the Board’s Order and of the
actions it has taken to carry out the Board’s Order. We ORDER the appellant and
the attorney to provide all necessary information that the agency requests to help
it carry out the Board’s Order. The appellant and the attorney, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant or the attorney
that it has fully carried out the Board’s Order, the appellant or the attorney may
file a petition for enforcement with the office that issued the initial decision on
this appeal, if the appellant or the attorney believes that the agency did not fully
carry out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorney believes the agency has not fully carried out the Board’s
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
10
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
11
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Jackson_Dennis_A_AT-0831-17-0496-A-1_Final_Order.pdf | 2024-01-05 | DENNIS A. JACKSON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831-17-0496-A-1, January 5, 2024 | AT-0831-17-0496-A-1 | NP |
2,559 | https://www.mspb.gov/decisions/nonprecedential/Shaw_Deborah_PH-1221-21-0091-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBORAH SHAW,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-1221-21-0091-W-1
DATE: January 5, 2024
Michael Kator , Washington, D.C., for the appellant.
Michelle M. Murray , Baltimore, Maryland, for the agency.
BEFORE
Raymond A. Limon, Member
ORDER
¶1The agency has filed a petition for review of the initial decision, which
granted the appellant’s request for corrective action as to all four personnel
actions at issue in her individual right of action appeal. 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).
¶2Based on the initial decision, which now becomes the final decision of the
Board, the parties’ obligations are set out below:
2
¶3The agency must 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. The
appellant must 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, the
agency must pay the appellant the undisputed amount no later than 60 calendar
days after the date of this decision.
¶4The agency must tell the appellant promptly in writing when it believes it
has fully carried out the Board’s Order and of the actions it has taken to carry out
the Board’s Order. The appellant, if not notified, should ask the agency about its
progress. See 5 C.F.R. § 1201.181(b).
¶5No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶6For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency must 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.
3
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
4
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that
while any Special Counsel investigation related to this decision is pending, “no
disciplinary action shall be taken against any employee for any alleged prohibited
activity under investigation or for any related activity without the approval of the
Special Counsel.” 5 U.S.C. § 1214(f).
NOTICE OF APPEAL 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 Since the issuance of the initial decision in this matter, the Board may have updated
the notice 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 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:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to 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
6
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 of
any requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(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:
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.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
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.
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | Shaw_Deborah_PH-1221-21-0091-W-1_Final_Order.pdf | 2024-01-05 | DEBORAH SHAW v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-1221-21-0091-W-1, January 5, 2024 | PH-1221-21-0091-W-1 | NP |
2,560 | https://www.mspb.gov/decisions/nonprecedential/Brady_Diane_DE-0714-20-0161-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DIANE BRADY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-0714-20-0161-I-1
DATE: January 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bernard Humbles , Aurora, Colorado, for the appellant.
Thomas F. Muther , Denver, Colorado, for the appellant.
Mackenzie Novak , Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal under 38 U.S.C. § 714. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
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).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
The appellant has moved to dismiss the agency’s petition for review for
failure to comply with the interim relief order. The Board’s regulations provide
that if an agency files a petition or cross petition for review and has not provided
the interim relief ordered, the appellant may request dismissal of the agency’s
petition. 5 C.F.R. § 1201.116(d). In this case, the agency has refused to comply
with the interim relief or provide the certification of compliance required under
5 C.F.R. § 1201.116(a), on the grounds that 38 U.S.C. § 714(d)(7) precludes it
from providing interim relief.
Since the issuance of the initial decision, the Board has determined that
38 U.S.C. § 714(d)(7) precludes an award of interim relief in an appeal of a
removal taken under 38 U.S.C. § 714. Schmitt v. Department of Veterans Affairs ,
2022 MSPB 40, ¶ 16. Accordingly, we find the administrative judge’s interim
relief order was invalid, and the agency’s failure to comply with it does not
impede our review of the agency’s petition for review. Id.; see Zygas v. U.S.
Postal Service, 116 M.S.P.R. 397, ¶ 13 (2011) (stating that there are
circumstances in which the awarding of interim relief is inappropriate, such as
when doing so is outside the scope of the Board’s authority); Schultz v. U.S.
3
Postal Service, 70 M.S.P.R. 633, 639 n. 2 (1996) (finding that the Board will not
dismiss an agency’s petition for review for failure to comply with an interim
relief order that should not have been issued). We therefore DENY the
appellant’s motion to dismiss the agency’s petition.
ORDER
We ORDER the agency to cancel the removal and to retroactively restore
the appellant effective February 7, 2020. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the 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
4
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE 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.
5
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
6
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
7
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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,
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.
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | Brady_Diane_DE-0714-20-0161-I-1__Final_Order.pdf | 2024-01-04 | DIANE BRADY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-0714-20-0161-I-1, January 4, 2024 | DE-0714-20-0161-I-1 | NP |
2,561 | https://www.mspb.gov/decisions/nonprecedential/Burnett_Kevin_P_DC-3330-19-0455-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN PATRICK BURNETT,
Appellant,
v.
FEDERAL DEPOSIT INSURANCE
CORPORATION,
Agency.DOCKET NUMBER
DC-3330-19-0455-I-1
DATE: January 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin Patrick Burnett , Stockton, California, pro se.
Scott David Cooper , Fairfax, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied him corrective action under the Veterans Employment Opportunities Act
(VEOA) of 1998. Generally, we grant petitions such as this one only 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
During the relevant time period, the appellant, who is a preference-eligible
veteran, was employed as an NB-6 Community Reinvestment Act & Fair Lending
Compliance Policy Specialist for the Office of the Comptroller of the Currency.
Initial Appeal File (IAF), Tab 1 at 7. The agency issued an open competitive
vacancy announcement (2019-HQD-B0032) and a merit promotion vacancy
announcement (2019-HQ-B0030) for the position of CG-14/15 Senior Policy
Analyst. IAF, Tab 19 at 23-35, 47-57. The vacancy announcements stated, in
pertinent part, that applicants for the CG-14 position must have 1 year of
specialized experience equivalent to the Grade 13 level in the Federal service and
applicants for the CG-15 position must have 1 year of specialized experience
equivalent to the Grade 14 level in the Federal service. Id. at 27, 51. For the
Grade 14 level, applicants were required to have specialized experience in
“assisting in developing or analyzing policy related to financial services or
products, banking or financial institutions, and analyzing and evaluating existing
or proposed consumer protection laws and regulations related to the banking
industry.” Id. For the Grade 15 level, applicants were required to have
3
specialized experience “implementing, developing or analyzing policy related to
financial services or products, banking or financial institutions, and analyzing and
evaluating existing or proposed consumer protection laws and regulations related
to the banking industry.” Id.
The appellant submitted an application for both vacancy announcements.
IAF, Tab 1 at 5, 8, Tab 3 at 8-10. After reviewing the appellant’s applications,
the agency deemed him not qualified for the CG-14 and CG-15 positions because
he lacked the 1 year of specialized experience equivalent to the Grade 13 or 14
levels in the Federal service. IAF, Tab 19 at 20-22, 60-62. On March 13, 2019,
the appellant was notified of his nonselection for both vacancies. IAF, Tab 1
at 3, Tab 10 at 7.
The appellant filed a timely complaint with the Department of Labor
(DOL). IAF, Tab 3 at 12, Tab 7 at 35-42. By letter dated April 4, 2019, DOL
notified him that it was closing his case because its investigation had determined
that he did not meet the eligibility requirements of the applicable provisions of
veterans’ preference statutes and regulations under Title 5. IAF, Tab 3 at 13.
Thereafter, the appellant filed an appeal with the Board, identifying only
the open competitive vacancy announcement (2019-HQD-B0032), and asserting
that the agency’s decision not to select him for the Senior Policy Analyst position
violated his veterans’ preference rights. IAF, Tab 1. The administrative judge
issued an order on VEOA jurisdiction, apprising the appellant of his burden of
proving Board jurisdiction over his appeal. IAF, Tab 9. After receiving the
appellant’s response, the administrative judge found that, regarding the open
competitive vacancy announcement (2019-HQD-B0032), he made a nonfrivolous
allegation of Board jurisdiction over this claim. IAF, Tab 18. During a close of
record conference, and over the appellant’s objection, the administrative judge
stated that an in-person hearing was not necessary and he would not hold the
appellant’s requested hearing. IAF, Tab 23 at 1.
4
The administrative judge issued an initial decision in which he denied the
appellant’s request for corrective action regarding the open competitive vacancy
announcement (2019-HQD-B0032). IAF, Tab 27, Initial Decision (ID). The
administrative judge found that, contrary to DOL’s determination, the appellant
was a preference-eligible veteran; he further found that the appellant made a
nonfrivolous allegation of Board jurisdiction over his claim that the agency did
not consider all of his qualifications. ID at 2-4. The administrative judge also
determined that the agency reviewed and considered the appellant’s experience;
thus, the appellant failed to prove by preponderant evidence that the agency failed
to consider his experience in violation of the VEOA. ID at 4-7.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He asserts that the administrative judge did not consider the
evidence that he presented, which allegedly showed that the agency did not
consider his qualifications in the selection process. Id. at 4. He also asserts,
without explanation, that the administrative judge took a “narrow interpretation”
of the relevant case law. Id. He claims that the agency did not comply with the
administrative judge’s order to provide discovery materials, and the
administrative judge did not address his objection to the agency’s failure to do so
below. Id. at 3. The agency has filed a response. PFR File, Tab 3. After the
record closed on review, the appellant filed a motion for leave to file an
additional pleading, which we deny herein.2 PFR File, Tab 6.
2 The appellant seeks leave to submit an additional pleading that “addresses and
provides evidence that the agency impermissibly found [him] unqualified for another
Senior Policy Analyst [p]osition, admitted to that error, and offered [him] a
noncompetitive appointment to a similar position around the time of the vacancy
disqualification which is the subject of this appeal.” PFR File, Tab 6 at 3. He also
asserts that this “additional information was provided by the Agency as late as
March 22, 2021,” after an agency internal review discovered the error. Id. He further
asserts that this evidence is relevant due to the “similarity in evaluative factors between
positions” and “the similarities in the errors that occurred.” Id. He also states that the
“ultimate qualification for the subsequent Senior Policy Analyst position refutes key
elements of the agency[’]s arguments for [his] disqualification for the position under
review in this appeal.” Id. We believe that the appellant is asking to file a pleading
5
On November 19, 2022, more than 2½ years after the record closed on
review, the appellant filed a request to join this matter with Burnett v. Federal
Deposit Insurance Corporation , MSPB Docket No. DC-3330-21-0421-I-2. PFR
File, Tab 8. The appellant asserts that “it is in the best interest of both parties
and the Board to process these cases concurrently.” Id. at 3. He states that he
explained why joinder is appropriate in his response to the agency’s petition for
review in the 0421 matter, but he did not offer any explanation in his joinder
request in this matter. Id. On December 22, 2023, the Board issued a Final Order
in Burnett v. Federal Deposit Insurance Corporation , MSPB Docket No. DC-
3330-21-0421-I-2. Accordingly, we deny the appellant’s motion to join these
matters as moot.
DISCUSSION OF ARGUMENTS ON REVIEW
Our interpretation of the appellant’s claims in this matter
As an initial matter, we wish to clarify our interpretation of the interplay
between the nature of the vacancy announcements and the appellant’s claims in
this matter. Federal agencies generally use two types of selection processes to fill
vacancies: (1) the open competitive examination process, and (2) the merit
promotion process. Joseph v. Federal Trade Commission , 505 F.3d 1380, 1381
(Fed. Cir. 2007). The open competitive examination process is used for
employees seeking to join the competitive service and often is used for reviewing
applicants outside the agency. Id. Under this process, agencies may examine
candidates using traditional competitive ranking or category rating procedures.
Launer v. Department of the Air Force , 119 M.S.P.R. 252, ¶¶ 6-7 (2013)
(explaining the key aspects of the two competitive examination procedures). By
contrast, the merit promotion process is used when the position is to be filled by
that incorporates information relating to the selection process and/or evidence discussed
in Burnett v. Federal Deposit Insurance Corporation , MSPB Docket No. DC-3330-21-
0421-I-2. We deny the appellant’s request because he proffers no evidence that the
agency admitted to an error in the selection process at issue in this matter or otherwise
committed an error in this matter that warrants corrective action.
6
an employee of the agency or by an applicant from outside the agency who has
“status” in the competitive service. Joseph, 505 F. 3d at 1382. In the open
competition process, preference-eligible veterans may be afforded various
advantages at the examination, rating, and selection stages, see, e.g., Joseph,
505 F. 3d at 1381-82; Launer, 119 M.S.P.R. 252, ¶¶ 6-7. However, when an
agency fills a vacancy via the merit promotion process, a preference -eligible
veteran does not receive any advantage beyond the ability to apply for and to be
considered for the position. Miller v. Federal Deposit Insurance Corporation ,
818 F.3d 1357, 1359-60 (Fed. Cir. 2016); Montgomery v. Department of Health
and Human Services , 123 M.S.P.R. 216, ¶ 11 (2016). As noted above, vacancy
announcement 2019-HQD-B0032 was an open competitive announcement, and
vacancy announcement 2019-HQ-B0030 was a merit promotion announcement.
IAF, Tab 19 at 23-35, 47-57.
There are two different types of VEOA appeals. Pursuant to 5 U.S.C.
§ 3330a(a)(1)(A), a preference eligible who alleges that an agency has violated
his rights under any statute or regulation relating to veterans’ preference may file
a complaint with the Secretary of Labor. Pursuant to 5 U.S.C. § 3330a(a)(1)(B),
a veteran described in section 3304(f)(1)3 who alleged that an agency has violated
such section with respect to such veteran may file a complaint with the Secretary
of Labor. Because the appellant is a preference-eligible veteran, he may file an
appeal pursuant to 5 U.S.C. § 3330a(a)(1)(A) and/or (a)(1)(B). Montgomery,
123 M.S.P.R. 216, ¶ 5.
It appears that the appellant made both claims below. See, e.g., IAF, Tab 7
at 20 (relying on 5 U.S.C. § 3311 and 5 C.F.R. § 302.302(d) to support his
argument that the agency failed to credit all of his experience), IAF, Tab 10 at 7
3 Pursuant to 5 U.S.C. § 3304(f)(1), “[p]reference eligibles or veterans who have been
separated from the armed forces under honorable conditions after 3 years or more of
active service may not be denied the opportunity to compete for vacant positions for
which the agency making the announcement will accept applications from individuals
outside its own workforce under merit promotion procedures.”
7
(stating that, “under 2019-HQ-B0030, [t]he failure to consider the full measure of
[his] experience also resulted in a violation of the opportunity to compete
guaranteed by 5 U.S.C. § 3304(f)”). We, therefore, understand the appellant to
have alleged below that (1) the agency violated 5 U.S.C. § 3311 and/or 5 C.F.R.
§ 302.302(d) by not properly considering his prior experience in the open
competitive vacancy announcement (section 3330a(a)(1)(A) claim), and (2) he
was denied the right to compete in the merit promotion vacancy announcement
(section 3330a(a)(1)(B) claim).
The appellant is not entitled to corrective action for his claim arising under
5 U.S.C. § 3330a(a)(1)(A). 4
To be entitled to relief, the appellant must prove by preponderant evidence
that the agency’s actions violated one or more of his statutory or regulatory
veterans’ preference rights in its selection process. Graves v. Department of
Veterans Affairs , 114 M.S.P.R. 209, ¶ 10 (2010). The Board may decide a VEOA
appeal on the merits, without a hearing, when there is no genuine dispute of
material fact and one party must prevail as a matter of law. Haasz v. Department
of Veterans Affairs , 108 M.S.P.R. 349, ¶ 9 (2008); see 5 C.F.R. § 1208.23(b)
(stating that “a hearing may be provided to the appellant”).
The single issue before the Board was whether the agency considered all of
the appellant’s experience in determining whether he was qualified for the
position at issue. IAF, Tab 23 at 1. We agree with the administrative judge that
because there is no genuine dispute of material fact, it was unnecessary to hold a
hearing. We further agree that the appellant did not prove by preponderant
evidence that the agency violated 5 U.S.C. § 3311 or 5 C.F.R. § 302.302(d).
4 Neither party challenges the administrative judge’s finding that the appellant
exhausted his remedy with DOL and made a nonfrivolous allegation of Board
jurisdiction over his claim that the agency failed to consider all of his qualifications
when he applied for the position through the open competitive vacancy announcement
(2019-HQD-B0032). IAF, Tab 18 at 1; ID at 3-4. We discern no reason to disturb the
administrative judge’s jurisdictional findings in this regard.
8
Pursuant to 5 U.S.C. § 3311(2), in examinations for the competitive service
in which experience is an element of qualification, a preference eligible is
entitled to credit “for all experience material to the position for which examined,
including experience gained in religious, civic, welfare, service, and
organizational activities, regardless of whether he received pay therefor.” The
language of 5 C.F.R. § 302.302(d) largely tracks this language.5 Under 5 U.S.C.
§ 3311(2) and 5 C.F.R. § 302.302(d), the Board’s role is limited to determining
whether the hiring agency improperly omitted, overlooked, or excluded a portion
of the appellant’s experiences or work history in assessing his qualifications for
the vacancy, and it will not reevaluate the weight the agency accorded those
experiences in reaching its decision that the appellant was not qualified for a
position of employment. Miller v. Federal Deposit Insurance Corporation ,
121 M.S.P.R. 88, ¶ 12 (2014), aff’d, 818 F.3d 1361. Importantly, VEOA does not
empower the Board to reevaluate the merits of an agency’s ultimate determination
that a preference-eligible veteran is not qualified for a position with the agency.
Id. Rather, it would be inconsistent with the Board’s role under VEOA to engage
in a fact-based review of how an agency weighed and assessed a preference
eligible’s experiences in making its hiring decisions and determinations about a
preference eligible’s qualifications for a position. Id.
The record reflects that various agency officials, including a Subject Matter
Expert (SME) and several Human Resources Specialists, reviewed the appellant’s
application package, including his resume for the open competitive vacancy
announcement (2019-HQD-B0032). ID at 5; see, e.g., IAF, Tab 19 at 7-77. The
SME made numerous handwritten comments in the margins of the appellant’s
resume indicating, among other things, that the appellant did not have any
experience in policy analysis and/or development. IAF, Tab 19 at 10-15. The
Human Resources Specialists considered all of the work experience described in
5 The Board has held that 5 U.S.C. § 3311 and 5 C.F.R. § 302.302(d) are a statute and a
regulation, respectively, relating to veterans’ preference. Miller v. Federal Deposit
Insurance Corporation , 121 M.S.P.R. 88, ¶ 7 (2014), aff’d, 818 F.3d 1361.
9
the appellant’s resume and agreed that he was not qualified because he did not
meet the specialized experience requirement. Id. at 61, 72-73. Thus, contrary to
the appellant’s assertion on review that the agency “clearly did not consider [his]
qualifications for the position,” PFR File, Tab 1 at 4, the record reflects that
multiple agency officials considered his application and qualifications for the
position of Senior Policy Analyst. Cf. Williams v. Department of Defense ,
No. 2022-2246, 2023 WL 3575987 (Fed. Cir. May 22, 2023) (finding that the
agency violated the appellant’s rights under the VEOA when it failed to
independently assess his qualifications based on the materials included in his
application). Given the Board’s limited role in evaluating these claims, Miller,
121 M.S.P.R. 88, ¶ 12, we agree with the administrative judge that the appellant
is not entitled to corrective action, ID at 7-8. We also discern no error with the
administrative judge’s decision not to hold the appellant’s requested hearing
under the circumstances.
Even if we were to consider the appellant’s claim arising under 5 U.S.C.
§ 3330a(a)(1)(B), he would still not be entitled to corrective action.
The administrative judge’s order finding jurisdiction (which the appellant
did not contest below or on review) and the initial decision only discussed the
open competitive vacancy announcement (2019-HQD-B0032). IAF, Tab 18 at 1;
ID at 2. The administrative judge did not mention the merit promotion
announcement (2019-HQ-B0030) or any right-to-compete claim in the initial
decision, nor did the appellant raise these issues on petition for review. Even if
the administrative judge erred, any such adjudicatory error is not prejudicial to
the appellant’s substantive rights and provides no basis for reversal of the initial
decision. Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984).
The 5 U.S.C. § 3304(f) opportunity-to-compete provision does not apply to
preference eligible and/or veteran applicants who are already employed in the
Federal civil service. Kerner v. Department of the Interior , 778 F.3d 1336, 1339
(Fed. Cir. 2015); Oram v. Department of the Navy , 2022 MSPB 30, ¶¶ 12-17.
10
Thus, because the appellant was a current Federal employee, he was not entitled
to recovery on any claim that he was denied an opportunity to compete under
5 U.S.C. § 3304(f) as a matter of law. Oram, 2022 MSPB 30, ¶ 17.
The administrative judge did not abuse his discretion in his discovery rulings.
The chronology of discovery issues in this matter is somewhat lengthy, so
we will identify the pertinent events before we analyze the appellant’s argument
on review. During the pendency of the appeal, the appellant filed a motion to
compel the agency’s responses to his interrogatories and document production
requests regarding, among other things, his application materials for the vacancy
announcements at issue, application materials from other applicants, and the
certificate case files. IAF, Tab 15 at 4, 6-12. The agency responded that the
nature of the appellant’s claims was unclear, he made no attempt to resolve the
discovery matter before filing the motion, and discovery was premature in the
absence of a jurisdictional finding. IAF, Tab 16 at 3. Following the
administrative judge’s order finding jurisdiction, the agency submitted its file,
which was responsive to some of the appellant’s discovery requests. IAF,
Tabs 18-19.
The appellant subsequently filed a motion for sanctions, asserting among
other things, that the agency had not produced all of the emails related to both
vacancy announcements and that the evidence produced by the agency was
fraudulent because the version of his resume the agency produced in response to a
Freedom of Information Act (FOIA) request differed from the version of his
resume that the agency produced during the appeal. IAF, Tab 21 at 5-11. He also
asked the administrative judge to compel further discovery. Id. at 25-26. The
agency objected to the sanctions request on the grounds that the application
materials provided to the appellant in response to his FOIA request were redacted
and the notations on such materials were exempt from disclosure under FOIA.
IAF, Tab 22 at 4-6, 9-10. Regarding the motion to compel, the agency noted
among other things that it had provided the appellant with all relevant documents
11
insofar as they related to the issue of whether the agency credited him with all
experience material to the Senior Policy Analyst position. Id. at 6-8.
Thereafter, the administrative judge granted in part and denied in part the
appellant’s motion to compel. IAF, Tab 23 at 2. Specifically, the administrative
judge ordered the agency to provide responses to certain interrogatories and
produce certain documents related to the review of the appellant’s application and
the hiring process for both vacancy announcements, but noted that the remaining
interrogatories and document production requests were either overbroad or
irrelevant to the issues in this appeal. Id. The administrative judge also denied
the motion for sanctions. Id. at 1. In response, the agency stated that it had
already provided the appellant with all relevant documents with the exception of
materials submitted by the other applicants for both vacancy announcements
because they contained personally identifiable information, are therefore barred
from release under the Privacy Act, and are not relevant to the issue of whether
the agency considered all of the appellant’s experience. IAF, Tab 24 at 4. The
appellant objected to the agency’s response and made a second request for
sanctions. IAF, Tab 25 at 4-6.
We believe that the appellant is alleging on review that the administrative
judge’s discovery rulings constituted an abuse of discretion. An administrative
judge has broad discretion in ruling on discovery matters, and absent an abuse of
discretion, the Board will not find reversible error in such rulings. Kingsley v.
U.S. Postal Service , 123 M.S.P.R. 365, ¶ 16 (2016). The abuse of discretion
standard is a very high standard and it allows for great deference. Pecard v.
Department of Agriculture , 115 M.S.P.R. 31, ¶ 15 (2010).
The appellant has not persuaded us that the administrative judge abused his
discretion. In the close of record conference, the administrative judge identified
the sole issue to be resolved as whether the agency considered all of the
appellant’s experience in determining whether he was qualified for the Senior
Policy Analyst position. IAF, Tab 23 at 1. Many of the documents and much of
12
the information subsequently requested by the appellant went beyond the scope of
that issue and was not reasonably calculated to lead to the discovery of admissible
evidence. 5 C.F.R. § 1201.72(a). Moreover, the agency provided information
and documentation that was responsive to his discovery requests and the material
facts on the sole issue before the Board are largely undisputed. Therefore, we
conclude that there was no abuse of discretion. To the extent that the
administrative judge failed to address the appellant’s second request for
sanctions, we deny that request herein.
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
14
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
15
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
16
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Burnett_Kevin_P_DC-3330-19-0455-I-1__Final_Order.pdf | 2024-01-04 | KEVIN PATRICK BURNETT v. FEDERAL DEPOSIT INSURANCE CORPORATION, MSPB Docket No. DC-3330-19-0455-I-1, January 4, 2024 | DC-3330-19-0455-I-1 | NP |
2,562 | https://www.mspb.gov/decisions/nonprecedential/Williams_Joseph_H_AT-0752-21-0567-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH H. WILLIAMS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-21-0567-I-1
DATE: January 4, 2024
THIS ORDER IS NONPRECEDENTIAL1
J
erry Girley , Esquire, Orlando, Florida, for the appellant.
Andrew James Patch , Esquire, Tampa, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The agency has filed a petition for review of the initial decision,
which reversed the appellant’s removal on due process grounds. For the reasons
discussed below, we GRANT the agency’s petition for review, VACATE the
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
The appellant was formerly employed as a Material Handler at the Veterans
Health Administration in Orlando, Florida, until the agency removed him,
effective July 17, 2021, based on three charges of inappropriate conduct, failure
to follow instructions, and absence without leave. Initial Appeal File (IAF),
Tab 4 at 25, 27-28. The appellant filed a Board appeal, alleging that the agency
removed him in retaliation for filing equal employment opportunity complaints.
IAF, Tab 1, Tab 12 at 83. Although not raised by the appellant, during the
conclusion of the hearing, the administrative judge identified a potential due
process issue and ordered the parties to address the issue in their closing briefs.
IAF, Tab 24, Hearing Audio, Tab 26 at 1. Both parties responded to the
administrative judge’s order. IAF, Tabs 28-29.
Subsequently, the administrative judge issued an initial decision, reversing
the agency’s removal action because she found that it violated the appellant’s due
process rights by considering improper ex parte information. IAF, Tab 30, Initial
Decision (ID). In particular, the administrative judge found that, based on the
deciding official’s testimony, the agency denied the appellant notice and
an opportunity to respond to its consideration that his conduct constituted a
“threat” in determining the appropriate penalty. ID at 4. The administrative
judge was not persuaded by the deciding official’s responses that he did not make
his decision on charges not brought and that he did not believe that he had the
ability to substitute charges. ID at 3.
The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The appellant has responded to the agency’s petition. PFR File, Tab 4.
The agency has filed a reply. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
Pursuant to Ward v. U.S. Postal Service , 634 F.3d 1274, 1279 -80 (Fed. Cir.
2011), and Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368,
3
1376-77 (Fed. Cir. 1999), a deciding official violates an employee’s due process
rights when he relies upon new and material ex parte information as a basis for
his decision on the merits of a proposed charge or the penalty to be imposed.
Mathis v. Department of State , 122 M.S.P.R. 507, ¶ 6 (2015). An employee’s due
process right to notice extends to both ex parte information provided to a deciding
official and to information known personally to the deciding official if
he considered it in reaching his decision without previously disclosing it to the
appellant. Id. Ward, Stone, and their progeny recognize, however, that not all
ex parte communications rise to the level of due process violations; rather, only
ex parte communications that introduce new and material information to the
deciding official are constitutionally infirm. Id.
In Stone, the U.S. Court of Appeals for the Federal Circuit identified the
following factors to be used to determine whether ex parte information is new and
material: (1) whether the ex parte communication introduces cumulative,
as opposed to new, information; (2) whether the employee knew of the
information and had an opportunity to respond; and (3) whether the
communication was of the type likely to result in undue pressure on the deciding
official to rule in a particular manner. Stone, 179 F.3d at 1377. Ultimately,
the Board’s inquiry in deciding whether an employee’s due process rights have
been violated is “whether the ex parte communication is so substantial and so
likely to cause prejudice that no employee can fairly be required to be subjected
to a deprivation of property under such circumstances.” Id.
In the initial decision, the administrative judge found that the agency
violated the appellant’s due process rights by considering uncharged conduct,
or “a serious threat,” in its penalty determination without providing the appellant
notice and an opportunity to respond. ID at 2-3. In weighing the Stone factors,
the administrative judge determined that the deciding official’s consideration of a
“serious threat” introduced new information, that the appellant did not know of or
have a chance to respond to such information, and that “the agency’s
4
consideration of a charge other than that set forth in the notice of proposed
removal cannot fairly be deemed cumulative or immaterial to the deciding
official’s decision.” ID at 4.
On review, the agency argues that the administrative judge erred in finding
that the deciding official violated the appellant’s due process because
the proposal notice and its attachments provided the appellant with meaningful
notice of the charges against him and the agency’s perception of the charges.
PFR File, Tab 1 at 5-6; IAF, Tab 4 at 32, 39-40, 48-69. For the following
reasons, we agree.
Nothing in law or regulation requires that an agency affix a label to a
charge of misconduct. Otero v. U.S. Postal Service , 73 M.S.P.R. 198, 202
(1997). While an agency is required to state the reasons for a proposed adverse
action in sufficient detail to allow the employee to make an informed reply,
the charge must be viewed in light of the accompanying specifications and
circumstances, and should not be technically construed. Id. Here, the agency did
not charge the appellant with making a threat, nonetheless the proposal notice
indicated that the appellant made statements to the effect of: (1) “I guess I am
going to have to harm someone to get something done”; (2) “someone is going to
get hurt in here”; and (3) “[h]e was going to hurt someone.” IAF, Tab 4 at 39-40.
The narrative also contains dates, times, names of participants, and a detailed
description of the alleged events. Id. In addition, the alleged statements are
inherently threatening, and it was not necessary to specifically advise the
appellant that the deciding official might consider them as such. See Harding v.
U.S. Naval Academy , 567 F. App’x 920, 925 -26 (Fed. Cir. 2014) (finding that the
appellant was “not deprived of due process by not being advised in advance that
the deciding official might draw [an] inference from the nature of the charged
conduct”).2
2 Although Harding is an unpublished decision, the Board may rely on unpublished
Federal Circuit decisions where, as here, it finds the court’s reasoning persuasive.
Mauldin v. U.S. Postal Service , 115 M.S.P.R. 513, ¶ 12 (2011).
5
The Board has held that a notice of proposed adverse action need not be a
self-contained document; the notice requirement is satisfied when the proposal
and any attachments to it, taken together, provide the employee with specific
notice of the charges against him so that he can make an informed and meaningful
reply. Alvarado v. Department of the Air Force , 97 M.S.P.R. 389, ¶ 15 (2004).
Consequently, we find that the deciding official’s consideration of the appellant’s
conduct as a serious threat was not new information. See Stone, 179 F.3d at
1377.
Because we find that the deciding official did not consider new
information, we disagree with the administrative judge’s determination that the
appellant did not know of that information or have an opportunity to respond to it.
ID at 4. To the contrary, for the reasons discussed above, we find that the
appellant understood the charges against him, as well as the agency’s perception
of those charges, and had an opportunity to provide a meaningful response despite
electing not to do so. Accordingly, regardless of whether the purported ex parte
information was of the type likely to result in undue pressure, the other factors do
not weigh in the appellant’s favor and do not warrant a finding that the alleged ex
parte information was so substantial and so likely to cause prejudice that no
employee could fairly be required to be subjected to a deprivation of property
under the circumstances. See Stone, 179 F.3d at 1377.
In light of the foregoing, we vacate the initial decision and remand the case
to the regional office for adjudication on the merits. On remand,
the administrative judge shall conduct any further proceedings necessary to make
findings regarding the charge, the appellant’s affirmative defense, nexus, and the
penalty, including a supplemental hearing, if appropriate. Thereafter,
the administrative judge shall issue a new initial decision.
6
ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Williams_Joseph_H_AT-0752-21-0567-I-1_Remand_Order.pdf | 2024-01-04 | JOSEPH H. WILLIAMS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-21-0567-I-1, January 4, 2024 | AT-0752-21-0567-I-1 | NP |
2,563 | https://www.mspb.gov/decisions/nonprecedential/Linder_Stephen_B_CH-1221-14-0058-B-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEPHEN B. LINDER,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
CH-1221-14-0058-B-1
DATE: January 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cynthia H. Hyndman , Esquire, Chicago, Illinois, for the appellant.
Kelly L. McDonald , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The appellant has filed a petition for review, and the agency has filed a
cross petition for review of the remand initial decision that 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:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that 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 to eliminate the
administrative judge’s reliance on a deposition that the agency withdrew from the
record, we AFFIRM the remand initial decision.
¶2The appellant argues on review that the administrative judge erred by
relying on the deposition testimony of the Acting Deputy Director (ADD) in
concluding that the agency had strong reasons in support of its decision to
reassign the appellant because the agency withdrew the deposition transcript as a
hearing exhibit and the administrative judge ruled that it was “not a part of the
record.” Remand Petition for Review File, Tab 3 at 19-20; Remand Appeal File
(RAF), Tab 30 at 7-8. We agree. See Bradley v. Department of Veterans Affairs ,
78 M.S.P.R. 296, 301 n.3 (1998) (finding that an administrative judge erred in
considering evidence that he excluded from the record). Nevertheless, we find
that the remaining evidence is sufficient to show that the officials involved in the
reassignment decision were aware of the problems in the Northern District of
Illinois, and reasonably concluded that returning the appellant to duty in Chicago
would likely compound those problems and was not in the agency’s best interests.
See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984)
(explaining that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).2
Specifically, the administrative judge found, and the appellant does not dispute,
that the district was experiencing problems due to managerial conflicts, severe
financial difficulties, and a disruption in leadership. Remand Initial Decision
(RID) at 41-43, 63-64. Indeed, the ADD testified that the magnitude of these
problems was unprecedented in a district that size. RAF, Tab 35, Hearing
Transcript, Part 3 at 332 (testimony of the ADD). Considering the record as a
whole, we agree with the administrative judge that the agency proved by clear and
convincing evidence that it would have taken the same personnel action
notwithstanding the appellant’s protected disclosure. RID at 78-79.
¶3Accordingly, the remand initial decision is affirmed.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Linder_Stephen_B_CH-1221-14-0058-B-1__Final_Order.pdf | 2024-01-04 | STEPHEN B. LINDER v. DEPARTMENT OF JUSTICE, MSPB Docket No. CH-1221-14-0058-B-1, January 4, 2024 | CH-1221-14-0058-B-1 | NP |
2,564 | https://www.mspb.gov/decisions/nonprecedential/Green_Shawn_CH-0731-17-0459-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHAWN GREEN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0731-17-0459-I-1
DATE: January 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shawn Green , Chicago, Illinois, pro se.
Sheila Fitzpatrick , Hines, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review and the appellant has filed a
cross petition for review of the initial decision, which reversed the agency’s
suitability action. For the reasons discussed below, we GRANT the petition for
review, REVERSE the initial decision, and DENY the cross petition for review.
The agency’s suitability action is SUSTAINED.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
On April 28, 2017, the appellant filed an application with the agency for
the competitive service position of GS-5 Medical Instrument Technician. Initial
Appeal File (IAF), Tab 8 at 20, 131-49. On his Declaration for Federal
Employment, the appellant indicated a significant arrest history. Id. at 135-38.
On May 1, 2017, the Office of Personnel Management (OPM) conducted a
background investigation on the appellant and transmitted the results of that
investigation to the agency. Id. at 102-30. Based on this information, the agency
conducted a suitability review under its delegated authority. Id. at 100-01, 158.
On May 9, 2017, the agency notified the appellant that the results of the review
revealed 17 incidents of “criminal or dishonest conduct” between January 19,
2003 and June 2, 2016, which raised a serious question concerning his suitability
for Federal employment. Id. at 78, 100-01. The agency afforded the appellant an
opportunity to provide further pertinent information, including explanations of
the 17 arrest incidents at issue. Id. at 79-99. After the appellant responded, id.
at 38-77, on July 14, 2017, the agency issued a final suitability determination
finding the appellant unsuitable for employment as a Medical Instrument
Technician and cancelling any eligibilities he had for covered positions. Id.
at 30-37.
The appellant filed a Board appeal, challenging the merits of the suitability
action and raising an affirmative defense of disability discrimination. IAF,
Tab 1, Tab 26 at 1-3. After a hearing, the administrative judge issued an initial
decision reversing the suitability action. IAF, Tab 32, Initial Decision (ID). She
found that the agency proved only eight of the 17 specifications of criminal
conduct, and that it failed to establish a nexus between the remaining
specifications and the integrity or efficiency of the service. ID at 4-20. The
administrative judge also found that the appellant failed to prove his disability
discrimination claim. ID at 21-25. She ordered the agency to cancel the2
appellant’s negative suitability determination, return him to all appropriate
eligibility lists, and provide him with interim relief in the event that either party
petitioned for review. ID at 26-27.
The agency has filed a petition for review, arguing that the administrative
judge misapplied the burden of proof and made several erroneous findings of fact
in concluding that it failed to establish nexus. Petition for Review (PFR) File,
Tab 1. The appellant has filed a response, as well as a cross petition for review,
arguing that the administrative judge erred in finding that he failed to prove
disability discrimination. PFR File, Tab 8. He also challenges the agency’s
compliance with the interim relief order. PFR File, Tab 3. The agency has filed a
reply to the appellant’s response. PFR File, Tab 9.
ANALYSIS
The agency has provided acceptable evidence of its compliance with the interim
relief order.
When, as here, the appellant was the prevailing party in the initial decision
and interim relief was ordered, a petition for review filed by the agency must be
accompanied by a certification that the agency has complied with the interim
relief order, either by providing the interim relief ordered, or by making a
determination that returning the appellant to the place of employment would
cause undue disruption to the work environment. Ayers v. Department of the
Army, 123 M.S.P.R. 11, ¶ 6 (2015); 5 C.F.R. § 1201.116(a); see 5 U.S.C.
§ 7701(b)(2)(A)(ii). An agency’s failure to comply with these requirements may,
at the Board’s discretion, result in the dismissal of its petition for review.
Guillebeau v. Department of the Navy , 362 F.3d 1329, 1332-33 (Fed. Cir. 2004);
5 C.F.R. § 1201.116(e).
In this case, the agency’s petition for review includes a copy of a letter to
the appellant from the Chief of its Suitability Section indicating that the agency
has reinstated his eligibilities in compliance with the administrative judge’s3
interim relief order. PFR File, Tab 1 at 12. The appellant challenges the
agency’s certification of compliance, arguing that the Suitability Chief has not
returned his telephone call to discuss the details of the interim relief, and that,
based on the initial decision and its ordering language, he believes that the
agency is not in compliance with the interim relief order.1 PFR File, Tab 3 at 4-5.
In reply, the agency asserts that the Suitability Chief’s letter is sufficient to
demonstrate compliance. PFR File, Tab 9 at 4.
When an appellant challenges an agency’s compliance with an interim
relief order, 5 C.F.R. § 1201.116(b) provides a mechanism for the Board to order
the agency to submit evidence of compliance. We find it unnecessary to do so in
this case because we find no reason to doubt that the agency provided interim
relief as stated in the Suitability Chief’s letter. PFR File, Tab 1 at 12. We
disagree with the appellant that the language in the initial decision casts any
doubt on the compliance efforts that the agency undertook after the initial
decision was issued. PFR File, Tab 3 at 5. Nor has the appellant presented any
other evidence or allegation that would provide a concrete basis for us to question
the agency’s certification of compliance. Thus, an order to submit evidence of
compliance under 5 C.F.R. § 1201.116(b) would serve no purpose because the
agency has already submitted sufficient evidence of compliance with its petition
for review.
The agency proved that the appellant committed criminal conduct that may have
an impact on the integrity or efficiency of the service.
In a suitability appeal, the agency must prove by preponderant evidence
that the appellant’s conduct or character may have an impact on the integrity or
efficiency of the service, based on one of the specific factors listed in 5 C.F.R.
1 The appellant styles his challenge a “Petition for Enforcement of Interim Relief.”
PFR File, Tab 3 at 4. Because the Board’s regulations do not provide for such a
pleading, we have considered it as a challenge to the agency’s certification of
compliance under 5 C.F.R. § 1201.116(b). See Elder v. Department of the Air Force ,
124 M.S.P.R. 12, ¶ 20 (2016). 4
§ 731.202(b). Hudlin v. Office of Personnel Management , 119 M.S.P.R. 61, ¶ 9
(2012); see 5 C.F.R. §§ 731.101(a), 731.202(a), 731.501(b). “Criminal or
dishonest conduct” may serve as a basis for a negative suitability determination.
5 C.F.R. § 731.202(b)(2). The Board has jurisdiction to review all aspects of a
suitability action, including whether the charged conduct renders an individual
unsuitable for the position in question. Folio v. Department of Homeland
Security, 402 F.3d 1350, 1354 -56 (Fed. Cir. 2005).
In this case, the administrative judge found that the agency proved only
8 out of the 17 specifications of criminal conduct, and of those 8, it proved 2 of
them only in part. ID at 4-14. For the specifications that she did not sustain, the
administrative judge found that they were supported only by the fact that the
appellant was arrested or that charges were filed, and that this alone was not
enough to show that the appellant actually engaged in criminal conduct as
alleged. Id.
On petition for review, the agency argues that the administrative judge
erred in requiring it to submit additional evidence of the appellant’s criminal
conduct beyond that contained in the results of OPM’s background report. PFR
File, Tab 1 at 4-6. It argues that the results of the report should be sufficient to
meet its burden of proof that the matters identified therein actually occurred and
that requiring it to produce additional evidence would be burdensome and
necessitate a second round of predecisional procedures. Id. at 5-6.
We have considered the agency’s arguments, but we find that they do not
establish that the administrative judge misapplied the law. Although we agree
that the results of the background report are sufficient to show that the matters
identified therein actually occurred, the only thing that this background report
shows is a series of arrests and criminal charges. IAF, Tab 8 at 111-27. The
agency asserts a practice of making suitability determinations based on such
information, but it has not cited to any case in which the Board ever sustained a5
suitability charge of criminal conduct based on an arrest or charge alone. It is,
however, well-established in chapter 75 case law that the mere fact of an arrest or
a criminal charge does not constitute preponderant evidence that the individual
actually committed the crime of which he was accused.2 Barber v. Department of
the Navy, 8 M.S.P.R. 229, 230 (1981). This same preponderant evidence standard
applies to suitability appeals. Hudlin, 119 M.S.P.R. 61, ¶ 9; 5 C.F.R.
§ 1201.56(b)(1)(ii). The specifications that the administrative judge found
proven were based on the appellant’s admissions of criminal conduct, which
substantiated the allegations underlying the arrests and charges, and we agree
with her that these admissions were sufficient to sustain those specifications. ID
at 4-15; see Pound v. Office of Personnel Management , 25 M.S.P.R. 134, 136
(1984). For the reasons explained in the initial decision, we agree with the
administrative judge that the agency proved 8 of the 17 specifications at issue
either in whole or in part. ID at 4-15.
Once a suitability charge is proven, the agency is required to show that the
conduct at issue bears a nexus to the integrity or the efficiency of the service, i.e.,
whether the conduct renders the appellant unsuitable for the position in question.
Folio, 402 F.3d at 1356; 5 C.F.R. § 731.201. In making this determination, the
Board will consider all relevant factors set forth in 5 C.F.R. § 731.202(c). Doerr
v. Office of Personnel Management , 104 M.S.P.R. 196, ¶¶ 8, 11 (2006). Those
factors are: (1) the nature of the position for which the person is applying or in
which the person is employed; (2) the nature and seriousness of the conduct;
(3) the circumstances surrounding the conduct; (4) the recency of the conduct;
(5) the age of the person involved at the time of the conduct; (6) contributing
societal conditions; and (7) the absence or presence of rehabilitation or efforts
toward rehabilitation. 5 C.F.R. § 731.202(c).
2 In fact, in the absence of an indictment or some other evidence, an arrest or charge is
insufficient even to give an agency “reasonable cause” to believe that a crime has been
committed. Dunnington v. Department of Justice , 956 F.2d 1151, 1157 (Fed. Cir.
1992).6
In this case, the administrative judge considered these factors and found
that the agency failed to show that the proven criminal conduct rendered the
appellant unsuitable for employment as a Medical Instrument Technician. ID
at 15-20. Specifically, she found that the agency failed to show that anything
about the position elevated it to a higher level of sensitivity, trust, or
responsibility than other Executive Branch positions. ID at 16. She further found
that the agency failed to establish that the proven conduct was particularly serious
or that the recency of that conduct was of any consequence. ID at 16-19. The
administrative judge also found that the appellant’s homelessness and mental
health challenges likely contributed to his offenses. ID at 19-20. Finally, she
found that, although the appellant had earlier made some unsuccessful attempts at
rehabilitation, he had recently completed 24 sessions of outpatient treatment and
10 twelve-step meetings with the agency and had become more stable within the
previous year. Id. On petition for review, the agency argues that the
administrative judge misinterpreted some of the evidence on which she based her
conclusion and misapplied its framework for assessing the seriousness of a
criminal offense. PFR File, Tab 1 at 7-11.
Regarding the nature of the Medical Instrument Technician position, the
agency argues that it is “directly related to patient care,” and that the appellant’s
résumé and his response to the affirmative defenses order shows that he was
interacting with patients. PFR File, Tab 1 at 7. This argument provides no basis
to disturb the initial decision. The agency has not identified any evidence in the
record that would show what the duties of a Medical Instrument Technician
actually are, and agency counsel’s unsupported assertion that the position is
“directly related to patient care” does not constitute evidence of the same. A
statement of a party’s representative in a pleading is not evidence. Hendricks v.
Department of the Navy , 69 M.S.P.R. 163, 168 (1995). Moreover as the
administrative judge correctly noted, performing duties directly related to patient7
care is not the same as performing direct patient care. ID at 16. As for the
appellant’s résumé and response to the affirmative defenses order, all these
documents show is that the appellant previously provided direct patient care in
other jobs. IAF, Tab 5 at 1-2, 20-21. This evidence bears no relevancy
whatsoever to the nature of the position at issue.3 We further note that the
Medical Instrument Technician position requires a Tier 1 background
investigation. IAF, Tab 8 at 36. Tier 1 investigations are for positions
designated by the agency as “Low Risk,” i.e., “involv[ing] duties or
responsibilities with the potential for limited impact on the integrity or efficiency
of the service.” Id. at 155-58, 163. Nor has the agency shown that the proven
criminal conduct bears any special relationship to the duties of the position. Cf.
Leibowitz v. Department of Justice , 88 M.S.P.R. 635, ¶¶ 13-14 (2001) (affirming
a negative suitability determination for an Immigration and Naturalization
Service applicant who admitted that he allowed an illegal alien to reside with
him), aff’d, 41 F. App’x 412 (Fed. Cir. 2002). For these reasons, we agree with
the administrative judge that the agency has not established that the nature of the
Medical Instrument Technician position weighs in favor of a negative suitability
determination. ID at 16.
Regarding the nature, seriousness, and recency of the conduct, both the
agency and the administrative judge relied heavily on the Suitability Adjudication
Guidelines in OPM’s Suitability Processing Handbook. IAF, Tab 8 at 155,
225-36. These guidelines provide a four-tier system for ranking suitability issues
according to their seriousness and potential for a negative suitability
determination, with “A” issues being the least serious and “D” issues being the
most serious. Id. at 225. Under the Handbook, an “A” issue is minor and would
not, standing alone, constitute a basis for a negative suitability determination; a
3 These documents do seem to show that the appellant once held a similar position at a
non-Veterans’ Administration hospital, but that his duties there were limited to
organizing, sterilizing, and distributing medical equipment to staff. IAF, Tab 5 at 1, 20.8
“B” issue is moderate and would probably not, standing alone, constitute a basis
for a negative suitability determination; a “C” issue is substantial and would
probably, standing alone, constitute a basis for a negative suitability
determination; a “D” issue is major and would, standing alone, constitute a basis
for a negative suitability determination. Id. Depending on the recency of an
issue and the number of similar issues within the same timeframe, its level may
be upgraded or downgraded. Id. at 227-28. The relevant timeframes, as
measured backward from the “control date,” are 0-36 months, 37 -72 months, and
73-108 months.4 Id.
In this case, the agency in its suitability adjudication worksheet found that
the appellant had committed one A-level offense, two B-level offenses, and two
D-level offenses within the previous 36 months. Id. at 100-01. Based on the
pattern and recency of conduct, it upgraded the three lesser offenses to D-level, as
well. IAF, Tab 8 at 101-01, 227; Hearing Recording (HR), Track 1 at 11:20
(testimony of the Suitability Chief). The agency also found that the appellant
committed three B-level, one C-Level, and one D-level offense within the
37-72 month timeframe, but each of these offenses was downgraded one level due
to the passage of time. IAF, Tab 8 at 100, 227-28. The agency also found that
the appellant committed several offenses beyond the 72 -month mark, but due to
the passage of time all of these became non -issues. Id. at 100-01, 227-28.
Excluding the agency’s unproven specifications from consideration, the
administrative judge applied the same formulae and determined that the agency
proved only that the appellant committed two B-level offenses within 36 months
of the control date and that these could not be properly upgraded under the
Handbook. ID at 18-19. She also found that, after downgrading for the passage
of time, the agency proved two A -level and one B-level offenses for the
37-72 month timeframe. ID at 18. There was another offense within this latter
4 The “control date” varies based on the type of case. IAF, Tab 8 at 227. In this case,
the agency asserts that the control date was May 1, 2017. PFR File, Tab 1 at 8. 9
time period (resisting a peace officer and aggravated assault of a police officer or
volunteer) that the agency had rated a D, and downgraded to a C. IAF, Tab 8
at 100. However, the administrative judge found that this specification was only
partly proven and that the agency did not show that the proven portion of the
misconduct (resisting a peace officer) warranted such a serious rating.5 ID
at 11, 18.
On petition for review, the agency argues that the administrative judge
erred in her analysis, but this argument is largely premised on the administrative
judge’s alleged error in not sustaining many of the specifications. PFR File,
Tab 1 at 7-10. As explained above, the agency failed to show any error in this
regard. Supra ¶ 11. The agency also argues that it is the appellant’s
responsibility to provide the details of the circumstances surrounding his arrests.
PFR File, Tab 1 at 7-9. It faults him for failing to present any evidence at the
predecisional stage “to possibly mitigate his arrest record.” Id. at 8-9. However,
OPM’s regulations do not identify an arrest record as a potential basis for a
suitability action. They do identify criminal conduct as a potential basis, 5 C.F.R.
§ 731.202(b)(2), but, as explained above, an arrest record alone is not enough to
substantiate criminal conduct, supra ¶ 11. Furthermore, it is the agency’s burden
to establish an evidentiary record in support of its action and to make the ultimate
showing that the nature of the appellant’s misconduct warrants a negative
suitability determination. 5 C.F.R. §§ 731.501(b), 1201.56(b)(1)(ii). It is not the
appellant’s burden to prove the opposite. For the reasons explained in the initial
5 According to the excerpt of the Suitability Processing Handbook that the agency
submitted for the record, there is an appendix of information for agencies to use in
rating various offenses from A to D. IAF, Tab 8 at 225. The agency did not provide
this appendix for the record, and it does not otherwise appear that the agency offered
any information that might justify a C rating for the sustained portion of this
specification. This is particularly so considering that the agency assigned an A rating to
a 2003 offense of “resisting or obstructing an officer.” Id. at 101. We find that the
agency has not proven that the sustained portion of the specification at issue should be
rated anything more than a B-level offense.10
decision, we agree with the administrative judge’s analysis of the ratings under
the Suitability Processing Handbook, and we find that the agency proved the
existence of two A-level and four B-level offenses within the time period for
consideration. ID at 17-19. Nevertheless, we do find that, in the aggregate, this
record of offenses gives cause for concern. The agency has established that the
appellant engaged in criminal destruction of property, driving under the influence
on a suspended license, disorderly conduct, public intoxication, assaulting a
paramedic, and resisting arrest, all within the previous 6 years. ID at 4-5, 8-11.
Based on this evidence, we find that, at least at the time the agency took its
suitability action, there was a serious question about the appellant’s overall
stability and his ability to follow rules and interact with others, including
authority figures, in a calm and reasonable manner.6 Id.
Regarding societal conditions that may have contributed to the appellant’s
criminal conduct, the administrative judge found that the appellant’s
homelessness appears to have played a role in some of the sustained
specifications. ID at 19-20. She reasoned that the appellant’s misconduct
frequently arose from his refusal to leave the place where he was and that he
would not likely have been charged with the sustained offenses if he could drink
at home. Id. On review, the agency argues that this was a “biased” and
unjustifiable assumption by the administrative judge, particularly when not all of
the appellant’s arrests included alcohol consumption. PFR File, Tab 1 at 8. The
administrative judge also found that the appellant’s mental health challenges
6 A significant amount of time has elapsed between the July 14, 2017 suitability
determination and the issuance of this Final Order, and there is nothing in the record
concerning the appellant’s conduct during the intervening period. However, we find
that evidence of the appellant’s conduct after the agency made its suitability
determination would be immaterial to the outcome of the appeal. 11
constituted a substantial mitigating circumstance.7 ID at 20. The agency does not
appear to contest this finding.
As an initial matter, we disagree with the agency that the administrative
judge’s case-related ruling was in any way indicative of bias. See Martinez v.
Department of the Interior , 88 M.S.P.R. 169, ¶ 14 (2001). Furthermore, we find
it rather obvious that homelessness is a difficult life circumstance that can lead to
run-ins with law enforcement. We therefore agree with the administrative judge
that this situation may, at least in part, account for the extent of the appellant’s
criminal history. As for the appellant’s alcohol consumption, the agency’s
argument once again proceeds from the premise that it proved all of its
specifications, which it did not. It appears to us that all or nearly all of the
sustained specifications were alcohol -related. ID at 4, 8-11, 14. Nevertheless,
alcohol abuse may itself provide a basis for a negative suitability determination,
5 C.F.R. § 731.202(b)(5), so we do not consider the appellant’s ability to abuse
alcohol at home rather than in public to be a substantial mitigating factor. As for
the appellant’s mental health condition, we also agree with the administrative
judge that this appears to have played a role in much of his criminal conduct and
that it is appropriate to consider it as part of the nexus analysis to the extent that
he has experienced rehabilitation. Cf. Mingledough v. Department of Veterans
Affairs, 88 M.S.P.R. 452, 458, ¶ 12 (2001) (“[T]he Board has not considered a
medical or mental impairment to be a significant mitigating factor in the absence
of evidence that the impairment can be remedied or controlled, i.e., when the
potential for rehabilitation is poor.”).
Regarding the appellant’s rehabilitative efforts, the administrative judge
acknowledged that he had undergone previous unsuccessful attempts at
rehabilitation, including dozens of sessions with the agency’s Outpatient
Addiction Treatment Program (ATP) Trauma Track on and off since 2008. ID
7 The appellant has been diagnosed with posttraumatic stress disorder, depression, and
alcohol dependency. HR, Track 3 at 30:20 (testimony of the appellant’s psychiatrist).12
at 19. She nevertheless found that the appellant had recently completed
significant rehabilitation efforts in the form of 36 additional ATP sessions, and
noted that the appellant’s treating psychiatrist testified that the appellant has been
doing much better since then. ID at 19. On petition for review, the agency
argues that the appellant’s history of unsuccessful attempts at rehabilitation casts
serious doubt on the efficacy of his most recent attempts. PFR File, Tab 1 at 11.
It further argues that the appellant’s psychiatrist did not know about the extent of
the appellant’s criminal history, had only met with him sporadically during the
past 2 years, and formed his opinion of the appellant’s stability based on the
appellant’s self-reports rather than on a full examination. Id. at 10.
As an initial matter, we do not think that the testimony of the appellant’s
treating psychiatrist can be entirely discounted. He testified candidly concerning
his history with the appellant, including that he had met with the appellant
approximately eight times from 2015 through 2017, and that he was aware of at
least some of the appellant’s criminal history through the appellant’s self-reports.
HR, Track 3 at 52:30, 58:05 (testimony of the appellant’s psychiatrist). Even in
the absence of a comprehensive mental health evaluation, we have little reason to
doubt his opinion, formed by observing the appellant in a clinical setting, that the
appellant had, in fact, become more mentally stable over the past year. HR,
Track 3 at 35:00, 49:45 (testimony of the appellant’s psychiatrist). Nevertheless,
we agree with the agency that, in light of the appellant’s extensive and
unsuccessful prior attempts at rehabilitation through the ATP, there remained a
serious question as to the permanency of any gains that he may have made more
recently. PFR File, Tab 1 at 11; IAF, Tab 8 at 64. OPM’s suitability regulations
are grounded in the principle that there is always hope for rehabilitation. See
5 C.F.R. §§ 731.204-.205 (prohibiting debarments for more than 3 years before an
applicant’s suitability must be reassessed). The record shows that the appellant is
working earnestly toward rehabilitation and that he has made some recent gains13
that appear to be promising. However, based on the duration and extent of the
appellant’s criminal history and his inability to overcome his difficulties in the
past, the record does not support a finding that the appellant’s criminal history
was behind him at the time the agency took its suitability action. Therefore, we
cannot agree that the agency has failed to establish a nexus between this conduct
and the integrity or the efficiency of the service.
Because the agency has proven its charge of criminal conduct and
established nexus, we affirm the suitability action. See Campbell v. Office of
Personnel Management , 24 M.S.P.R. 520, 523 (1984). We note, however, that
the agency’s decision letter indicates that the only suitability action it took was to
cancel the appellant’s pending eligibilities. IAF, Tab 8 at 28. There is no
mention of any period of debarment. Our decision in this appeal does not
preclude the appellant from reapplying for Federal employment and having a new
suitability determination made based on his current rehabilitation status. Stewart
v. Office of Personnel Management , 8 M.S.P.R. 289, 298 (1981).
The appellant did not prove his affirmative defense of disability discrimination.
The administrative judge analyzed the appellant’s disability discrimination
defense under both disparate treatment and reasonable accommodation theories.
ID at 21-25. She found that the appellant failed to prove his claim under a
reasonable accommodation theory because he did not request a reasonable
accommodation in the suitability process and he did not identify an
accommodation that could accommodate his disabling conditions. ID at 22. She
also found that the appellant failed to prove his claim under a disparate treatment
theory because the agency provided a legitimate, nondiscriminatory reason for its
suitability action, and the appellant failed to provide evidence of discriminatory
animus sufficient to rebut the agency’s explanation for the action. ID at 24-25.
On cross petition for review, the appellant disputes these findings. PFR File,
Tab 8 at 6-14. After the administrative judge issued the initial decision, the14
Board clarified the legal standard for proving disability discrimination. We apply
that standard now.
The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act. Haas v. Department of Homeland Security ,
2022 MSPB 36, ¶ 28; Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶ 35. The Rehabilitation Act has incorporated the standards of the Americans
with Disabilities Act (ADA), as amended by the Americans with Disabilities Act
Amendments Act of 2008. Haas, 2022 MSPB 36, ¶ 28; Pridgen, 2022 MSPB 31,
¶ 35. Therefore, we apply those standards here to determine if there has been a
Rehabilitation Act violation. In particular, the ADA provides that it is illegal for
an employer to “discriminate against a qualified individual on the basis of
disability.” 42 U.S.C. § 12112(a); Haas, 2022 MSPB 36, ¶ 28. A qualified
individual with a disability is one who can “perform the essential functions of
the . . . position that such individual holds or desires” with or without reasonable
accommodation. 42 U.S.C. § 12111(8); Haas, 2022 MSPB 36, ¶ 28. An
employer is also required to provide reasonable accommodations to an otherwise
qualified individual with a disability. 42 U.S.C. § 12112(b)(5); Haas, 2022 MSPB
36, ¶ 28. Thus, both a claim of disability discrimination based on an individual’s
status as disabled and a claim based on an agency’s failure to reasonably
accommodate that disability require that the individual be “qualified.” Haas,
2022 MSPB 36, ¶ 28.
We find that the appellant in this case is not a qualified disabled individual
because, during the relevant time period, he could not satisfy the requisite skill,
experience, education, and other job-related requirements of the Medical
Instrument Technician position and because he does not satisfy the job-related
requirement of a favorable suitability determination.8 See 5 C.F.R. § 731.104(a),
8 Even assuming that the appellant’s criminal conduct was a direct manifestation of his
disability, nothing in the Rehabilitation Act requires the agency to exempt him from15
29 C.F.R. § 1630.2(m). Nor has the appellant identified a reasonable
accommodation that would enable him to satisfy this job -related requirement.
Because he is not a “qualified disabled individual,” he cannot prevail on his
disability discrimination claim under either a disparate treatment theory or a
reasonable accommodation theory. Haas, 2022 MSPB 36, ¶ 28.
NOTICE OF APPEAL RIGHTS9
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
standard suitability requirements or to excuse misconduct that it would not excuse from
non-disabled applicants. See Fitzgerald v. Department of Defense , 85 M.S.P.R. 463, ¶ 4
(2000); Laniewicz v. Department of Veterans Affairs , 83 M.S.P.R. 477, ¶ 5 (1999).
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.16
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,17
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 18
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 19
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.20 | Green_Shawn_CH-0731-17-0459-I-1__Final_Order.pdf | 2024-01-03 | SHAWN GREEN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0731-17-0459-I-1, January 3, 2024 | CH-0731-17-0459-I-1 | NP |
2,565 | https://www.mspb.gov/decisions/nonprecedential/Ingram_Jeanette_M_DA-3443-18-0047-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEANETTE M. INGRAM,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DA-3443-18-0047-I-1
DATE: January 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeanette M. Ingram , Waxahachie, Texas, pro se.
Bridgette M. Gibson , Esquire, and Michael L. Salyards , 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
found that the agency reduced her pay in order to correct a pay -setting error that
was contrary to law or regulation and dismissed her appeal for lack of jurisdiction
after holding a hearing. On petition for review, the appellant argues that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
agency did not set her pay at a rate contrary to law or regulation.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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 The Board sympathizes with the appellant and finds disturbing the agency’s
pay-setting error and failure to discover it for more than a decade. But absent
jurisdiction over the appeal, the Board lacks authority to order any relief.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Ingram_Jeanette_M_DA-3443-18-0047-I-1__Final_Order.pdf | 2024-01-03 | JEANETTE M. INGRAM v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DA-3443-18-0047-I-1, January 3, 2024 | DA-3443-18-0047-I-1 | NP |
2,566 | https://www.mspb.gov/decisions/nonprecedential/Bradfield_Rebekah_M_CH-844E-22-0078-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REBEKAH M. BRADFIELD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-844E-22-0078-I-1
DATE: January 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rebekah M. Bradfield , White Bear Lake, Minnesota, pro se.
Linnette L. Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision,
which dismissed her appeal of an Office of Personnel Management
reconsideration decision denying her application for disability retirement benefits
as untimely filed without good cause shown. On petition for review,
the appellant mainly complains about the fact that she was not able to have a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
telephonic status conference to discuss her appeal. Petition for Review File,
Tab 1 at 3. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Bradfield_Rebekah_M_CH-844E-22-0078-I-1__Final_Order.pdf | 2024-01-03 | REBEKAH M. BRADFIELD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-844E-22-0078-I-1, January 3, 2024 | CH-844E-22-0078-I-1 | NP |
2,567 | https://www.mspb.gov/decisions/nonprecedential/James_Vionette_PH-0432-21-0155-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VIONETTE JAMES,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
PH-0432-21-0155-I-2
DATE: January 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vionette James , Franklin Park, New Jersey, pro se.
Dora Malykin , Riverdale, Maryland, for the agency.
Sandy S. Francois , Kenner, 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
affirmed her performance-based removal under chapter 43 and found that she
failed to prove her affirmative defenses of discrimination based on race and
retaliation for prior equal employment opportunity (EEO) activity. On petition
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
for review, the appellant reasserts her claim that the agency demoted her because
of her race and prior EEO activity reasoning that it failed to demonstrate that she
had unacceptable performance . Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review.
In the initial decision, the administrative judge concluded that the appellant
failed to meet her burden of proving her claims that her race or prior EEO activity
were motivating factors in her demotion. Initial Appeal File, Tab 10, Initial
Decision at 55-57 (citing Savage v. Department of the Army , 122 M.S.P.R. 612
(2015)). After the initial decision was issued, the Board clarified in part, and
overruled in part, its decision in Savage. Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 23, 25. Because we find the administrative judge’s
reasoning consistent with Pridgen, we discern no basis to disturb the initial
decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282
(1984) (finding that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).
Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | James_Vionette_PH-0432-21-0155-I-2__Final_Order.pdf | 2024-01-03 | VIONETTE JAMES v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. PH-0432-21-0155-I-2, January 3, 2024 | PH-0432-21-0155-I-2 | NP |
2,568 | https://www.mspb.gov/decisions/nonprecedential/Karsh_Michael_A_SF-315H-18-0280-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL A. KARSH,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
SF-315H-18-0280-I-1
DATE: January 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael A. Karsh , Martinez, California, pro se.
Ian J. Watson , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant argues that the administrative judge erred by
finding that he failed to make a nonfrivolous allegation that the agency managers
involved in his termination were aware of his political affiliation. Generally, we
grant petitions such as this one only in the following circumstances: the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given 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.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
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
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Karsh_Michael_A_SF-315H-18-0280-I-1__Final_Order.pdf | 2024-01-03 | MICHAEL A. KARSH v. DEPARTMENT OF THE TREASURY, MSPB Docket No. SF-315H-18-0280-I-1, January 3, 2024 | SF-315H-18-0280-I-1 | NP |
2,569 | https://www.mspb.gov/decisions/nonprecedential/King_Andrew_F_AT-0752-18-0440-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW FORREST KING,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0752-18-0440-I-1
DATE: January 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher D. Vaughn , Esquire, Decatur, Georgia, for the appellant.
Robert N. Rushakoff , Esquire, Fort Gordon, Georgia, for the agency.
Christopher M. Kenny , Fort Eisenhower, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. On petition for review, the appellant argues that the
agency’s action does not promote the efficiency of the service and that removal is
not a reasonable penalty for the sustained charge. He also disputes the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative judge’s finding that his speech was not protected by the First
Amendment. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings 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 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:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | King_Andrew_F_AT-0752-18-0440-I-1__Final_Order.pdf | 2024-01-03 | ANDREW FORREST KING v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-18-0440-I-1, January 3, 2024 | AT-0752-18-0440-I-1 | NP |
2,570 | https://www.mspb.gov/decisions/nonprecedential/Pickett_Justin_L_CH-0752-22-0084-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUSTIN LEE PICKETT,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-0752-22-0084-I-1
DATE: January 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joshua L. Klinger , Esquire, Denver, Colorado, for the appellant.
Bienvenido Banchs , Mandeville, Louisiana, for the appellant.
Steven A. Schultz , Esquire, Lansing, Michigan, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The agency 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 “Settlement Agreement” and dated September 7, 2023. Petition for
Review (PFR) File, Tab 7 at 1. The document provides, among other things, for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the withdrawal of the appellant’s underlying appeal and the agency’s petition for
review. Id.
¶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.2 PFR File, Tab 7 at 4. Accordingly, we find that
dismissing the petition for review with prejudice to refiling (i.e., the parties
normally may not refile this appeal) is appropriate under these circumstances. In
addition, we find that the agreement is lawful on its face and freely entered into,
and we accept the settlement agreement into the record for enforcement purposes.
¶5This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
2 The agreement contains what appears to be a typographical error. Specifically, it
states that the agreement is “in full force and effect for the entire period specified in
paragraph (d).” PFR File, Tab 7 at 4. However, the time period for the agreement
(24 months) is actually specified in paragraph (e). Id. It is apparent from the face of
the agreement that the parties’ intended meaning is that the settlement agreement will
be “in full force and effect” for 24 months, as specified in paragraph (e). See Brown v.
Department of the Interior , 86 M.S.P.R. 546, ¶ 17 (2000) (stating that only when the
parties’ intended meaning is not apparent from the face of the agreement is it
appropriate to consider extrinsic evidence of the parties intent) (citations omitted).2
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL 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.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Pickett_Justin_L_CH-0752-22-0084-I-1__Final_Order.pdf | 2024-01-03 | JUSTIN LEE PICKETT v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-0752-22-0084-I-1, January 3, 2024 | CH-0752-22-0084-I-1 | NP |
2,571 | https://www.mspb.gov/decisions/nonprecedential/Bailey_Daniel_NY-0752-17-0162-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL BAILEY,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
NY-0752-17-0162-I-1
DATE: January 3, 2024
THIS ORDER IS NONPRECEDENTIAL1
Daniel Bailey , Manlius, New York, pro se.
Gabriel A. Hindin , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal for failure to accept a directed reassignment. For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the field office for
further adjudication consistent with this order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant was formerly employed by the Office of the Comptroller of
the Currency (OCC) as an Assistant Deputy Director (ADC), NB -0570-VII, in
Syracuse, New York. Initial Appeal File (IAF), Tab 1 at 1. The OCC is the
primary supervisor of national banks and Federal thrift institutions, and is
charged with “assuring the safety and soundness of, and compliance with laws
and regulations, fair access to financial services, and the fair treatment of
customers by, the institutions and other persons subject to its jurisdiction.”
12 U.S.C. § 1; IAF, Tab 5 at 100. Institutions under the supervision of the OCC
range from small community banks and thrift institutions to some of the largest
and most complex financial institutions in the world. IAF, Tab 5 at 100.
In 2013, the Comptroller of the Currency commissioned an international
peer review team to assess OCC’s policies relating to the agency’s large and
mid-size bank supervision programs. Id. at 91. The peer review team submitted
its recommendations on December 4, 2013. Id. at 91, 99-121. Among other
things, the peer review team recommended the establishment of a formal rotation
process for all bank examination staff, in order to provide a “richer and more
diverse set of experiences.” Id. at 115.
On November 9, 2015, the agency established a new policy, PPM 5000 -42,
Examiner Rotational Requirements, implementing rotational requirements for
certain OCC examiners. Id. at 80-89. The stated purpose of the policy was “to
strengthen supervisory processes and examiner expertise, provide staff with
a richer and more diverse set of experience, promote cross training,
enhance professional and leadership development, and support agency
succession planning.” Id. at 84. The policy imposed a 10-year term limit
for certain positions, including the appellant’s ADC position. Id. at 85. On
November 10, 2015, an email was sent to all OCC employees explaining the
scope and purpose of the new rotation policy. Id. at 80-82. The email indicated
that employees in positions subject to term limits would receive a letter within2
30 days outlining the length of time in their position and the timing of the
transition. Id. at 80.
By letter dated December 9, 2015, the appellant was advised that his ADC
position had been designated as a position subject to a 10-year term limit, applied
retroactively. Id. at 68-69. The letter further explained that, because he was
within 1½ years of reaching the 10-year term limit, he would be granted a grace
period of up to 18 months from the issuance of PPM 5000-42 to allow for
sufficient time to transition to a new OCC position. Id. at 68.
On March 24, 2017, the Deputy Director of the Northeast District issued
the appellant a letter of directed reassignment, informing him that, effective
May 14, 2017, he would be reassigned to the position of Supervisory National
Bank Examiner, NB-0570-VII, in New York City. Id. at 57-58. The appellant
was instructed to notify the agency of his acceptance of the assignment, in
writing, within 10 days of the notice and that his failure to accept the
reassignment could result in separation. Id. The agency never received written
notification of his decision. Id. at 48.
On April 11, 2017, the Deputy Director issued the appellant a notice of
proposed removal. IAF, Tab 5 at 53-55. The appellant did not respond. By letter
dated May 11, 2017, the Senior Deputy Comptroller of the Currency notified the
appellant of his decision to remove him, effective May 13, 2017, based on his
failure to accept a directed geographic reassignment.1 Id. at 48-51.
This appeal followed. IAF, Tab 1. In his pleadings, the appellant
identified numerous “affirmative defenses,” which included both affirmative
defenses for purposes of 5 U.S.C. § 7701(c)(2) and other challenges to the
1 The appellant retired on May 13, 2017. IAF, Tab 5 at 46. It is well established,
however, that the Board does not lose jurisdiction over a removal appeal when the
effective dates of the removal and the retirement are the same. 5 U.S.C. § 7701(j);
Mays v. Department of Transportation , 27 F.3d 1577, 1579-81 (Fed. Cir. 1994). On the
initial appeal form, the appellant checked the box indicating that he was contesting an
“involuntary retirement,” IAF, Tab 1 at 3, but he subsequently clarified that he intended
to appeal his removal, IAF, Tab 7 at 1. 3
legitimacy of the agency’s reasons for the reassignment. IAF, Tab 14 at 5 -100;
IAF, Tab 54 at 16-107. His affirmative defenses included (1) harmful procedural
error2 and denial of due process;3 (2) discrimination based on age,4 race, color,
sex, and national origin;5 (3) retaliation for equal employment opportunity (EEO)
activity,6 protected disclosures under 5 U.S.C. § 2302(b)(8)(A),7 and protected
activity under 5 U.S.C. § 2302(b)(9)(D);8 and (4) various other prohibited
personnel practices, including violations of section 2302(b)(2), (4), (6), and (12).9
The administrative judge advised the appellant of his burden of proof with respect
to his claims of harmful procedural error and discrimination based on age, race,
color, sex, religion, and national origin. IAF, Tabs 8, 46. However, the
administrative judge did not provide similar guidance concerning the remainder
of the affirmative defenses. The appellant declined a hearing. IAF, Tab 1 at 2.
Based on her review of the written record, the administrative judge
sustained the removal action. IAF, Tab 60, Initial Decision (ID). She first
determined that the agency established its prima facie case by setting forth
legitimate management reasons for the reassignment and showing that the
appellant received adequate notice of the reassignment and refused to accept it.
ID at 6-9. She further found that the appellant failed to rebut the agency’s case
by demonstrating that the reassignment had no solid or substantial basis in
personnel practice or principle. ID at 9-19. In the process, she also found that
the appellant failed to establish his affirmative defenses for purposes of 5 U.S.C.
2 IAF, Tab 54 at 42-72.
3 IAF, Tab 14 at 64-66.
4 IAF, Tab 54 at 47, 83-94, 106; IAF, Tab 14 at 37-51.
5 IAF, Tab 54 at 94-105; IAF, Tab 14 at 10-27.
6 IAF, Tab 54 at 53-54, 72-83, 106-07; IAF, Tab 14 at 28-37.
7 IAF, Tab 54 at 107-08.
8 IAF, Tab 54 at 106-07.
9 IAF, Tab 54 at 108-12.4
§ 7701(c)(2). ID at 9 n.4. Finally, the administrative judge concluded that the
penalty of removal is reasonable and promotes the efficiency of the service. ID
at 19-20.
On petition for review, the appellant again argues that the agency
improperly imposed a retroactive term limit without a solid or substantial basis in
personnel practice or principle, and reiterates his claims that the agency
committed harmful procedural error; discriminated against him on the basis of
age, race, color, sex, and national origin; and committed additional prohibited
personnel practices.10 Petition for Review (PFR) File, Tab 1. The agency has
filed a response, to which the appellant has replied.11 PFR File, Tabs 3-4.
ANALYSIS
Federal agencies are authorized by regulation to reassign their employees.
5 C.F.R. § 335.102. It is well established that agencies have wide discretion in
exercising that authority. Frey v. Department of Labor , 359 F.3d 1355, 1360
(Fed. Cir. 2004). Federal employees who refuse a geographical assignment may
be removed. Id. The Board’s review of a directed assignment action is to assure
that this otherwise legitimate management tool is not used for illegitimate
10 The appellant further contends that the administrative judge erred in denying the
following motions: (1) his September 25, 2017 motion to compel production relating to
Document Requests No. 7 (benchmark data regarding elimination of enhanced
relocation benefits) and No. 10 (documents relating to management succession); and
(2) his July 6, 2018 motion for leave to file a response to what he asserted was new
evidence and argument contained in an agency pleading. PFR File, Tab 1 at 28-29; see
IAF, Tab 13 at 33-36, Tab 25 at 5, Tabs 55 -57. We discern no abuse of discretion in the
administrative judge’s rulings in these matters. See Wagner v. Environmental
Protection Agency , 54 M.S.P.R. 447, 452 (1992) (holding that the Board will not
reverse an administrative judge’s rulings on discovery matters absent an abuse of
discretion), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table).
11 The appellant’s reply includes a motion for leave to submit new evidence and
argument. PFR File, Tab 4 at 4, 13-16. The motion is now moot, as the record will
reopen on remand. The appellant’s motion to amend his reply to correct a typographical
error is granted. PFR File, Tab 7.5
reasons. Cooke v. U.S. Postal Service , 67 M.S.P.R. 401, 406 (1995), aff’d,
73 F.3d 380 (Fed. Cir. 1995) (Table).
The Board has adopted a two-step approach for deciding an appeal of a
removal action based on refusal to accept a directed reassignment. To prevail in
such a case, the agency must prove by a preponderance of the evidence that the
removal will promote the efficiency of the service, which requires a showing that
the agency’s decision was a bona fide determination based on legitimate
management considerations in the interest of the service. Ketterer v. Department
of Agriculture, 2 M.S.P.R. 294, 298 (1980). As part of its initial burden, the
agency must come forward with evidence showing a legitimate management
reason for the reassignment. Id. at 299. Together with evidence that the
appellant received adequate notice of the reassignment and refused to accept it,
this is ordinarily sufficient to establish a prima facie case. Id.
Once the agency has made a prima facie case, the burden of going forward
with rebuttal evidence shifts to the appellant, although the burden of persuasion
remains with the agency. Id.; see Umshler v. Department of the Interior ,
44 M.S.P.R. 628, 630 (1990) (citing Ketterer). If the appellant can demonstrate
that the reassignment had no solid or substantial basis in personnel practice or
principle, the Board may conclude that it was not a valid discretionary
management determination, but was instead either an improper effort to pressure
the appellant to retire, or at least an arbitrary or capricious adverse action.
Umshler, 44 M.S.P.R. at 630; see Frey, 359 F.3d at 1360 (endorsing the
Ketterer/Umshler framework); see also Cobert v. Miller , 800 F.3d 1340, 1349
(Fed. Cir. 2015) (clarifying that the Board is bound by Frey and that the Ketterer/
Umshler framework remains the law of the circuit).
We agree with the administrative judge that the agency met its initial
burden of providing evidence showing a legitimate management reason for the
appellant’s reassignment, namely, the general rotation policy recommended by
the peer review team and implemented by PPM 5000-42. Moreover, it is6
undisputed that the appellant received notice of his reassignment and refused to
accept it. Thus, the agency established its prima facie case, and we proceed to
the question of whether the appellant has produced rebuttal evidence
demonstrating that his reassignment had no solid or substantial basis in personnel
practice. See Umshler, 44 M.S.P.R. at 630.
The appellant argues, as he did below, that the reassignment had no solid or
substantial basis in personnel practice because the agency lacked the authority to
retroactively convert his permanent appointment to a term appointment.
However, there is nothing in the record to suggest that the appellant’s
appointment ceased to be permanent; rather, it was his rotational assignment that
was term-limited. Moreover, as the administrative judge observed, the absence of
a term limit agreement, mobility agreement, or rotational agreement does not
constrain the agency’s authority under 5 C.F.R. § 335.102 to reassign or transfer
employees. See Wieser v. Department of the Army , 280 F. App’x 959, 961 (Fed.
Cir. 2008) (stating that “the agency’s authority to reassign its employees is based
on regulations that do not make the agency’s power to transfer and employee
dependent on the employee’s execution of a mobility agreement”); see also id.
at 962 (stating that “the agency does not obtain its right to transfer from a
particular employee’s consent, nor it is it denied the right to transfer a particular
employee because that employee has not previously given such consent or been
specifically notified of the possibility of a transfer at some point in the future”).12
Accordingly, we find no merit to the appellant’s contention that the agency acted
outside its authority when it reassigned him.
12 The Board may follow nonprecedential Federal Circuit decisions when it finds the
court’s reasoning persuasive, as we do here. See, e.g., Morris v. Department of the
Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016). The appellant argues that Wieser is
distinguishable because the agency in that case was restructuring its operations due to a
reduced volume of work at the employee’s location, whereas the workload at the
Syracuse office had not decreased. This is a distinction without a difference, however,
as the agency’s reassignment authority under 5 C.F.R. § 335.102 is not contingent on
office workload. 7
Another way for an appellant to successfully rebut the agency’s prima facie
case is to establish that the reassignment constituted a prohibited personnel
practice, and was therefore not based on a legitimate management reason. See
Richard v. Department of Defense , 66 M.S.P.R. 146, 158-59 (1995) (remanding
for a determination of whether the appellant’s evidence regarding her allegation
of EEO retaliation was sufficient to cast doubts on the bona fides of the
reassignment action); Umshler, 44 M.S.P.R. at 634 (vacating and remanding an
initial decision sustaining a removal for failure to accept a directed reassignment
where, among other things, the administrative judge failed to address the
appellant’s assertions that his reassignment constituted a prohibited personnel
practice under 5 U.S.C. § 2302(b)(8)(A) and (b)(10)); Craighead v. Department
of Agriculture, 6 M.S.P.R. 159, 161-62 (1981) (considering the appellant’s claim
of marital status discrimination in violation of 5 U.S.C. § 2302(b)(1) in
determining whether the agency-directed reassignment was based on legitimate
management reasons). The administrative judge was thus correct in considering
the appellant’s prohibited personnel practice claims both as part of his rebuttal
and as affirmative defenses under 5 U.S.C. § 7701(c)(2). ID at 9 n.4; see
Craighead, 6 M.S.P.R. at 161-62.
Here, the administrative judge considered the appellant’s allegations of
discrimination and EEO reprisal, which fall within the scope of 5 U.S.C.
§ 2302(b)(1) and (b)(9)(A). However, she did not fully address the appellant’s
remaining prohibited personnel practice claims. While she stated in general terms
that the appellant “failed to establish that the agency violated merit principles and
committed prohibited personnel practices,” ID at 14-15, she did not identify,
much less analyze, the appellant’s specific allegations that the agency violated
5 U.S.C. § 2302(b)(2), (4), (6), (8)(A), (9)(D), and (12).13
13 The administrative judge noted that the appellant “appeared to be raising a
whistleblower retaliation claim,” which could refer to his contention that the agency
violated section 2302(b)(8)(A) and/or (9)(D), but she summarily rejected the claim
without identifying his allegations or the statutory provisions at issue. ID at 14. She8
An initial decision must identify all material issues of fact and law,
summarize the evidence, resolve issues of credibility, and include the
administrative judge’s conclusions of law and her legal reasoning, as well as the
authorities on which that reasoning rests . Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980). Because the administrative judge did
not decide all of the prohibited personnel practice claims at issue, or notify the
appellant of what he had to do in order to establish those claims, we find further
proceedings are needed to determine whether the appellant has successfully
rebutted the agency’s prima facie case.14 See Umshler, 44 M.S.P.R. at 634.
On remand, the administrative judge should advise the appellant of his
burden of proof regarding his prohibited personnel practice claims under 5 U.S.C.
§ 2302(b)(2), (4), (6), (8)(A), (9)(D), and (12), and, if necessary, provide an
opportunity for further development of the record as to those claims. In addition,
the administrative judge should reconsider the appellant’s claims of
discrimination and reprisal for EEO activity in light of the Board’s intervening
decision in Pridgen v. Office of Management and Budget , 2022 MSPB 31,
adopting her previous findings as appropriate. The administrative judge should
then issue a new initial decision, consistent with this Order, that includes findings
on all material issues raised by the appellant, as well as a finding as to whether all
of the circumstances identified by the appellant, considered together, rebut the
agency’s prima facie case. See Umshler, 44 M.S.P.R. at 635. The administrative
judge may adopt her original findings to the extent they are consistent with the
additional evidence and argument considered on remand.
observed in a footnote that the Board’s jurisdiction over individual right of action (IRA)
appeals does not extend to claims of reprisal for protected activity under
section 2302(b)(9)(A)(ii), see ID at 14 n.6, but, as the appellant’s removal is an
otherwise appealable action, the issue of IRA jurisdiction does not arise in this appeal.
14 We discern no error in the administrative judge’s findings regarding the appellant’s
claims of harmful error and denial of due process. 9
ORDER
For the reasons discussed above, we remand this case to the field office for
further adjudication in accordance with this remand order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.10 | Bailey_Daniel_NY-0752-17-0162-I-1__Remand_Order.pdf | 2024-01-03 | DANIEL BAILEY v. DEPARTMENT OF THE TREASURY, MSPB Docket No. NY-0752-17-0162-I-1, January 3, 2024 | NY-0752-17-0162-I-1 | NP |
2,572 | https://www.mspb.gov/decisions/nonprecedential/Watson_Robert_PH-315H-22-0306-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT WATSON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-315H-22-0306-I-1
DATE: January 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Renn Fowler , Silver Spring, Maryland, for the appellant.
Jeffrey P. Meineke , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
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.2 Except as expressly
MODIFIED to clarify that the appellant has a property interest in continued
employment and is entitled to constitutional due process, we AFFIRM the initial
decision.
On review, the agency does not dispute that the appellant meets the
statutory definition of an “employee” under 5 U.S.C. § 7511(a)(1)(A)(ii), but
argues that, unlike the statute at issue in Cleveland Board of Education v.
Loudermill, 470 U.S. 532 (1985), 5 U.S.C. § 7511 does not confer a property
interest in continued employment. As set forth below, we agree with the
appellant that the agency’s arguments on review disregard the plain language of
the statute as well as relevant precedent from the U.S. Court of Appeals for the
Federal Circuit.3
2 We exercise our discretion to refrain from dismissing the agency’s petition for failure
to certify its compliance with the interim relief order. See 5 C.F.R. § 1201.116(e)
(providing that failure to provide the certification of compliance required under
5 C.F.R. § 1201.116(a) “may” result in the dismissal of the agency’s petition or cross
petition for review).
3 In pertinent part, the agency’s petition for review fails to cite controlling Federal
Circuit precedent relating to due process, including the court’s decisions in Ward v.
U.S. Postal Service , 634 F.3d 1274, 1282-83 (Fed. Cir. 2011) and Stone v. Federal
Deposit Insurance Corporation , 179 F.3d 1368, 1375 (Fed. Cir. 1999). We condemn
the agency’s failure to apply controlling precedent, especially given the evidence
showing that the appellant was an employee under 5 U.S.C. section 7511. See Williams
v. Equal Employment Opportunity Commission , 75 M.S.P.R. 144, 149 (1997)
(condemning the agency’s efforts to seek dismissal of an appeal on timeliness grounds
when it possessed evidence showing that the appeal was timely filed).2
Contrary to the agency’s arguments on review, we find the appellant is
entitled to the minimum due process described in Loudermill. In Loudermill, the
Court found that the respondents, who were public employees, had a property
interest in continued employment under Ohio law, which provided that “classified
civil service employees” were entitled to keep their positions “during good
behavior and efficient service” and could not be dismissed except for
“misfeasance, or nonfeasance in office.” Id. at 538-59 (internal quotations
omitted). The Court concluded that, under the Due Process Clause, the
respondents could not be deprived of that property interest without
constitutionally adequate procedures. Id. at 541. After weighing the private and
public interests at stake, the Court determined that due process required prior
notice and an opportunity to respond to the proposed termination. Id. at 546.
The statutory Federal employment scheme similarly provides that an
agency may take an adverse action against an “employee,” as defined at 5 U.S.C.
§ 7511, only for “unacceptable performance,” pursuant to 5 U.S.C. § 4303, or
“for such cause as will promote the efficiency of the service,” pursuant to
5 U.S.C. § 7513. Like the statute at issue in Loudermill, these provisions confer a
property interest in continued employment and entitle the employee to minimum
due process. Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368,
1375 (Fed. Cir. 1999).
It is undisputed that the appellant meets the definition of an “employee”
under 5 U.S.C. § 7511(a)(1)(A)(ii), i.e., “an individual in the competitive
service . . . who has completed 1 year of current continuous service under other
than a temporary appointment limited to 1 year or less.” See McCormick v.
Department of the Air Force , 307 F.3d 1339, 1342-43 (Fed. Cir. 2002) (holding
that an individual who is excluded from “employee” status under section 7511(a)
(1)(A)(i) is nonetheless an “employee” if the individual meets the definition
under section 7511(a)(1)(A)(ii)); Schibik v. Department of Veterans Affairs , 98
M.S.P.R. 591, ¶ 8 (2005) (following McCormick). Consequently, he was entitled3
to the minimum due process described in Loudermill, i.e., prior notice and
an opportunity to respond to the agency’s charges. Schibik, 98 M.S.P.R. 591,
¶ 10. Because the agency denied the appellant minimum due process, the removal
action must be reversed. Id.
ORDER
We ORDER the agency to cancel the removal and retroactively restore the
appellant effective July 14, 2022. See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
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 not4
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE 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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the7
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.10
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. | Watson_Robert_PH-315H-22-0306-I-1__Final_Order.pdf | 2024-01-03 | ROBERT WATSON v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-315H-22-0306-I-1, January 3, 2024 | PH-315H-22-0306-I-1 | NP |
2,573 | https://www.mspb.gov/decisions/nonprecedential/Miles_Regina_L_DC-1221-16-0250-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REGINA LORRAINE MILES,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DC-1221-16-0250-W-1
DATE: January 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Regina Lorraine Miles , Oxon Hill, Maryland, pro se.
Melanie Russell , 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. The
appellant contends that the administrative judge erred in finding that she failed to
meet her jurisdictional burden. Petition for Review File, Tab 1. Generally, we
grant petitions for review such as this one only in the following circumstances:
the initial decision contains erroneous findings of material fact; the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
decision is based on an erroneous interpretation of statute or regulation or the
erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Miles_Regina_L_DC-1221-16-0250-W-1_Final_Order.pdf | 2024-01-02 | REGINA LORRAINE MILES v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-1221-16-0250-W-1, January 2, 2024 | DC-1221-16-0250-W-1 | NP |
2,574 | https://www.mspb.gov/decisions/nonprecedential/Blackwell_Eunice_M_DC-831M-21-0206-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EUNICE MAE BLACKWELL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-831M-21-0206-I-1
DATE: January 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eunice Mae Blackwell , Henrico, Virginia, 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 appeal of an Office of Personnel Management (OPM) final decision
as untimely filed without a showing of good cause for her filing delay.
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
clarify and supplement the administrative judge’s analysis regarding whether the
appellant established good cause for her filing delay, we AFFIRM the initial
decision.
BACKGROUND
In a final decision dated April 1, 2020, OPM denied the appellant’s
application for a retirement annuity because she was no longer employed with the
Federal Government and had received a refund of her retirement contributions on
October 27, 2003. Initial Appeal File (IAF), Tab 6 at 9. OPM informed the
appellant that she had 30 calendar days after the date of the decision, or 30 days
after her receipt of the decision, whichever is later, to file her appeal with the
Board. Id. at 10. OPM indicated that it enclosed a package that contained Board
regulations, Board office locations, and a Board application form with filing
instructions. Id.
According to the appellant, she sent a letter to OPM’s Retirement Services
10 days after receiving the decision. IAF, Tab 8 at 3. She asserted that she
contacted OPM multiple times for status updates and that OPM never instructed
her that she had to file her appeal with the Board. Id. at 3-5. She explained that,2
after reviewing her documents, she discovered that she had sent her appeal to the
incorrect address. Id. at 4-5.
On January 29, 2021, the appellant filed an appeal with the Board, claiming
that she never received a refund of her retirement contributions. IAF, Tab 1 at 3,
5-6. OPM moved to dismiss the appeal as untimely filed. IAF, Tab 6 at 4-6. The
administrative judge issued a timeliness order informing the appellant that her
appeal may be untimely filed and ordering her to file evidence and argument
showing that the appeal was timely filed or that good cause existed for the delay.
IAF, Tab 7. In response, the appellant asserted that she received OPM’s final
decision on April 1, 2020, but that she mistakenly filed her appeal with OPM on
April 10, 2020. IAF, Tab 8 at 3-5.
Without conducting a hearing, the administrative judge dismissed the
appeal as untimely filed without a showing of good cause for the filing delay.
IAF, Tab 9, Initial Decision (ID) at 1, 4. In so finding, the administrative judge
noted that OPM’s final decision put the appellant on clear and unmistakable
notice of the Board’s contact information and the deadline for her appeal, but the
appellant did not mail her appeal to the Board until January 29, 2021,
approximately 268 days late. ID at 3-4. The administrative judge acknowledged
the appellant’s assertion that she mistakenly filed her appeal with OPM rather
than the Board, ID at 2, but she found that the appellant’s allegation did not rise
to the level of good cause for her delay and did not evidence an attempt to
exercise due diligence in filing her appeal, ID at 4.
The appellant filed a petition for review, asserting that her appeal was
timely mailed to the Board’s Washington Regional Office. Petition for Review
(PFR) File, Tab 1 at 4, 6. OPM filed a response but did not specifically dispute
the appellant’s assertions on review. PFR File, Tab 3. The Office of the Clerk of
the Board issued a show cause order to the parties instructing them to produce
relevant evidence regarding the appellant’s alleged submission of her appeal to
OPM, such as a tracking number, a certified mail receipt, or an affidavit or a3
sworn statement. PFR File, Tab 5 at 3. The Clerk’s Office explained that any
affidavit or statement provided in response to the order must provide specific
details concerning the appellant’s mailing. Id. OPM stated that it had no record
of receipt of the appellant’s April 10, 2010 letter, PFR File, Tab 6 at 4, and the
appellant did not respond.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant bears the burden of proof with regard to timeliness, which
she must establish by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(B). An
appeal of an agency decision must be filed no later than 30 days after the
effective date of the action being appealed, or 30 days after the date the agency’s
decision is received, whichever is later. 5 C.F.R. § 1201.22(b). If an appellant
fails to timely submit her appeal, it will be dismissed as untimely filed absent a
showing of good cause for the delay in filing. 5 C.F.R. § 1201.22(c).
To establish good cause for the untimely filing of an appeal, a party must
show that she exercised due diligence or ordinary prudence under the particular
circumstances of the case. Maggard v. Office of Personnel Management ,
102 M.S.P.R. 75, ¶ 8 (2006). OPM’s final decision instructed the appellant that
she should file her appeal with the Board, and the Board generally holds that an
appellant’s failure to follow explicit filing instructions does not constitute good
cause for any ensuing delay. Id., ¶ 9. However, the Board has recognized an
exception to this rule in cases when appellants have timely but mistakenly sent
appeals of OPM’s final decisions to OPM rather than to the Board. Id. In such
cases, the Board has found good cause for the untimely filing when the following
conditions have been met: (1) the delay was caused in part by the appellant’s
failure to follow the directions set forth in the final decision and in part by
OPM’s failure to direct an otherwise timely appeal to the Board; (2) the appellant4
clearly intended to seek further review of the final decision; (3) the appellant was
pro se; and (4) there was no showing of prejudice to the agency.1 Id.
Below, the appellant stated that she received OPM’s final decision on
April 1, 2020 and that she mistakenly filed her appeal with OPM on April 10,
2020. IAF, Tab 8 at 4. However, the appellant asserts on review that her appeal
was not misdirected to OPM and that she timely mailed it to the Board’s
Washington Regional Office. PFR File, Tab 1 at 4, 6. As discussed below, we
find that the appellant failed to establish that she timely filed her appeal with the
Board’s Washington Regional Office.
Although the appellant claims on review that her appeal was timely mailed
to the Board’s Washington Regional Office, the record reflects that the office
received her e-filed appeal well beyond the designated deadline.2 Because the
appellant asserted that she received OPM’s final decision on April 1, 2020, IAF,
Tab 8 at 4, her appeal must have been filed with the Board by May 1, 2020. The
appellant did not e-file her appeal until January 29, 2021. IAF, Tab 1; see
5 C.F.R. § 1201.4(l) (stating that the date of a filing by e-filing is the date of
electronic submission). Thus, the administrative judge properly found that her
appeal was untimely filed by 268 days, or approximately 9 months.3 ID at 4.
1 An appellant must receive proper notice on the timeliness issue and a full and fair
opportunity to litigate it. Burroughs v. Department of the Army , 116 M.S.P.R. 292, ¶ 22
(2011). Here, the administrative judge did not provide the appellant with instructions
regarding the exception the Board applies when an appellant timely but mistakenly files
an appeal with OPM. IAF, Tab 7; ID. However, the Acting Clerk’s order put the
appellant on notice of what she must do to address that issue, thus affording her with
the opportunity to meet her burden on review. PFR File, Tab 5 at 2-3.
2 As set forth above, the appellant appears to allege on review that she mailed her
alleged April 10, 2020 pleading to the Board’s Washington Regional Office rather than
to OPM. PFR File, Tab 1 at 4, 6. However, the appellant’s vague and conclusory
allegation that she mailed a pleading to the Washington Regional Office on that date
falls short of the standard of evidence required to show that she timely filed her appeal.
See Gaydon v. U.S. Postal Service, 62 M.S.P.R. 198, 202 -03 (1994).
3 Along with her petition for review, the appellant has submitted the following
documents: photographs of a list of addresses for the Board’s regional and field
offices, with the address of the Washington Regional Office circled; a photograph of an5
The administrative judge found that the appellant failed to establish good
cause for her filing delay, but the administrative judge did not explicitly consider
whether the appellant timely but mistakenly filed an appeal of OPM’s final
decision with OPM rather than with the Board. ID at 4; see Maggard,
102 M.S.P.R. 75, ¶ 8. We therefore consider this issue here, and modify the
initial decision’s good cause analysis accordingly.
We find that the appellant’s allegations both below and on review fall short
of establishing by preponderant evidence that her appeal was timely filed with
OPM. The appellant asserted that she mailed her appeal to an OPM Customer
Service Specialist on April 10, 2020, IAF, Tab 8 at 4, and she referenced her
April 10, 2020 letter in a January 8, 2021 letter and a January 11, 2021 email to
OPM, but she offered no pertinent details concerning the alleged April 10, 2020
filing, IAF, Tab 8 at 8, 11-12; see Gaydon v. U.S. Postal Service, 62 M.S.P.R.
198, 202-03 (1994) (finding that the appellant’s mere assertion that he mailed his
pleading on a particular date, without any specific details concerning the mailing,
was insufficient to establish that the pleading was timely filed). The appellant
failed to submit a tracking number or a certified mail receipt regarding the
alleged April 10, 2020 mailing, and has otherwise failed to present specific,
credible evidence that any such pleading was actually placed in the mail stream.
See Gaydon, 62 M.S.P.R. at 203 (stating that, when an affidavit does not present
specific, credible evidence that a pleading was actually placed in the mail stream,
it follows that there is no basis for finding that the pleading was timely filed).
Because there was a question as to whether the appellant timely but mistakenly
illegible letter signed by an OPM customer service specialist with the appellant’s
handwritten notations; and a screenshot of the appellant’s call log from December 2020
to March 2021. PFR File, Tab 1 at 7-10. The appellant suggests that this evidence
supports her assertion that she mailed a timely appeal to the Board’s Washington
Regional Office. Id. at 4. The Board will not grant a petition for review based on new
evidence absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision. Russo v. Veterans Administration , 3 M.S.P.R. 345, 349
(1980). These documents do not establish that her appeal was timely filed with the
Board’s Washington Regional Office and thus do not provide a basis for review. 6
filed her appeal with OPM, the Clerk’s Office issued a show cause order to the
parties instructing them to produce all evidence they possess regarding that
matter. PFR File, Tab 5. The appellant did not respond to the show cause order.
In its response, OPM clarified that it had no record of receiving the appellant’s
April 10, 2020 letter. PFR File, Tab 6 at 4. Thus, we find that the appellant has
failed to show good cause for a waiver of the filing deadline based on the
exception applicable to cases in which an appellant has timely but mistakenly
filed an appeal of an OPM final decision with OPM rather than with the Board.
Cf. Mohammed v. Office of Personnel Management , 108 M.S.P.R. 609, ¶¶ 6,
11-12 (2008) (finding that good cause existed for the appellant’s untimely appeal
that was misfiled with OPM when she asserted that she mailed her appeal to OPM
within the filing period and submitted a postal receipt documenting her mailing to
OPM); House v. Office of Personnel Management, 44 M.S.P.R. 161, 165 (1990)
(finding that good cause existed for the appellant’s untimely appeal that was
misfiled with OPM when he asserted that he sent his appeal to OPM within the
filing period and submitted a letter from OPM referencing its receipt of his
appeal).
In light of the above, we agree with the administrative judge’s finding that
the appellant failed to establish good cause for her untimely filing under the
circumstances of this case. Accordingly, we find that her appeal was untimely
filed without good cause shown for the delay. See Bell v. Department of
Homeland Security, 112 M.S.P.R. 33, ¶ 8 (2009) (dismissing a pleading as
untimely filed because a pro se appellant failed to respond to the Clerk’s order on
timeliness or otherwise demonstrate good cause for the delay). 7
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.8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any9
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s10
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.12 | Blackwell_Eunice_M_DC-831M-21-0206-I-1_Final_Order.pdf | 2024-01-02 | EUNICE MAE BLACKWELL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-831M-21-0206-I-1, January 2, 2024 | DC-831M-21-0206-I-1 | NP |
2,575 | https://www.mspb.gov/decisions/nonprecedential/Black_Jennifer_C_DC-1221-21-0644-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JENNIFER C. BLACK,
Appellant,
v.
SMALL BUSINESS
ADMINISTRATION,
Agency.DOCKET NUMBER
DC-1221-21-0644-W-1
DATE: January 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
P
aul V. Bennett , Esquire, Annapolis, Maryland, for the appellant.
Andrew Dylan Howell , Esquire, Claudine Landry , Esquire, and Jeanne
Louise Heiser , 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 individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
VACATE the initial decision , and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant, a former GS-13 Underwriting Marketing Specialist,2 filed a
complaint with the Office of Special Counsel (OSC) alleging that the agency
retaliated against her for filing equal employment opportunity (EEO) and Office
of Inspector General (OIG) complaints. Initial Appeal File (IAF), Tab 9
at 14-30.3 After OSC issued its close-out letter informing the appellant that it had
terminated its inquiry into her complaint, the appellant filed a Board appeal. IAF,
Tab 1. The administrative judge issued a jurisdiction order informing the
appellant of the applicable jurisdictional standard and affording her an
opportunity to present evidence and argument establishing Board jurisdiction over
her appeal.4 IAF, Tab 3.
The appellant responded to the administrative judge’s order, alleging that
she first went to an agency EEO counselor in June 2019 and disclosed that her
supervisors were abusing their authority, which led them to retaliate against her
by subjecting her to a hostile work environment, lowering her October 2019
performance appraisal, and not selecting her for a promotion in March 2020.
2 The appellant resigned from her position effective June 18, 2021. IAF, Tab 9
at 228-29.
3 In its preliminary determination letter, OSC found that the appellant alleged that she
filed two EEO complaints, in June 2019 and October 2020, a reasonable accommodation
request, and “two additional complaints in March and May 2021, although it is unclear
what type of complaints these are.” IAF, Tab 1 at 11. The appellant did not raise the
October 2020 EEO complaint or the reasonable accommodation request before the
Board, and thus, we need not consider these allegations. IAF, Tab 9 at 7-10, Tab 16
at 6-10; Petition for Review (PFR) File, Tab 1 at 12 (identifying the dates of the
appellant’s protected activities as those that correspond to her first EEO complaint and
the three OIG complaints, i.e., June 2019, May 2020, March 2021, and May 2021).
4 The administrative judge issued a second jurisdictional order, requesting that the
appellant provide further clarification on her claim. IAF, Tab 13. The appellant filed a
response to the order, reiterating the information contained in her first response.
Compare IAF, Tab 16 at 4-13, with IAF, Tab 9 at 4-12. 2
IAF, Tab 9 at 7-9, 23-24. The appellant further alleged that, because her
concerns were not addressed by the EEO process, she filed OIG complaints in
May 2020, March 2021, and May 2021, and her supervisors continued to retaliate
against her by subjecting her to a hostile work environment, issuing her a lowered
performance appraisal in October 2020, issuing her a letter of reprimand in
December 2020, placing her on a performance improvement plan (PIP) in March
2021, and denying her a detail in April 2021. Id. at 9-12, 24-25.
After reviewing the appellant’s submissions, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 18, Initial Decision (ID). First, he found that the Board lacked jurisdiction
over the appellant’s disclosures and activities involving EEO-related matters. ID
at 5-6. Then, the administrative judge determined that the appellant failed to
exhaust her administrative remedies with respect to her May 2020 OIG complaint
because she failed to provide details regarding the contents of her complaint. ID
at 6-7. Similarly, he found that the appellant failed to exhaust her administrative
remedies with respect to the March 2021 and May 2021 OIG complaints because
OSC had stated in its preliminary determination letter that it was “unclear what
type of complaints [the March 2021 and May 2021 complaints] were,” and thus,
he determined that the appellant must not have informed OSC that they were OIG
complaints.5 ID at 7. However, the administrative judge also found that, even if
5 In its preliminary determination letter, OSC stated that the appellant alleged that the
agency violated both the Health Insurance Portability and Accountability Act (HIPAA)
and 5 U.S.C. § 2302(b)(12), which OSC analyzed as a potential violation of 5 U.S.C.
§ 2302(b)(12) and (b)(14). IAF, Tab 1 at 11, 13. The administrative judge, using
OSC’s characterization of the appellant’s claims, found that the Board does not have
jurisdiction over violations of 5 U.S.C. § 2302(b)(14). ID at 7. However, in her
responses to the administrative judge’s orders and in her petition for review, the
appellant claims that she reported the HIPAA violation in her March 2021 OIG
complaint. IAF, Tab 9 at 9-10, Tab 16 at 9; PFR File, Tab 1 at 9. Thus, it does not
appear that the appellant alleged a separate violation of 5 U.S.C. § 2302(b)(14) but was
instead explaining the contents of her March 2021 OIG complaint. Nevertheless, to the
extent that the appellant does argue that a HIPAA violation constitutes an independent
basis for Board jurisdiction, we agree with the administrative judge that it does not. ID
at 7.3
the appellant met the exhaustion requirement, she failed to establish that she
made a protected disclosure or engaged in a protected activity that was a
contributing factor in the personnel actions. ID at 8-12. Thus, he dismissed the
appeal for lack of jurisdiction. ID at 12-13.
The appellant has filed a petition for review,6 asserting that she made
protected disclosures and/or engaged in protected activities by filing her EEO and
OIG complaints and that her disclosures and activities were a contributing factor
in the agency’s creation of a hostile work environment and its decision to lower
her performance appraisal in October 2019 and October 2020, deny her a
promotion in March 2020, issue her a letter of reprimand in December 2020,
place her on PIP in March 2021, and deny her a detail in April 2021.7 Petition for
Review (PFR) File, Tab 1 at 11-14. The agency has filed a response in opposition
to the petition for review. PFR File, Tab 3.
6 The appellant attached an email to her petition for review, which linked several audio
recordings of calls between her and her supervisors which allegedly substantiate her
claims of hostile work environment. PFR File, Tab 1 at 15-18. As we are remanding
this matter to the administrative judge for a hearing on the merits, the administrative
judge will have the opportunity to review all the evidence submitted by the parties and
weigh its relevancy.
7 To the extent that the appellant argues that she was forced to resign due to
whistleblower reprisal, the appellant failed to prove she exhausted this allegation with
OSC. PFR File, Tab 1 at 9, 10, 12. The appellant spoke to OSC after it issued the
preliminary determination letter, stating in part that she had resigned from her position,
and OSC informed her that she could submit additional information and documents.
IAF, Tab 1 at 15. Approximately 1 month later, OSC issued its close-out letter to the
appellant, notifying her that since it had not received any further information from her,
it would move forward with closing out her matter. Id. The appellant does not allege
that she informed OSC during this conversation that she intended to amend her case to
include a claim of constructive discharge. The Board has recently clarified the
substantive requirements of exhaustion, specifically, that requirements are met when an
appellant has provided OSC with sufficient basis to pursue an investigation. Skarada v.
Department of Veterans Affairs , 2022 MSPB 17, ¶ 7; Chambers v. Department of
Homeland Security , 2022 MSPB 8, ¶¶ 10-11. We do not find that she has provided a
sufficient basis for OSC to pursue an investigation, despite being afforded an
opportunity to do so. Thus, we agree with the administrative judge that the appellant
failed to prove by preponderant evidence that she exhausted her administrative remedies
with respect to a constructive discharge claim. ID at 8. 4
DISCUSSION OF ARGUMENTS ON REVIEW
Under the Whistleblower Protection Enhancement Act of 2012, the Board
has jurisdiction over an IRA appeal if the appellant has exhausted her
administrative remedies before OSC and makes nonfrivolous allegations that
(1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302(a). Edwards v. Department of Labor , 2022 MSPB 9, ¶ 8;
Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). As
explained by the U.S. Court of Appeals for the Federal Circuit, at the
jurisdictional stage, the appellant need only assert “allegations that are not
‘vague, conclusory, or facially insufficient,’ and that the appellant ‘reasonably
believe[s]’ to be true. . . .” Hessami v. Merit Systems Protection Board , 979 F.3d
1362, 1367 (Fed. Cir. 2020) (quoting Piccolo v. Merit Systems Protection Board ,
869 F.3d 1369, 1371 (Fed. Cir. 2017)). Thus, the appellant makes a nonfrivolous
allegation if she alleges “sufficient factual matter, accepted as true, to state a
claim that is plausible on its face.” Id. at 1369.
As set forth below, we find that the appellant exhausted her administrative
remedies and made a nonfrivolous allegation that she engaged in protected
activities by filing three OIG complaints that were a contributing factor in the
agency’s decision to take certain personnel actions. However, with respect to the
appellant’s EEO-related disclosures and activities, we agree with the
administrative judge that the Board lacks jurisdiction over these claims because
EEO matters are excluded from the coverage of the whistleblower protection
statutes. ID at 5-6. 5
The appellant exhausted her administrative remedies with respect to her OIG
complaints.
Under 5 U.S.C. § 1214(a)(3), an employee is required to exhaust her
administrative remedies with OSC before seeking corrective action from the
Board in an IRA appeal. Skarada v. Department of Veterans Affairs , 2022 MSPB
17, ¶ 7. The Board has recently clarified the substantive requirements of
exhaustion. Id.; see Chambers v. Department of Homeland Security , 2022 MSPB
8, ¶¶ 10-11. The requirements are met when an appellant has provided OSC with
sufficient basis to pursue an investigation. Skarada, 2022 MSPB 17, ¶ 7. The
Board’s jurisdiction is limited to those issues that have been previously raised
with OSC. Id.
The administrative judge erred in finding that the appellant failed to
exhaust her administrative remedies. ID at 6-7. With respect to the May 2020
OIG complaint, the administrative judge found that the appellant failed to meet
the exhaustion requirement because she did not “inform OSC of the precise
grounds” of her whistleblower reprisal claim. Id. However, pursuant to the plain
language of 5 U.S.C. § 2302(b)(9)(C), an employee engages in a protected
activity when she discloses information to the OIG. There is no requirement in
the statute that the information disclosed meet the precise terms of the actions
described in 5 U.S.C. § 2302(b)(8), and thus, any disclosure to the OIG,
regardless of the nature of that disclosure, is protected. See Salerno,
123 M.S.P.R. 230, ¶ 12 (2016) (agreeing with an administrative judge that a
disclosure to OSC was protected under 5 U.S.C. § 2309(b)(9)(C)); Special
Counsel v. Hathaway , 49 M.S.P.R. 595, 612 (1991) (explaining that a disclosure
to OSC or an OIG is protected under 5 U.S.C. § 2302(b)(9)(C) even if it does not
meet the precise conditions of 5 U.S.C. § 2302(b)(8)), aff’d, 981 F.2d 1237 (Fed.
Cir. 1992), abrogated on other grounds by Special Counsel v. Santella ,
65 M.S.P.R. 452 (1994). Thus, because the appellant raised the May 2020 OIG6
complaint in her OSC complaint, she meets the exhaustion requirement. IAF,
Tab 9 at 20.
As for her March 2021 and May 2021 OIG complaints, the administrative
judge determined that the appellant failed to satisfy the exhaustion requirement
because OSC stated that it was unclear what type of complaints the appellant’s
March 2021 and May 2021 complaints were. ID at 7. However, in her OSC
complaint, the appellant indicated that she made disclosures in June 2019,
May 2020, March 2021, and May 2021 in an “EEO[] [c]omplaint [and] OIG
online complaint submission.” IAF, Tab 9 at 22. Then, later in the OSC
complaint, she referred to “OIG complaints,” indicating there was more than one
OIG complaint filed. Id. Thus, the appellant provided OSC with the dates of her
complaints and the venue in which she filed those complaints, providing OSC
with a sufficient basis to pursue an investigation. Id. Accordingly, contrary to
the administrative judge’s findings, the appellant satisfied the exhaustion
requirement for her March 2021 and May 2021 OIG complaints. ID at 7.
The appellant nonfrivolously alleged that she engaged in protected activities that
were a contributing factor in certain personnel actions.
The administrative judge found that, even if the appellant satisfied the
exhaustion requirement for her May 2020 OIG complaint, she failed to establish a
nonfrivolous allegation that she made a protected disclosure because she failed to
provide any specific evidence regarding the contents of her disclosure to the OIG.
ID at 10. However, as explained above, any disclosure of information to the OIG,
regardless of the nature of such disclosure, is protected. Thus, irrespective of the
contents of the appellant’s three OIG complaints, they are protected activities
under 5 U.S.C. § 2302(b)(9)(C).
Additionally, we find that the appellant nonfrivolously alleged that her
protected activities were a contributing factor in the agency’s personnel actions.
To satisfy the contributing factor criterion at the jurisdictional stage of an IRA
appeal, the appellant need only raise a nonfrivolous allegation that the fact of, or7
the content of, the protected activity was one factor that tended to affect the
personnel action in any way. Salerno, 123 M.S.P.R. 230, ¶ 13. One way to
establish this criterion is the knowledge/timing test, under which an employee
may nonfrivolously allege that the activity was a contributing factor in a
personnel action through circumstantial evidence, such as evidence that the
official who took the personnel action knew of the activity and that the personnel
action occurred within a period of time such that a reasonable person could
conclude that the activity was a contributing factor in the personnel action. Id.
In the initial decision, the administrative judge found that the appellant
failed to meet the contributing factor standard, in part, because she failed to
specify how the appellant’s chain of command became aware of her OIG
complaints.8 ID at 11. The nonfrivolous standard is not a stringent standard, and
only requires that the appellant allege “sufficient factual matter, accepted as true,
to state a claim that is plausible on its face.” Hessami, 979 F.3d at 1369. Here,
the appellant has alleged that her supervisory chain was “well aware” of her
whistleblowing “because they were mostly made via email and either
management acknowledged them or directly responded.” PFR File, Tab 1 at 14;
IAF, Tab 9 at 11-12, Tab 16 at 11. Furthermore, the appellant referred to one of
her OIG complaints in an appeal of a letter of reprimand, seemingly the one
issued on December 16, 2020, by her first-line supervisor. IAF, Tab 1 at 7-8,
Tab 9 at 45. Thus, we find that the appellant made a nonfrivolous allegation that
her supervisory chain knew of her protected activities.
The Board has found that personnel actions taken within approximately 1 to
2 years of the protected disclosure satisfy the knowledge/timing test. Peterson v.
8 The administrative judge found both that the appellant failed to demonstrate
contributing factor “by a preponderance of the evidence,” ID at 11, and that she “failed
to make a non[]frivolous allegation” of contributing factor, ID at 12. Thus, it is unclear
what standard the administrative judge applied, but to the extent he applied a
preponderant evidence standard, that was an error. The correct standard to apply at the
jurisdictional stage of a proceeding is a nonfrivolous allegation standard. Edwards,
2022 MSPB 9, ¶ 8; Salerno, 123 M.S.P.R. 230, ¶ 5.8
Department of Veterans Affairs , 116 M.S.P.R. 113, ¶ 16 (2011). Here, the
personnel actions occurred within 1 year of the appellant’s first OIG complaint.
IAF, Tab 9 at 9-12, 23, Tab 16 at 8-11. Accordingly, because the appellant
satisfies the knowledge/timing test, she has nonfrivolously alleged that her
protected activity was a contributing factor in the personnel actions and is entitled
to a hearing on the merits. See Salerno, 123 M.S.P.R. 230, ¶ 5.
The appellant’s claims of disclosures and activities involving EEO-related
matters are outside of the Board’s jurisdiction in an IRA appeal.
The administrative judge correctly found that the appellant’s claims of
EEO-related disclosures and activities are outside of the Board’s jurisdiction in
an IRA appeal. ID at 5-6. As the Board reaffirmed recently i n Edwards,
2022 MSPB 9, ¶¶ 13, 20, 22-23, disclosures about discrimination prohibited by
5 U.S.C. § 2302(b)(1)(A) are excluded from protection under 5 U.S.C.
§ 2302(b)(8). Thus, the appellant’s alleged disclosures to the EEO counselor are
outside of the Board’s jurisdiction. IAF, Tab 9 at 7-9, Tab 16 at 6-8. Similarly,
it is well established that the Board lacks jurisdiction over claims arising under
5 U.S.C. § 2302(b)(9)(A)(ii), including EEO complaints . Edwards, 2022 MSPB
9, ¶¶ 24-25. Thus, the appellant’s claim that the agency retaliated against her for
filing an EEO complaint by lowering her performance appraisal in October 2019
and not selecting her for a promotion in March 2020 is not within the Board’s
jurisdiction.9 IAF, Tab 9 at 7-9, 23-24, Tab 16 at 6-8.
Instructions on remand
On remand, the administrative judge shall adjudicate this appeal on the
merits, including holding the hearing requested by the appellant. He shall
9 To the extent that the appellant argues that these personnel actions were the result of
whistleblower reprisal, because she engaged in protected activity starting in May 2020,
it would be a temporal impossibility for her protected activity to have been a
contributing factor in the October 2019 performance appraisal or the March 2020
nonselection. See Sherman v. Department of Homeland Securit y, 122 M.S.P.R. 644, ¶ 8
(2015) (stating that a disclosure that occurs after the personnel action at issue was taken
cannot be considered a contributing factor in that personnel action). 9
specifically address the appellant’s allegations that her May 2020, March 2021,
and May 2021 OIG complaints were a contributing factor in subjecting the
appellant to a hostile work environment, issuing her a negative performance
appraisal in October 2020, issuing her a letter of reprimand in December 2020,
placing her on a PIP in March 2021, and denying her a detail in April 2021.10 If
the appellant proves by preponderant evidence that a protected activity was a
contributing factor in a personnel action, the administrative judge shall order
corrective action unless the agency proves by clear and convincing evidence that
it would have taken the same actions absent the protected activity.
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
10 In her OSC complaint, the appellant alleged that the agency’s personnel actions
consisted of, among other things, a hostile work environment and “negative”
performance rating. IAF, Tab 9 at 22. Thus, we find that the appellant exhausted her
administrative remedies with respect to these personnel actions, and as she also raised
them in front of the administrative judge, he should include these two alleged personnel
actions in his analysis. Id. at 9-12; IAF, Tab 16 at 8-11.10 | Black_Jennifer_C_DC-1221-21-0644-W-1_Remand_Order.pdf | 2024-01-02 | JENNIFER C. BLACK v. SMALL BUSINESS ADMINISTRATION, MSPB Docket No. DC-1221-21-0644-W-1, January 2, 2024 | DC-1221-21-0644-W-1 | NP |
2,576 | https://www.mspb.gov/decisions/nonprecedential/Amidon_Bonita_J_SF-0843-17-0578-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BONITA J. AMIDON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0843-17-0578-I-1
DATE: January 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
Alexander L. Massari , Esquire, and Steven Derryberry , Esquire, Palmdale,
California, for the appellant.
Roxann Johnson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The Office of Personnel Management (OPM) has filed a petition for review
and the appellant has filed a cross petition for review of the initial decision,
which remanded the case to OPM and vacated OPM’s reconsideration decision
denying the appellant’s application for death benefits under the Federal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Employees’ Retirement System (FERS). For the reasons discussed below, we
GRANT the petition for review, DENY the cross petition for review, VACATE
the initial decision and OPM’s reconsideration decision, and REMAND the
appeal to OPM for further adjudication in accordance with this Remand Order.
BACKGROUND
The decedent, who was a Federal civilian employee of the Department of
Defense under FERS, and his former spouse were married on June 21, 1997.
Initial Appeal File (IAF), Tab 8 at 24, 37-41. On or around February 14, 2003,
the decedent and his former spouse permanently separated. IAF, Tab 16 at 4. On
or around March 30, 2004, the decedent filed a petition for the dissolution of his
marriage to his former spouse. IAF, Tab 8 at 24, Tab 16 at 4. The decedent and
the appellant were married on September 23, 2006, in California. IAF, Tab 8
at 28, Tab 16 at 5. On February 4, 2008, the Superior Court of California, County
of Kern, issued a judgment of dissolution of the marriage between the decedent
and his former spouse. IAF, Tab 8 at 22-27. On July 4, 2014, the decedent
passed away while still in Federal civilian service. Id. at 29, 37. On or around
August 1, 2014, the appellant applied to OPM for death benefits based on the
decedent’s service. Id. at 30-36.
In a letter dated March 26, 2015, OPM requested that the appellant provide
legal documents to prove that her marriage to the decedent was valid. Id. at 21.
OPM warned the appellant that it would suspend her survivor annuity payments if
she did not provide the requested documentation. Id. The record does not
contain any response from the appellant. In an initial decision dated May 11,
2015, OPM determined that the appellant was not eligible for survivor or death
benefits under FERS because her marriage to the decedent was invalid. Id.
at 18-20. The appellant, through her attorney, requested reconsideration of
OPM’s initial decision, and she submitted additional documentation, as requested
by OPM. Id. at 7-17. She argued that she was entitled to benefits as a putative2
spouse of the decedent under California state law. Id. at 10-12, 15-17. She
further represented that her spousal benefits had been suspended. Id. at 12, 17.
In a final decision dated June 15, 2017, OPM affirmed its initial decision. Id.
at 4-5. OPM found that, at the time of the appellant’s marriage to the decedent,
he was still married to his former spouse. Id. at 4. OPM stated that it did not
recognize the appellant’s marriage to the decedent or a putative spouse claim. Id.
The appellant, through her attorney, thereafter filed the instant appeal with
the Board, and she requested a hearing. IAF, Tab 1 at 1-7. As discussed during a
prehearing conference, the parties presented oral arguments in lieu of a hearing,
and they submitted a written stipulation of facts. IAF, Tabs 14-16.
Without holding the requested hearing, the administrative judge issued an
initial decision vacating OPM’s reconsideration decision and remanding the case
to OPM. IAF, Tab 26, Initial Decision (ID) at 2, 4. Specifically, she ordered
OPM to “[t]ake necessary steps in accordance with its policies and procedures
concerning obtaining the local court’s judgment on the issue as to whether [the
appellant] is recognized as a putative spouse” and to issue a new decision. ID
at 4-5.
OPM has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The appellant has filed a response and a cross petition for review. PFR
File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
This appeal concerns the issue of whether the appellant has met her burden
of proving by preponderant evidence her entitlement to FERS death benefits
under 5 U.S.C. § 8442(b)(1). See Cheeseman v. Office of Personnel Management ,
791 F.2d 138, 140-41 (Fed. Cir. 1986) (finding that the burden of proving
entitlement to a survivor annuity is on the applicant for benefits); 5 C.F.R.
§ 1201.56(b)(2)(ii). 3
Pursuant to 5 U.S.C. § 8442(b)(1), a “widow or widower” of a Federal
employee who dies while still in duty status after completing certain minimum
lengths of service is entitled to a basic employee death benefit (BEDB) and a
survivor annuity under FERS. See Devlin v. Office of Personnel Management ,
120 M.S.P.R. 78, ¶¶ 4-5 (2013) (considering whether the estate of a current
spouse may apply for and receive a BEDB under 5 U.S.C. § 8442(b)(1)(A) on the
spouse’s behalf), aff’d, 767 F.3d 1285 (Fed. Cir. 2014); Donati v. Office of
Personnel Management , 106 M.S.P.R. 508, ¶ 10 (2007) (stating that, to be
entitled to receive a FERS survivor annuity under 5 U.S.C. § 8442(b), the
appellant must establish that she is the “widow” of the decedent); Charmack v.
Office of Personnel Management , 93 M.S.P.R. 667, ¶ 10 (2003) (observing that, if
an employee dies after completing at least 18 months of civilian service
creditable under FERS and is survived by a widow or widower, the widow or
widower is entitled to death benefits under 5 U.S.C. § 8442(b)(1)); see also
5 C.F.R. §§ 843.309-843.310 (implementing the death benefits set forth at
5 U.S.C. § 8442(b)(1)).2 The statutory definition of “widow” is “the surviving
wife of an employee, . . . , who—(A) was married to him for at least 9 months
immediately before his death; or (B) is the mother of issue by that marriage.”
5 U.S.C. § 8441(1). The statute does not further define “marriage” or “wife.”
5 U.S.C. § 8441.
2 OPM’s implementing regulations refer to the entitlements of a “current spouse,” which
OPM defines as “a living person who is married to the employee, separated employee,
or retiree at the time of the employee’s, separated employee’s or retiree’s death.”
5 C.F.R. §§ 843.102, 843.309-843.310.4
However, OPM’s implementing regulations provide the following
definition of “marriage”:
Marriage means a marriage recognized in law or equity under the
whole law of the jurisdiction with the most significant interest in the
marital status of the employee, Member, or retiree. If a jurisdiction
would recognize more than one marriage in law or equity, [OPM]
will recognize only one marriage but will defer to the local courts to
determine which marriage should be recognized.3
5 C.F.R. § 843.102; see Donati v. Office of Personnel Management , 104 M.S.P.R.
30, ¶ 5 (2006) (finding that, because there is no general Federal law of marriage,
OPM and the Board look to state domestic relations law to determine whether an
applicant for survivor benefits under 5 U.S.C. § 8442 was married to a decedent),
reversed on other grounds , 106 M.S.P.R. 508 (2007).
Here, it is undisputed that the jurisdiction with the most significant interest
in the marital status of the decedent is California. PFR File, Tab 1 at 11, Tab 3
at 13. Thus, we find that the law of California is the applicable state law to
determine whether the appellant was married to the decedent. Section 664 of the
Cal. Evid. Code states, “A ceremonial marriage is presumed to be valid.” Section
2201(a) of the Cal. Fam. Code, regarding bigamous and polygamous marriages,
states, in pertinent part, “A subsequent marriage contracted by a person during
the life of his or her former spouse, with a person other than the former spouse, is
illegal and void, unless: (1) The former marriage has been dissolved or adjudged
a nullity before the date of the subsequent marriage.” Section 2346(c) of the Cal.
3 Because Congress did not define “marriage,” and the statute is silent or ambiguous
regarding that term, the Board must determine whether OPM’s interpretation is based
on a permissible construction of the statute. See Arnold v. Office of Personnel
Management, 94 M.S.P.R. 86, ¶ 13 n.2 (2003). OPM’s interpretation of the statutes it
administers is entitled to considerable weight, especially when there are no compelling
reasons to conclude that such an interpretation is erroneous or unreasonable. Id. Here,
we find that OPM’s interpretation is based on a permissible construction of the statute
and that there are no compelling reasons to conclude that such interpretation is
erroneous or unreasonable. Cf. Money v. Office of Personnel Management , 811 F.2d
1474, 1476-78 (Fed. Cir. 1987) (deferring to OPM’s interpretation of “marriage” under
the analogous Civil Service Retirement System).5
Fam. Code authorizes a trial court to enter a judgment of dissolution of a
marriage nunc pro tunc, even though the judgment may have been previously
entered, when through mistake, negligence, or inadvertence the judgment was not
entered as soon as it could have been entered under the law if applied for. See In
re Marriage of Mallory , 64 Cal. Rptr. 2d 667, 674-76 (Cal. Ct. App. 1997)
(concluding that a trial court has the statutory power regarding the termination of
marital status to enter a judgment nunc pro tunc as of a date preceding the date of
death of the party and that, because the statute permits the trial court to act on its
own motion, a motion for entry of a judgment nunc pro tunc may be made by a
third party); Hamrick v. Hamrick , 260 P.2d 188, 189-93 (Cal. Dist. Ct. App.
1953) (affirming the lower court’s order directing that a final judgment of divorce
should be entered nunc pro tunc upon the motion of the second wife of the
deceased husband).
In addition, California law recognizes a rebuttable presumption of the
validity of the most recent marriage that may be overcome by conclusive
evidence demonstrating that no divorce terminated an earlier marriage. See
Money v. Office of Personnel Management , 811 F.2d 1474, 1478 (Fed. Cir. 1987)
(discussing the rebuttable presumption under California law); McAndrews v.
Office of Personnel Management , 39 M.S.P.R. 168, 173 (1988) (same); Bailey v.
Office of Personnel Management , 29 M.S.P.R. 670, 672 (1986) (same); Jacobs v.
Office of Personnel Management , 13 M.S.P.R. 23, 26 (1982) (same), aff’d,
707 F.2d 513 (5th Cir. 1983) (Table); see also Patillo v. Norris , 135 Cal. Rptr.
210, 214 (Cal. Ct. App. 1976) (observing that the primary basis of the rebuttable
presumption is the policy that the person entering the second marriage is not
presumed to have committed the crime of bigamy); Vargas v. Superior Court ,
88 Cal. Rptr. 281, 283 (Cal. Ct. App. 1970) (explaining the rebuttable
presumption). Further, Cal. Fam. Code § 2251(a) states, in pertinent part, “If a
determination is made that a marriage is void or voidable and the court finds that
either party or both parties believed in good faith that the marriage was valid, the6
court shall: (1) Declare the party or parties, who believed in good faith that the
marriage was valid, to have the status of a putative spouse.”
Here, in deciding to remand the case to OPM, the administrative judge
relied on Hyde v. Office of Personnel Management , 40 M.S.P.R. 204 (1989), and
Nivert v. Office of Personnel Management , 11 M.S.P.R. 77 (1982). ID at 3-4. In
Hyde, 40 M.S.P.R. at 207, the Board held that it is without authority to adjudicate
the validity of, or to void, a civil marriage. The Board further held in Hyde that
the validity of a marriage under applicable state law must be determined by the
appropriate local judicial body. Id. In Nivert, 11 M.S.P.R. at 78, the Board
observed that a putative spouse, who is entitled under state law to the same rights
and benefits as a legal wife, has been held by the former U.S. Civil Service
Commission to be entitled to a civil service survivor annuity when there is no
legal spouse contesting for receipt of these payments. In the instant appeal, the
administrative judge found that the local court (and not OPM or the Board) must
make the determination as to whether the appellant is recognized as a putative
spouse. ID at 3-4. The administrative judge explained that, because the record
was devoid of evidence that a California court had made a determination on the
appellant’s potential status as a putative spouse, she was unable to assess the
validity of the appellant’s marriage to the decedent. ID at 4. Accordingly, the
administrative judge found it appropriate to vacate OPM’s reconsideration
decision and to remand the case to OPM to issue a new decision after obtaining
the local court’s judgment on the appellant’s potential status as a putative spouse.
ID at 4-5.
In its petition for review, OPM raises two main arguments: (1) the
administrative judge erroneously shifted the burden of proving entitlement to
death benefits from the appellant to OPM by ordering OPM to obtain the local
court’s judgment on her alleged status as a putative spouse; and (2) even if the
appellant were to be recognized as a putative spouse, she would not be entitled to
death benefits because her marriage to the decedent would be considered void or7
voidable under California law. PFR File, Tab 1 at 4-5, 9-17. To support its
second argument, OPM relies on Money, 811 F.2d at 1477, 1479, in which the
U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that the
Board did not err in finding that Federal law directs the distribution of the civil
service survivor annuity at issue4 and in consulting California law only to identify
who was the decedent’s legal spouse at the time of his death. PFR File, Tab 1
at 13, 15. In addition, OPM does not dispute that there may be other remedies
that the appellant could seek through state court that may allow her to meet the
statutory definition of “widow” under 5 U.S.C. § 8441(1). PFR File, Tab 1
at 16 n.4. OPM proposes an alternative disposition of vacating the initial
decision and remanding the appeal to OPM to provide the appellant with an
opportunity to seek a state court determination allowing her to prove that she is
the decedent’s “widow.” Id. at 17.
In her response and cross petition for review, the appellant opposes OPM’s
arguments, and she requests the Board to clarify how obtaining the state court’s
judgment that she is a putative spouse would affect her case. PFR File, Tab 3
at 6-14. The appellant has resubmitted her marriage certificate and an order
determining succession to real property, both of which are part of the record
before the administrative judge. Id. at 17, 19; IAF, Tab 20 at 14, 16, Tab 22
at 11, 13.
For the following reasons, we vacate the initial decision and OPM’s
reconsideration decision and we remand the appeal to OPM. We agree with the
administrative judge’s finding that any determination regarding the appellant’s
status as a putative spouse must be made by the California court system, as
mandated under Cal. Fam. Code § 2251(a). ID at 3-4; see Ceja v. Rudolph &
Sletten, Inc., 302 P.3d 211, 221 (Cal. 2013) (holding that the trial court must
4 The survivor annuity at issue in Money, 811 F.2d at 1476, is set forth at 5 U.S.C.
§ 8341(d), which authorizes a survivor annuity for a “widow or widower” of an
employee who dies after completing at least 18 months of Federal civilian service under
the Civil Service Retirement System.8
consider the totality of the circumstances in determining whether an alleged
putative spouse had a good faith belief that the marriage was valid); In re Estate
of Goldberg, 21 Cal. Rptr. 626, 632 (Cal. Dist. Ct. App. 1962) (finding that
whether the required belief was held in good faith by the alleged putative spouse
was a question of fact to be resolved by the trial court). However, we agree with
OPM that the administrative judge improperly placed the burden on OPM to
obtain the local court’s judgment on the appellant’s alleged status as a putative
spouse. The appellant, not OPM, bears the burden of proving entitlement to
retirement benefits by preponderant evidence. Cheeseman, 791 F.2d at 140-41;
5 C.F.R. § 1201.56(b)(2)(ii). To the extent the administrative judge relied on
Hyde in ordering OPM to obtain the local court’s judgment, we find that Hyde
does not support such action. In Hyde, 40 M.S.P.R. at 207 & n.1, the Board
remanded the case to OPM for a supplemental reconsideration decision and noted
that the appellant could introduce on remand to OPM a court order concluding
that the marriage at issue was void. Although OPM represented before the Board
in Hyde that it normally would attempt to obtain an appropriate court’s
declaratory judgment before accepting a claim that a ceremonial marriage was
void, the Board did not order OPM to do so. Id. at 207-08.
Moreover, based on the current record, we are unable to rule on OPM’s
argument that the appellant would not be entitled to death benefits as a putative
spouse of the decedent. In particular, OPM has not responded specifically to the
Board’s contemplation in Nivert, 11 M.S.P.R. at 78, that a putative spouse could
be entitled to a survivor annuity when there is no competing claim from a legal
spouse. Further, OPM has not addressed the possibility of recognizing a putative
spouse as married in equity under its regulatory definition of “marriage” set forth
at 5 C.F.R. § 843.102. As discussed above, OPM relies on the Federal Circuit’s
decision in Money, 811 F.2d at 1477, 1479, to support its argument. PFR File,
Tab 1 at 13, 15. However, we find that Money does not preclude the possibility9
that, under California law, a putative spouse could be considered as married in
equity.
Under the circumstances of this appeal, we find it appropriate to grant
OPM’s alternative request to vacate the initial decision and remand the appeal to
OPM to allow the appellant to seek the state court’s judgment. Cf. Goldbach v.
Office of Personnel Management , 42 M.S.P.R. 57, 60 (1989) (giving effect to the
state court decision regarding the appellant’s common-law marriage). In light of
our decision to remand this matter to OPM for a new reconsideration decision, we
deny the appellant’s request to clarify how obtaining the state court’s judgment
that she is a putative spouse would affect her case. See 5 U.S.C. § 1204(h)
(prohibiting the Board from issuing advisory opinions).
ORDER
We remand this case to OPM to provide the appellant with the opportunity
to obtain the local court’s judgment regarding the validity of her marriage to the
decedent and, if necessary, her alleged status as a putative spouse and to submit
such judgment to OPM. After providing the appellant with such an opportunity,
OPM shall promptly issue a new reconsideration decision and shall advise the
appellant of her right to appeal to the Board if she disagrees with that new
decision. See, e.g., Ott v. Office of Personnel Management , 120 M.S.P.R. 453,
¶ 9 (2013).
We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and to describe the actions it
took 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 the10
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182(a).
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.11 | Amidon_Bonita_J_SF-0843-17-0578-I-1_Remand_Order.pdf | 2024-01-02 | BONITA J. AMIDON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0843-17-0578-I-1, January 2, 2024 | SF-0843-17-0578-I-1 | NP |
2,577 | https://www.mspb.gov/decisions/nonprecedential/Donahue_Sean_M_PH-3330-18-0099-B-1__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEAN M. DONAHUE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-3330-18-0099-B-1
DATE: December 29, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sean M. Donahue , Hazleton, Pennsylvania, pro se.
Christine Beam , Esquire, and Jillian Flatley , Esquire, Pittsburg,
Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the remand initial decision,
which denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998. On petition for review, the appellant reasserts that he
was denied the right to compete for this position because the agency failed 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).
seriously consider him for the position. Remand 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).
NOTICE OF APPEAL RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
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
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Donahue_Sean_M_PH-3330-18-0099-B-1__Final Order.pdf | 2023-12-29 | SEAN M. DONAHUE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-3330-18-0099-B-1, December 29, 2023 | PH-3330-18-0099-B-1 | NP |
2,578 | https://www.mspb.gov/decisions/nonprecedential/Ellerman_Bradley_T_CH-1221-18-0364-W-1__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRADLEY THOMAS ELLERMAN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-1221-18-0364-W-1
DATE: December 29, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley Thomas Ellerman , Mauston, Wisconsin, pro se.
Eric J. Teegarden , Esquire, Fort McCoy, Wisconsin, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his 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
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).
2
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. We MODIFY the initial decision to
expressly consider whether the appellant made a nonfrivolous allegation of a
protected disclosure of a violation of 5 C.F.R. § 330.1300 or 5 C.F.R.
§ 731.103(d)(1). Except as so modified to supplement the administrative judge’s
analysis, we AFFIRM the initial decision.
To establish jurisdiction over a typical IRA appeal, an appellant must show
by preponderant evidence that he exhausted his remedies before the Office of
Special Counsel (OSC) and make nonfrivolous allegations of the following:
(1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in a
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016);
5 C.F.R. § 1201.57(a)(1), (b), (c)(1). A nonfrivolous allegation is an assertion
that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). An
allegation generally will be considered nonfrivolous when, under oath or penalty
of perjury, an individual makes an allegation that is more than conclusory,
plausible on its face, and material to the legal issues in the appeal. Id. As the
U.S. Court of Appeals for the Federal Circuit in Hessami v. Merit Systems
Protection Board , 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020) determined:
“[T]he question of whether the appellant has non-frivolously alleged protected
3
disclosures [or activities] that contributed to a personnel action must be
determined based on whether the employee alleged sufficient factual matter,
accepted as true, to state a claim that is plausible on its face.” Pro forma
allegations are insufficient to meet the nonfrivolous standard. Clark v. U.S Postal
Service, 123 M.S.P.R. 466, ¶ 6 (2016), aff’d, 679 F. App’x 1006 (Fed. Cir. 2017),
overruled on other grounds by Cronin v. U.S. Postal Service , 2022 MSPB 13,
¶ 20 n. 11.
On petition for review, the appellant argues, among other things, that he
established jurisdiction because he nonfrivolously alleged that the agency
retaliated against him for his alleged protected disclosures questioning the
agency’s selection procedures for promotional opportunities and disagreeing with
certain office practices “regarding misuse of background information and
improper procedures for withdrawing job offers from applicants for employment.”
Petition for Review (PFR) File, Tab 1 at 5. As relevant to this IRA appeal, the
term “disclosure” means “a formal or informal communication or transmission,
but does not include a communication concerning policy decisions that lawfully
exercise discretionary authority unless the employee or applicant providing the
disclosure reasonably believes that the disclosure evidences” one of the
categories of wrongdoing described in 5 U.S.C. § 2302(b)(8), i.e., “(i) any
violation of any law, rule, or regulation; or (ii) gross mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and specific danger to
public health and safety.” See 5 U.S.C. § 2302(a)(2)(D). The test to determine
whether an employee had a reasonable belief in his disclosures 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 evidenced any violation of any law, rule, or regulation, or one of
the other types of wrongdoing set forth in 5 U.S.C. § 2302(a)(2), (b)(8). See
Salerno, 123 M.S.P.R. 230, ¶ 6.
4
We agree with the administrative judge’s conclusion that the appellant has
failed to make a nonfrivolous allegation that he made such a protected disclosure.
Initial Appeal File (IAF), Tab 6, Initial Decision (ID) at 6. As part of his
analysis, the administrative judge generally considered whether the appellant had
nonfrivolously alleged that he made a protected disclosure of a violation of
5 C.F.R. part 731. ID at 6-8. We hereby supplement the initial decision to
consider specifically whether the appellant nonfrivolously alleged that he made a
protected disclosure of a violation of 5 C.F.R. § 330.1300 and 5 C.F.R.
§ 731.103(d)(1). These regulations pertain to when, during the hiring process
(unless an exception is granted by the Office of Personnel Management), agencies
can inquire about applicants’ background information of the sort asked on the
Optional Form 306 (OF-306), “Declaration for Federal Employment,” to
determine their suitability for Federal employment. 81 Fed. Reg. 86555, 86555
(Dec. 1, 2016). The record contains only a few assertions that could potentially
implicate these regulations.2 PFR File, Tab 1 at 5; IAF, Tab 1 at 17-21. For the
following reasons, we find that the appellant has failed to make an assertion that,
if proven, could establish that he made any disclosures that he could have
reasonably believed evidenced a violation of these regulations.
The appellant is a Human Resources Specialist with the agency. IAF,
Tab 1 at 1, 6, 16. His OSC complaint contains the most expansive description in
the record of his reprisal claim. In his OSC complaint, he asserted in general
terms that in June 2017, prior to the alleged personnel actions at issue in this
appeal, he had “begun [to] question” the agency’s screening process, was
involved in “[m]any discussions,” and had sent “communications” to supervisors
2 The appellant’s failure to identify these particular regulations is not in and of itself
dispositive of the jurisdictional issue. See Langer v. Department of the Treasury ,
265 F.3d 1259, 1266 (Fed. Cir. 2001) (holding that a disclosure may be considered
protected, even in the absence of identification of a specific statute or regulation, “when
the employee’s statements and the circumstances surrounding the making of those
statements clearly implicate an identifiable violation of law, rule, or regulation”);
accord Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 19 (2013).
5
“regarding correcting of the background disclosure process.” Id. at 17-20. He
did not specify what statements he made or what information he provided as a
part of these discussions and communications. He did not claim to have
expressed a belief, even in general terms, of a violation of any law, rule, or
regulation. He claimed that, at the time he filed his OSC complaint in September
2017, he was being informed that agency officials were “still” reviewing the
process and seeking guidance from “CHRA,” which we presume to mean the
Civilian Human Resources Agency. Id. at 14, 19. He further stated his belief
that, at the time of his OSC complaint, other staffing specialists were “still
sending” OF-306 information to hiring managers, “allowing them to change their
selection decision, thus bypassing the suitability process.” Id. at 19; accord id.
at 18 (briefly describing the agency’s “[c]urrent process” in similar terms).3
Based on his brief statements in the record, we deduce that he was
“question[ing]” and “discuss[ing]” the stage in the selection process at which
selecting officials were being provided with information of the type contained on
the OF-306, during a time at which the agency was reviewing its processes. Id.
at 17-21. At most, he has broadly asserted that he expressed his personal opinion
that the agency should “correct[]” its process. Id. at 20. He has not asserted,
however, what facts or circumstances known to, or readily ascertainable by, him
could have led him to reasonably believe that any violation of any law, rule, or
regulation had occurred or would occur, or that he expressed such a belief or
communicated such facts to anyone.4 Based on his limited presentation, we find
3 He has never alleged that the agency retaliated against him for his OSC complaint
itself or for disclosing any information to OSC.
4 In an IRA appeal, an appellant is not required to allege or prove that the disclosed
wrongdoing actually occurred; rather, the issue is his reasonable belief based on the
known and readily ascertainable facts. See, e.g., Mithen v. Department of Veterans
Affairs, 122 M.S.P.R. 489, ¶ 24 (2015), aff’d, 652 F. App’x 971 (Fed. Cir. 2016). As to
whether the appellant could have reasonably believed that he was revealing any
violation of any law, rule, or regulation, we observe that 5 C.F.R. § 330.1300 and
5 C.F.R. § 731.103(d)(1) do not contain an absolute bar to an agency’s inquiry into
criminal or credit background information, but rather, these regulations set forth a
6
that he has not made a nonfrivolous allegation that he made a disclosure that he
reasonably believed evidenced any violation of any law, rule, or regulation
(including 5 C.F.R. § 330.1300 or § 731.103(d)(1)), or one of the other types of
wrongdoing set forth in 5 U.S.C. § 2302(b)(8). See 5 U.S.C. § 2302(a)(2)(D);
Salerno, 123 M.S.P.R. 230, ¶ 7 (finding that the appellant’s purported disclosure
of a disregard for compliance issues was not sufficiently specific to constitute a
nonfrivolous allegation of a protected disclosure); Tuten v. Department of Justice ,
104 M.S.P.R. 271, ¶¶ 9-11 (2006) (holding that the appellant’s conclusory
allegations that the agency falsified medical records and illegally transferred sick
inmates to pass program review were insufficiently specific to constitute a
nonfrivolous allegation of a protected disclosure), aff’d, 2007 WL 2914787 (Fed.
Cir. 2007); Sobczak v. Environmental Protection Agency , 64 M.S.P.R. 118, 122
(1994) (concluding that the appellant’s allegations that a consulting firm “might
be involved in illegal business practices . . . mishandling their contracts with the
[Environmental Protection Agency] or getting preferential treatment in obtaining
government benefits” were based on unsupported speculation and thus he failed to
prove that he had a reasonable belief that he was disclosing evidence of illegal
practices); see also Ellison v. Merit Systems Protection Board , 7 F.3d 1031, 1036
(Fed. Cir. 1993) (“The law . . . is well settled that the mere recitation of a basis
for jurisdiction by a party is not sufficient. Rather, substantive details
establishing jurisdiction must be alleged in the complaint.”).
The appellant did not respond to the administrative judge’s jurisdictional
order, and thus he missed an opportunity to further explain his allegations. IAF,
Tab 3. On petition for review, he claims not to have understood that he needed to
general rule concerning the timing of such inquiries and further expressly provide for
exceptions to that general rule. Thus, the circumstances of the handling of this
information must be taken into consideration before a reasonable conclusion could be
drawn as to whether these regulations have been violated. To the extent it can be
inferred from the appellant’s allegations that his alleged protected disclosures are based
on his knowledge that agency personnel were sending such background information to
hiring managers, such knowledge alone could not support a reasonable belief that a
violation of these regulations had occurred.
7
respond to that order. PFR File, Tab 1 at 5. We find this claim unavailing
because the appellant was a registered e-filer with a duty to monitor case activity
to ensure receipt of all case-related documents, IAF, Tab 1 at 2; see 5 C.F.R.
§ 1201.14(j)(3), and the administrative judge’s jurisdictional order clearly
explained that he must respond with evidence and argument on the issues
described in that order, IAF, Tab 3 at 7-8. In any event, his petition for review
does not provide any material new detail. PFR File, Tab 1 at 5.5 In relevant part,
he merely states that he was retaliated against “after [his] questioning of selection
procedures for promotional opportunities, and after disagreement with our offices
[sic] practices regarding misuse of background information and improper
procedures for withdrawing job offers from applicants for employment.” Id.
Even assuming that he questioned procedures and disagreed with office practices
as he asserts, he has failed to allege facts that, if proven, could support a
conclusion that he made a disclosure that he reasonably could have believed
evidenced any violation of any law, rule, or regulation, or one of the other types
of wrongdoing described in 5 U.S.C. § 2302(b)(8). See 5 U.S.C. § 2302(a)(2)(D);
Tuten v. Merit Systems Protection Board , 2007 WL 2914787, at *2 (Fed. Cir.
Oct. 5, 2007) (affirming the Board’s dismissal of an IRA appeal for lack of
jurisdiction when the appellant had “provided nothing more than bare assertions
of wrongdoing by the agency, even after being given an opportunity to provide
more detail”) (citing Ellison, 7 F.3d at 1036);6 Salerno, 123 M.S.P.R. 230, ¶ 7;
Tuten, 104 M.S.P.R. 271, ¶¶ 9-11; Sobczak, 64 M.S.P.R. at 122.7
5 The documents attached to his petition for review are identical to the documents
attached to his initial appeal. PFR File, Tab 1 at 7-24; IAF, Tab 1 at 6-23.
6 The Board may rely on unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit when, as in this instance, it finds the analysis persuasive. E.g., Graves
v. Department of Veterans Affairs , 123 M.S.P.R. 434, ¶ 10 n.1 (2016).
7 His brief assertions on review show no error in the administrative judge’s finding that
he failed to make a nonfrivolous allegation establishing jurisdiction on the theory that
the agency at least “perceived” him to be a whistleblower. ID at 6; see Rumsey v.
Department of Justice , 120 M.S.P.R. 259, ¶¶ 7-8 (2013) (explaining that one issue in a
“perceived as” whistleblower reprisal case is whether the relevant agency officials
8
The appellant also claims that the agency subjected him to retaliation for
filing an EEO complaint. PFR File, Tab 1 at 5. However, retaliation for filing an
EEO complaint is a matter relating solely to discrimination and is not protected
by 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D); thus, this claim is not a
basis for finding jurisdiction in this IRA appeal. See Edwards v. Department of
Labor, 2022 MSPB 9, ¶¶ 10, 21-23 25, aff’d, No. 2022-1967, 2023 WL 4398002
(Fed. Cir. July 7, 2023). The appellant’s OSC complaint contains an assertion
that the agency also retaliated against him for requesting a reasonable
accommodation of his disabilities. IAF, Tab 1 at 17. This claim is not a source
of IRA jurisdiction because such a request for accommodation is not the “exercise
of any appeal, complaint, or grievance right,” and it does not concern “remedying
a violation of [5 U.S.C. § 2302(b)(8)].” See 5 U.S.C. § 2302(b)(9)(A)(i); Graves
v. Department of Veterans Affairs , 123 M.S.P.R. 434, ¶ 18 (2016) (finding that
the appellant had not exercised any appeal, complaint, or grievance right as
described in section 2302(b)(9) when the appellant’s actions did not constitute an
initial step toward taking legal action against an employer for a perceived
violation of employment rights).
Accordingly, the Board lacks jurisdiction over this appeal.8
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
believed that the appellant had made disclosures of the type described in 5 U.S.C.
§ 2302(a)(2), (b)(8)).
8 The appellant’s arguments on review about the merits of his 3-day suspension are
immaterial to the dispositive jurisdictional issues. PFR File, Tab 1 at 5.
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.
9
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
10
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
11
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.10 The court of appeals must receive your petition for
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
12
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
13
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Ellerman_Bradley_T_CH-1221-18-0364-W-1__Final Order.pdf | 2023-12-29 | BRADLEY THOMAS ELLERMAN v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-1221-18-0364-W-1, December 29, 2023 | CH-1221-18-0364-W-1 | NP |
2,579 | https://www.mspb.gov/decisions/nonprecedential/Carroll_Michael_S_DA-0752-16-0248-I-2__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL S. CARROLL,
Appellant,
v.
FEDERAL DEPOSIT INSURANCE
CORPORATION,
Agency.DOCKET NUMBER
DA-0752-16-0248-I-2
DATE: December 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael S. Carroll , Plano, Texas, pro se.
Megan Borovicka , 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
sustained his performance-based removal under 5 U.S.C. chapter 75. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review. Except as expressly MODIFIED, at footnote 5 below, with
regard to the standard for proving reprisal for prior equal employment
opportunity (EEO) activity based on disability discrimination, we AFFIRM the
initial decision.
BACKGROUND
On November 6, 2011, the agency appointed the appellant to the position of
CG-09 Mid-Career Compliance Examiner in its Division of Depositor and
Consumer Protection. Carroll v. Federal Deposit Insurance Corporation , MSPB
Docket No. DA-0752-16-0248-I-1, Initial Appeal File (IAF), Tab 23 at 74. A
Mid-Career Compliance Examiner is a developmental position designed to
familiarize the incumbent with bank examinations through work experience. IAF,
Tab 23 at 77-78. The goal is for the incumbent to acquire the knowledge and
experience required for advancement to the position of CG-11 Compliance
Examiner. Id. at 77. Promotion to the CG-11 Compliance Examiner position
requires the incumbent to obtain a commission from the agency. Id. The
agency’s decision on whether to award a commission is based on the incumbent’s
job performance and the results of a “technical evaluation”—a test designed to
measure a candidate’s ability to perform the duties of a commissioned CG -11
Compliance Examiner. IAF, Tab 23 at 52-62. Before taking the technical
3
evaluation, a CG-09 Mid-Career Compliance Examiner is expected to meet
certain training and developmental benchmarks. Id. at 54-75. Prior to his
appointment, the appellant executed an agreement acknowledging that he must
obtain a commission within 30 months of his entry on duty. Id. at 75. He further
acknowledged that if he failed to do so, he would be given an additional 6-month
period, including a performance improvement plan (PIP), in which to take the
technical evaluation and perform the other tasks required for obtaining a
commission. Id. If he still failed to obtain a commission after that, he would be
separated from service.2 Id.
One of the developmental benchmarks that a Mid-Career Compliance
examiner must meet is to satisfactorily complete at least two jobs as an Acting
Examiner in Charge. Id. at 72. The appellant in this case began working on this
benchmark approximately 2 years into his appointment, but the agency
determined that his overall performance in this area was not successful. IAF,
Tab 22 at 111-29. Shortly thereafter, on April 23, 2014, the appellant had a
midyear performance meeting with his first-line supervisor, who told him that his
performance needed to improve. Id. at 63. He notified the appellant that if his
performance did not improve, it could affect his annual performance rating, he
might not be recommended for a commission, and he could be placed on a PIP.
Id.
On June 9, 2014, the appellant’s second-line supervisor placed him on a
90-day PIP. Id. at 44-49. Under the PIP, the appellant was supposed to complete
several tasks, with the goal of improving his performance and meeting the
remainder of his CG-09 Mid-Career Compliance Examiner benchmarks. Id. On
October 9, 2014, the appellant’s second-level supervisor issued a memorandum
notifying the appellant that he failed to complete the PIP successfully. Id.
2 Mid-Career Compliance Examiner could fairly be described as an “up-or-out”
position. See generally, e.g. , Wright v. Department of Transportation , 900 F.2d 1541,
1544-45 (Fed. Cir. 1990), aff’d, 53 F.3d 346 (Fed. Cir. 1995) (Table).
4
at 22-28. On November 11, 2014, the agency issued the appellant his annual
performance evaluation, with a summary rating of “Unacceptable.”3 Id. at 4-6.
On December 12, 2014, the appellant’s fourth-line supervisor proposed his
removal for unsatisfactory performance under 5 U.S.C. chapter 75. IAF, Tab 18
at 4-13. The charge was supported by 45 specifications of alleged unsatisfactory
performance during the PIP period. Id. at 5-12. After considering the appellant’s
response to the proposal, his fifth-line supervisor issued a decision sustaining 44
of the 45 specifications and removing him from service effective February 20,
2015. IAF, Tab 17 at 53-63, 110-12.
The appellant filed a formal complaint of discrimination, alleging that his
removal was discriminatory based on race, color, sex, disability, and age, as well
as retaliation for protected activity. IAF, Tab 16 at 60-61. On November 24,
2015, the agency issued a final decision finding no discrimination. IAF, Tab 8
at 23-42. The appellant then filed the instant Board appeal, contesting his
removal and raising affirmative defenses of whistleblower reprisal, uniformed
service discrimination, retaliation for union activity, retaliation for prior EEO
activity, and discrimination based on race, color, sex, age, and disability. IAF,
Tab 1, Tab 53 at 2.
During the course of the Board proceedings, a discovery dispute arose, and
the agency filed a motion to compel as well as a motion for sanctions due to the
appellant’s failure to respond to its discovery requests or to appear for a
scheduled deposition. IAF, Tabs 26-27. The administrative judge granted the
motion to compel in part, ordering the appellant to produce certain documents and
to appear for a deposition, but she denied the motion for sanctions. IAF, Tab 30.
Shortly thereafter, the appellant failed to join a scheduled status conference call,
and the administrative judge ordered him to show cause why sanctions should not
be imposed. IAF, Tab 31. The appellant responded, alleging that he had not
3 The appellant’s first-line supervisor was the rating official, and his second-line
supervisor was the reviewing official. IAF, Tab 22 at 4.
5
received the administrative judge’s order scheduling the status conference. IAF,
Tab 32. The agency then moved for sanctions again, in part because the appellant
had failed to comply with the order compelling discovery. IAF, Tab 33. The
administrative judge then issued another order, denying the request for sanctions,
informing the appellant that all correspondence had been sent to his address of
record, again directing him to respond to the agency’s discovery requests, and
warning him that continued failure to comply with her orders would result in
sanctions. IAF, Tab 34. Two months later, the agency moved for sanctions a
third time, alleging that the appellant had still failed to produce documents as
directed, failed to cooperate in arranging a deposition, and failed to respond
adequately to the administrative judge’s order on affirmative defenses. IAF,
Tabs 46, 48.
After a telephonic status conference, the administrative judge issued an
order imposing sanctions on the appellant. IAF, Tab 53 at 4-5. She ordered that
the appellant would be prohibited from introducing evidence concerning the
information that the agency sought during discovery, or from otherwise relying
upon testimony related to that information. Id. at 5. She advised the appellant
that he could still rely on the documentation that was already part of the record,
including the agency’s report of investigation (ROI) on the appellant’s
discrimination complaint, testify at the hearing on matters not covered by the
sanction, and submit any new and material evidence postdating the sanctions
order. Id. at 5 n.6. As a result of her sanctions order, the administrative judge
excluded 37 of the appellant’s proffered witnesses, as well as his 550 pages of
exhibits. Carroll v. Federal Deposit Insurance Corporation , MSPB Docket
No. DA-0752-16-0248-I-2, Appeal File (I-2 AF), Tab 13 at 2-4; Hearing
Transcript (HT),Volume 1 at 5.
6
After a hearing, the administrative judge issued an initial decision
sustaining the appellant’s removal.4 I-2 AF, Tab 19, Initial Decision (ID). She
found that the agency proved all 44 specifications of unacceptable performance
underlying the removal, ID at 8-34, that the appellant failed to prove his
affirmative defenses, ID at 35-56, and that the removal penalty was reasonable,
ID at 56-59.
The appellant has filed a petition for review, disputing the administrative
judge’s conduct of the proceedings and contesting her findings on his affirmative
defenses. Petition for Review (PFR) File, Tab 1. The agency has filed a
response. PFR File, Tab 3.
ANALYSIS
The administrative judge did not abuse her discretion or show bias in conducting
the proceedings in this appeal.
On petition for review, the appellant argues that the administrative judge
failed to accommodate his disabilities so that he could adequately represent
himself without exacerbating his medical conditions. PFR File, Tab 1 at 1-2. We
disagree. An administrative judge has broad authority to control the proceedings
before her, and her procedural rulings are subject to an abuse of discretion
standard. O’Connor v. Small Business Administration , 60 M.S.P.R. 130, 132
(1993); 5 C.F.R. §§ 1201.41(b), 1201.115(c). In order to accommodate the
appellant’s disability related to his chronic degenerative osteoarthritis, the
administrative judge in this case limited the hearing to 4 hours per day, with
breaks as needed by the appellant. IAF, Tab 9 at 70, Tab 53 at 6 n.8; HT, Volume
1 at 12-15. The appellant has not explained what other accommodations he may
have required or how failure to provide further accommodations might have
affected his ability to participate in these proceedings. We therefore find that the
4 Although the appellant had been approved as a witness, both for himself and for the
agency, he declined to testify on his own behalf, and he refused to answer any of agency
counsel’s questions, despite the administrative judge’s warning that his refusal would
lead to an adverse inference. HT, Vol. 3 at 496-501.
7
appellant has not shown that the administrative judge abused her discretion in this
regard, much less that any abuse of discretion affected the outcome of the appeal.
The appellant also disputes the administrative judge’s ruling on sanctions.
He argues that he was justified in refusing to be deposed at a local agency facility
because the agency had previously denied him access to that facility and his
posttraumatic stress disorder (PTSD) would not allow for him to enter the facility
because he considered the location to be highly stressful, particularly with armed
security present. PFR File, Tab 1 at 9-11. He states that it would have been more
appropriate to conduct the deposition in a “neutral” location. Id. at 9-10.
We are not persuaded by the appellant’s argument. We find nothing
unreasonable about the agency deposing the appellant at its own field office close
to the appellant’s home. As the administrative judge accurately explained, there
is nothing unusual about this, or about the agency providing an escort. IAF,
Tab 49. Nor has the appellant shown that it is unusual at this facility for the
escort to be armed. Furthermore, nowhere in the record has the appellant
identified the alternative deposition sites that he allegedly found. Nor are we
persuaded that the appellant’s PTSD prevented him from appearing at the
agency’s field office. Not only is the appellant’s assertion in this regard unsworn
and unsupported by any medical documentation, but it also resembles a post hoc
justification for his failure to cooperate in the deposition process insofar as he
first raised it more than 6 months after he began avoiding deposition. IAF,
Tab 27 at 7, Tab 47; see Abatecola v. Veterans Administration , 29 M.S.P.R. 601,
607 n.3 (finding that a delay in raising an allegation undermined the credibility of
that allegation), aff’d, 802 F.2d 471 (Fed. Cir. 1986) (Table). Finally, we note
that the appellant’s failure to attend a deposition was not the only reason for the
sanctions. The other reason was the appellant’s failure to comply with the
administrative judge’s order on production of documents, which the petition for
review does not address. IAF, Tab 53 at 4-5. For these reasons, we find that the
appellant has not shown that the administrative judge abused her discretion in
8
imposing sanctions consistent with Board precedent for his failure to cooperate in
discovery. See Smets v. Department of the Navy , 117 M.S.P.R. 164, ¶ 12 (2011),
aff’d per curiam , 498 F. App’x 1 (Fed. Cir. 2012)
The appellant also argues that he was denied discovery. IAF, Tab 1
at 10-11. However, the appellant failed to file a timely motion to compel below
and is thus precluded from raising this issue on petition for review. Szejner v.
Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F.
App’x 217 (Fed. Cir. 2006).
At the prehearing conference, the administrative judge excluded several of
the appellant’s proffered witnesses on the basis that their expected testimony was
either precluded by the sanctions order or was irrelevant, immaterial, or
repetitious. IAF, Tab 53 at 5 & n.6; I-2 AF, Tab 13 at 3-4. On review, the
appellant argues that the administrative judge erred in excluding these witnesses
and by limiting his examination of the approved witnesses at the hearing. PFR
File, Tab 1 at 3-8, 14-16, 21-22. He explains the relevance of several excluded
witnesses, as well as testimony that the administrative judge excluded at the
hearing. Id. However, the expected testimony, as the appellant describes it,
appears to have been calculated to relate to his discrimination and reprisal claims,
and was thus properly excluded under the sanctions order. PFR File, Tab 1
at 4-8, 14-16; IAF, Tab 23 at 13-15, Tab 30, Tab 53 at 5 & n.6.
The appellant also disputes the administrative judge’s statement in the
initial decision that he refused to testify at the hearing. PFR File, Tab 1 at 12-13.
We have reviewed the relevant portions of the hearing transcript, and we find that
the administrative judge’s description of events was accurate. ID at 3; HT,
Volume 3 at 496-501. The appellant did, in fact, decline to testify on his own
behalf, and he refused to provide responsive answers to agency counsel.
The appellant further argues that the administrative judge was biased
against him. PFR File, Tab 1 at 12-14, 16-18, 22. Among other things, he argues
that her reliance on the agency’s ROI was “shocking and unorthodox behavior.”
9
Id. at 12-13. He states that the administrative judge “threw a tantrum” when he
refused to testify and that her procedural rulings made it unnecessarily difficult
for him to prosecute his case. Id. at 13-14. He argues that the outcome of his
appeal was predetermined as evidenced by the administrative judge’s case-related
rulings, and her advice before the hearing that he would need to retain certain
documents to appeal her decision. Id. at 17-18. He asserts that the administrative
judge was influenced by the agency’s ex parte communications. Id. at 17. The
appellant also argues that the administrative judge assigned to mediate his case
was biased. Id. at 16-17.
Regarding the mediation administrative judge, even if she were biased as
the appellant alleges, this fact would only go the outcome of the mediation, and
not to the outcome of the initial decision. We therefore find that the appellant’s
arguments concerning the mediation process provide no basis to grant the petition
for review. See 5 C.F.R. § 1201.115. Regarding the administrative judge
assigned to adjudicate this appeal, an administrative judge’s conduct during the
course of a Board proceeding warrants a new adjudication only if her comments
or actions evidence “a deep-seated favoritism or antagonism that would make fair
judgment impossible.” Bieber v. Department of the Army , 287 F.3d 1358,
1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555
(1994)). A party claiming bias or prejudgment by an administrative judge must
overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Higgins v. U.S. Postal Service , 43 M.S.P.R. 66, 68
(1989). To the extent that the appellant is relying on the administrative judge’s
case-related rulings to establish bias, we find that these are insufficient to
overcome this presumption. See Martinez v. Department of the Interior ,
88 M.S.P.R. 169, ¶ 14 (2001). As for the alleged ex parte communications that
the appellant claims influenced the administrative judge, he does not explain why
he believes any such communications occurred, what the nature of them might
have been, or whether they may have been prohibited under 5 C.F.R.
10
§ 1201.101(a). Nor do we find that the administrative judge’s proscriptive advice
about appealing her decision indicates in any way that she prejudged this case.
HT, Volume 1 at 6. Rather, it would appear that she was attempting to protect
this pro se appellant’s substantive rights. Id. Finally, our review of the hearing
transcript and the accompanying recording does not support the appellant’s claim
that the administrative judge lost her temper when he refused to testify. Hearing
Audio Recording, Mar. 21, 2018 at 3:16:30-3:22:00; HT, Volume 3 at 495-501.
To the contrary, we find that the administrative judge conducted herself calmly
and judiciously during the hearing, as she did at each stage of the appeal below.
She afforded the appellant every opportunity to participate in his appeal, from
giving him multiple chances to comply with her orders, to giving him ample
warning of the possibility of sanctions, to ensuring that he understood the
consequences of refusing to testify. The case-related rulings that the appellant
complains about on review are a result of his own deliberate choices and are in no
way indicative of bias by the administrative judge.
The appellant has not established that the outcome of the initial decision was
based on adjudicatory error.
On petition for review, the appellant alleges that the agency’s investigation
into his discrimination complaint was biased and that the administrative judge
erred in relying on the ROI in reaching her decision. PFR File, Tab 1 at 11-12.
However, even if the investigation were biased as the appellant alleges, he has not
explained with specificity what information in the ROI is incomplete or incorrect,
or how this might have affected the initial decision. See Baney v. Department of
Justice, 109 M.S.P.R. 242, ¶ 7 (2008) (stating that a petition for review must state
objections to the initial decision that are supported by references to applicable
laws or regulations and by specific references to the record); Tines v. Department
of the Air Force , 56 M.S.P.R. 90, 92 (1992) (stating that a petition for review
must contain sufficient specificity to enable the Board to ascertain whether there
is a serious evidentiary challenge justifying a complete review of the record). We
11
have reviewed the initial decision, and we find that the administrative judge
limited her reliance on the ROI to evidence contained in four affidavits, including
the appellant’s. ID at 39-40, 44. We find no error in the administrative judge’s
consideration of these documents.
The appellant also argues the merits of his discrimination claims. He
argues that he is disabled, that the agency improperly denied his request for a
hardship transfer, that the agency mishandled his workers’ compensation (OWCP)
claim, and that the agency subjected him to a hostile work environment,
necessitating leave under the Family and Medical Leave Act of 1993 (FMLA).
PFR File, Tab 1 at 2-3. The fact that the appellant is disabled appears to be
undisputed, and his cursory statements about the hardship transfer are not a
sufficient basis to overturn the administrative judge’s thorough and well-reasoned
analysis of his disability discrimination claim, including his hardship transfer
requests. ID at 41-49. Regarding the appellant’s FMLA leave and his OWCP
claim, it is not clear how these allegations figure into his theory of the case, and
we find no error in the initial decision regarding these matters either.
Finally, the appellant argues that his first-level supervisor retaliated against
him for his grievance activity and that the agency prevented him from taking the
technical examination while allowing other similarly situated individuals to do so.
PFR File, Tab 1 at 18-21. However, as the appellant himself admits, he failed to
present any evidence to support his arguments. Id. at 21. The appellant attributes
this failure to the administrative judge’s sanctions order, id., but he has still not
made any proffer of evidence on review that would support his discrimination
claims. Therefore, even if the administrative judge had abused her discretion in
imposing sanctions, which she did not, there would still be no basis to grant the
petition for review because the appellant has not shown that any of the excluded
evidence would have affected the outcome of the case. See Thomas v. U.S. Postal
Service, 116 M.S.P.R. 453, ¶ 4 (2011); 5 C.F.R. § 1201.115(c).
12
The appellant does not directly contest the administrative judge’s findings
that the agency proved its charge of unsatisfactory performance or that the
removal penalty was reasonable and promoted the efficiency of the service. ID
at 4-34, 56-59. We find no basis to disturb these findings. Nor does the appellant
appear to contest the administrative judge’s findings on his affirmative defenses
of whistleblower reprisal or uniformed service discrimination. ID at 52-56. We
find no basis to disturb these findings either. Finally, with respect to the
administrative judge’s findings on the appellant’s affirmative defenses of
retaliation for union activity and discrimination and retaliation under 5 U.S.C.
§ 2302(b)(1), although the appellant has registered his disagreement with some of
these findings, for the reasons explained above, he has not provided a sufficient
basis for us to disturb them.5
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
5 After the initial decision in this appeal was issued, the Board issued a precedential
decision finding that a but-for causation standard applies for proving retaliation under
the Rehabilitation Act. Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 44-47. In adjudicating the appellant’s EEO reprisal claim, which appears to have
been based on a prior complaint of disability discrimination, the administrative judge in
this appeal applied the less stringent “motivating factor” standard, consistent with
Board precedent at the time. ID at 35-41; IAF, Tab 9 at 7. However, the appellant’s
failure to prove this lower causation standard means per force that he failed to prove the
higher causation standard as well. We therefore modify the initial decision to find that
the appellant did not prove that his prior EEO activity was a but-for cause of his
removal. See Pridgen, 2022 MSPB 31, ¶ 48.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
14
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
15
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
16
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Carroll_Michael_S_DA-0752-16-0248-I-2__Final Order.pdf | 2023-12-28 | MICHAEL S. CARROLL v. FEDERAL DEPOSIT INSURANCE CORPORATION, MSPB Docket No. DA-0752-16-0248-I-2, December 28, 2023 | DA-0752-16-0248-I-2 | NP |
2,580 | https://www.mspb.gov/decisions/nonprecedential/Callahan_Janet_C_CH-1221-17-0152-W-2__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JANET C. CALLAHAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-17-0152-W-2
DATE: December 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy A. Bridge , Esquire, Wellston, Michigan, for the appellant.
Stephanie Macht , 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 in this
individual right of action (IRA) appeal, which granted in part and denied in part
the appellant’s request for corrective action. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to vacate the administrative judge’s rationale for denying corrective
action for a “Letter of Expectations” and to find that we lack jurisdiction over
that claim, we AFFIRM the initial decision.
BACKGROUND
The following facts, as further detailed in the record and initial decision,
are undisputed. The appellant currently holds a GS-11 Social Worker position in
Dubuque, Iowa, but previously held the GS-13 position of Supervisory Social
Worker and Program Manager at the agency’s James A. Lovell Federal Health
Care Center (FHCC) in North Chicago, Illinois. Callahan v. Department of
Veterans Affairs , MSPB Docket No. CH-1221-17-0152-W-2, Refiled Appeal File
(RAF), Initial Decision (ID) at 2.2
In the years leading up to the events giving rise to this appeal, the appellant
had a history of exceptional performance ratings. ID at 2. But in July 2015,
several employees came together to lodge complaints about the appellant. ID
at 3. In particular, one of her subordinates alleged that the appellant was
2 To accommodate the appellant’s medical needs, the administrative judge dismissed her
appeal, without prejudice, for automatic refiling at a later date. Hence, the two docket
numbers for this one appeal. Callahan v. Department of Veterans Affairs , MSPB
Docket No. CH-1221-17-0152-W-1, Initial Appeal File, Tab 60, Initial Decision.
3
interfering with her right to religious observation. Id. By September 2015, the
Acting Assistant Associate Director (AAD) of the FHCC, where the appellant was
employed, was actively investigating this equal employment opportunity (EEO)
complaint. ID at 3-4. The Acting AAD produced her initial findings to the
Director of the FHCC in October 2015, which she revised the following month.
ID at 4-6; Callahan v. Department of Veterans Affairs , MSPB Docket No. CH-
1221-17-0152-W-1, Initial Appeal File (IAF), Tab 12 at 81-82, Tab 49 at 4-17.
Most notably, those recommendations included unspecified “corrective action,”
assigning the appellant a mentor, requiring she undergo training, abolishing her
position, and reassigning her to a nonsupervisory position. ID at 4-6; IAF,
Tab 12 at 81, Tab 49 at 15-17. At that time, the Director agreed, but asked that
Human Resources be looped in to review for appropriateness. IAF, Tab 12
at 81-82.
Although the Acting AAD, the Director, and others contemplated
disciplining the appellant as a result of the investigatory findings, the agency had
not yet done so by December 2015, when a number of key events occurred. ID
at 4-7. During that month, the agency learned that the Social Work Executive
(SWE) would soon retire, so the Acting AAD solicited for applicants to take on
the role as a collateral duty. ID at 7; IAF, Tab 5 at 89. The appellant applied and
interviewed, but the panel ranked her third of the four candidates. ID at 7-8.
Also in December 2015, just days after her interview, the appellant engaged in
the disclosure and activity that is the subject of the instant reprisal claim. ID
at 8-9; IAF, Tab 5 at 87-88.
The appellant disclosed to several agency officials and the Office of
Inspector General (OIG) that the recruitment for, and appointment to, the SWE
vacancy as a collateral duty assignment violated a particular policy about that
position. ID at 8; IAF, Tab 5 at 87-88. She further alleged that the process was
improper because, inter alia, the departing SWE was involved in the selection of
his successor. ID at 8-9. The Acting AAD and Director expressed displeasure
4
about the appellant’s activity, calling it classic bullying and an attempt to ruin
reputations. Without making a selection, the agency solicited for applicants a
second time by way of an amended vacancy announcement. ID at 9-11; IAF,
Tab 5 at 90, Tab 37 at 41-42, 45-47,
The next month, January 2016, agency officials continued to consider
whether to impose any discipline on the appellant concerning the EEO complaint
of her subordinate. ID at 11. In particular, the Acting Associate Director (AD)
expressed some reservations and some disagreement with the Acting AAD’s
recommendations, particularly the recommendation to abolish the appellant’s
position. Id.; IAF, Tab 48 at 48-51. But consistent with some of the
recommendations he did agree with, the Acting AD issued the appellant a “Letter
of Expectations”—which generally acknowledged the ongoing investigation, set
expectations, and informed her of some steps to follow, such as mandatory
training and the assignment of a mentor.3 ID at 11-12; IAF, Tab 5 at 106-07.
Soon thereafter, the appellant underwent a second interview, in concert with the
amended SWE announcement, where officials ranked her fourth of four
candidates. ID at 12; see IAF, Tab 50 at 52.
In March 2016, the Acting AD temporarily reassigned the appellant to a
nonsupervisory position—the one the appellant selected of the three the agency
offered her—pending the results of the ongoing EEO investigation. ID at 13;
IAF, Tab 5 at 117. The agency also changed course, once again, regarding the
SWE vacancy. ID at 14; IAF, Tab 6 at 106-07. Consistent with the appellant’s
complaint, the agency determined that the SWE role should be a full -time
supervisory position, rather than a collateral duty. ID at 14; IAF, Tab 50 at 57.
Accordingly, the agency conducted interviews a third time, in June 2016, after
which the panel ranked the appellant third of four candidates. ID at 14.
Ultimately, the agency selected the candidate who had consistently received the
3 The Acting AD also issued an “Expectations of Supervisors and Employees” letter to
the appellant, but that letter is of no significant relevance in this decision. ID at 11-12;
IAF, Tab 5 at 104.
5
top ranking in each of the three sets of interviews, i.e., the individual who had,
for years, served as the Acting SWE when the SWE was absent. ID at 7, 12, 14.
In September 2016, the appellant accepted a transfer to the GS -11 position
she currently holds in Dubuque.4 ID at 15; IAF, Tab 44 at 33-34. But before
relocating to that position and facility, the agency proposed her removal for
conduct unbecoming a supervisor, relating to the results of the EEO investigation
that started the year before. ID at 14-15; IAF, Tab 10 at 4-5. With the proposal
pending, the appellant completed her transfer to Dubuque, and an official at her
new facility became the deciding official. ID at 15; IAF, Tab 9 at 283. In
January 2017, that official dismissed the charge and all specifications, finding
that no discipline was warranted. ID at 15.
After exhausting a complaint with the Office of Special Counsel (OSC),
see, e.g., IAF, Tab 5 at 73-86, the appellant filed the instant IRA appeal, IAF,
Tab 1. She asserted that her December 2015 disclosure regarding the SWE
vacancy was protected, as was her referral of the matter to OIG. E.g., IAF,
Tab 55 at 2; RAF, Tab 13 at 4. She further asserted that the agency engaged in
retaliatory activities, IAF, Tab 5 at 5-6, which she ultimately identified as the
following: (1) the February 2016 “Letter of Expectations”; (2) the March 2016
detail to a nonsupervisory position; (3) the SWE nonselection; and (4) the
proposed removal, IAF, Tab 55 at 2; RAF, Tab 13 at 4.
The administrative judge developed the record and held a 3-day hearing
before ordering corrective action for the proposed removal, but denying
corrective action for the other alleged personnel actions. ID at 2, 40-41. In doing
so, she first made a number of credibility findings. ID at 19-26. The
administrative judge then concluded that the appellant met her burden of proving
that she engaged in activity protected by 5 U.S.C. § 2302(b)(8) and (b)(9), and
4 While all the circumstances surrounding this transfer are not readily apparent to us,
and the appellant does argue that her decision to transfer was involuntary, there appears
to be no dispute that the appellant applied for and accepted this lower -graded position
in a different city. See ID at 2, 15, 40-41; IAF, Tab 44 at 33; PFR File, Tab 1 at 9-10.
6
that protected activity was a contributing factor in the alleged personnel actions.
ID at 29-33. Finally, the administrative judge found that the agency failed to
prove that it would have proposed the appellant’s removal in the absence of her
protected activity, ID at 33-35, but did prove that it would have taken each of the
other actions at issue, ID at 35-39.
The appellant has filed a petition for review. Callahan v. Department of
Veterans Affairs , MSPB Docket No. CH-1221-17-0152-W-2, Petition for Review
(PFR) File, Tab 1. The agency has filed a response, and the appellant has
replied.5 PFR File, Tabs 3-4.
ANALYSIS
The administrative judge properly denied the appellant’s motion in limine.
Below, the appellant filed a motion in limine, asking that the administrative
judge preclude the agency from introducing evidence in support of her proposed
removal. IAF, Tab 54 at 4. She argued that because the deciding official did not
sustain the underlying specifications, charge, or removal, collateral estoppel
precluded the agency from attempting to establish reasons in support of the
proposed removal. Id. at 4-5. The administrative judge denied the motion. IAF,
Tab 55 at 3-4. The appellant later filed the motion a second time, with additional
arguments and references to res judicata. RAF, Tab 8 at 4-9. But the
5 After her reply, the appellant filed a motion to remand the appeal for an addendum
proceeding to determine damages, arguing that the lack of a quorum at the Board
unduly prejudices her right to due process. PFR File, Tab 5. That motion is denied. As
we explain below, in the section of this order entitled, “Notice to the Appellant
Regarding Your Right to Request Consequential and/or Compensatory Damages,” the
appellant may file a motion for such damages with the Central Regional Office. See
5 C.F.R. § 1201.204(e)(1) (recognizing that a motion for damages generally must be
filed with the regional or field office that issued the initial decision). Separately, we
note that the appellant’s motion refers to not only consequential and compensatory
damages, but also liquidated damages. PFR File, Tab 5 at 4-5. Liquidated damages are
not authorized in an IRA appeal such as this. See 5 C.F.R. §§ 1201.201(e), 1201.202(d)
(recognizing that the Board has the authority to award liquidated damages when an
agency willfully violates an appellant’s veterans’ preference rights under the Veterans
Employment Opportunities Act of 1998).
7
administrative judge denied the motion once more, along with a request for
interlocutory appeal. RAF, Tab 13 at 5-8.
On review, the appellant argues that the administrative judge’s denial of
her motion “constitute[d] an error of law which directly affected the outcome.”
PFR File, Tab 1 at 20-24. She relies on the principles of res judicata and
collateral estoppel. Id. As we explain below, her arguments on this point are
unavailing.
While the appellant summarily asserts that the denial of her motion directly
affected the outcome of her appeal, PFR File, Tab 1 at 20, that is neither apparent
nor explained in her petition. We note that the proposed removal was the only
personnel action for which the administrative judge ordered corrective action.
Thus, assuming any error by the administrative judge, the appellant failed to
prove that such error was harmful. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984) (recognizing that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
In any event, collateral estoppel is inapplicable here. Collateral estoppel,
or issue preclusion, is appropriate when: (1) the issue is identical to that involved
in the prior action; (2) the issue was actually litigated in the prior action; (3) the
determination on the issue in the prior action was necessary to the resulting
judgment; and (4) the party against whom the issue preclusion is sought had a full
and fair opportunity to litigate the issue in the prior action. McNeil v.
Department of Defense , 100 M.S.P.R. 146, ¶ 15 (2005). Here, the issue before
the agency’s deciding official was whether to remove the appellant for the
misconduct identified in her proposed removal. As discussed further below, the
issues before the Board include whether the agency would have proposed her
removal or taken other personnel actions leading up to her proposed removal in
the absence of the appellant’s protected activity. Those are not identical issues,
thereby failing to satisfy the first element of collateral estoppel. Moreover, the
8
agency’s decision to retain the appellant, rather than remove her, does not satisfy
the “actually litigated” element. Cf., Kavaliauskas v. Department of the
Treasury, 120 M.S.P.R. 509, ¶¶ 6-8 (2014) (explaining that a judicial
determination is necessary to satisfy the “actually litigated” requirement).
While the appellant argues that Board precedent supports her collateral
estoppel arguments, PFR File, Tab 1 at 21-22, it does not. The appellant cites
Payer v. Department of the Army , 19 M.S.P.R. 534, 536-38 (1984), but the Board
in that case affirmed, in part, the application of collateral estoppel to a prior
Board proceeding. The appellant then cited Trueheart v. Department of the Army ,
15 M.S.P.R. 191 (1983).6 But the Board neither mentioned nor applied the
doctrine of collateral estoppel in that case. Finally, the appellant unpersuasively
refers, without citation, to a decision by the Administrator of the Drug
Enforcement Administration concerning res judicata. PFR File, Tab 1 at 22-23.
That doctrine is different than collateral estoppel, but similarly inapplicable. See
generally Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 336-38 (1995)
(discussing both collateral estoppel and res judicata, and explaining that res
judicata applies when, as relevant here, there was a valid final judgment on the
merits).
We will not consider alleged personnel actions that the appellant failed to
properly raise below.
When the appellant first filed her appeal, the administrative judge issued a
jurisdictional order that, inter alia, asked the appellant to identify the alleged
retaliatory personnel actions. IAF, Tab 3 at 7. In both her initial pleading and
her response to the jurisdictional order, she listed seven such actions. IAF, Tab 1
at 11-12, Tab 5 at 5-6. We summarize them as (1) a December 2015 email from
the Director; (2) a January 2016 accusation of wrongdoing, which was an
apparent reference to the “Expectations of Supervisors and Employees” letter;
6 The appellant’s brief contains a typo in the citation to Trueheart, but it is evident to
which case she was referring. See PFR File, Tab 1 at 21.
9
(3) the February 2016 “Letter of Expectations”; (4) her February 2016
nonselection for the SWE vacancy; (5) the March 2016 detail to a nonsupervisory
position; (6) the October 2016 proposed removal; and (7) the forwarding of the
proposed removal to the facility to which the appellant transferred. IAF, Tab 1
at 11-12, Tab 5 at 5-6.
In a subsequent prehearing submission, the appellant pared down the
alleged retaliatory personnel actions. Rather than the seven previously identified,
she listed: (1) the February 2016 “Letter of Expectations”; (2) the removal of her
supervisory duties; (3) the March 2016 detail; (4) the SWE nonselection; and
(5) the October 2016 proposed removal. IAF, Tab 36 at 6-7.
After the appellant reduced the alleged personnel actions from seven to
five, the administrative judge held a prehearing conference and issued an order
summarizing the issues. IAF, Tab 55. That order identified four alleged
personnel actions: (1) the February 2016 “Letter of Expectations”; (2) the
March 2016 detail, effectively removing her supervisory responsibilities; (3) the
SWE nonselection; and (4) the October 2016 proposed removal. Id. at 2. In
short, the administrative judge identified the same five personnel actions the
appellant identified, combining the removal of supervisory duties and detail to a
nonsupervisory assignment into a single personnel action. Compare IAF, Tab 36
at 6-7, with IAF, Tab 55 at 2.
The administrative judge’s prehearing summary and order invited the
parties to identify any necessary corrections, and warned that if there were none,
the parties would be bound to the issues identified in the prehearing summary.
IAF, Tab 55 at 5. Although the parties responded with arguments about which of
the varying postings for the SWE vacancy were properly before the Board, the
appellant did not identify any additional alleged retaliatory personnel actions
beyond those identified in the prehearing summary. IAF, Tabs 56-57. In fact, the
appellant indicated that the administrative judge correctly identified the four
alleged personnel actions at issue. IAF, Tab 57 at 5. The administrative judge
10
later held another prehearing conference and issued another prehearing summary
with the same four personnel actions, to which the appellant again submitted no
corrections, despite having the opportunity to do so. RAF, Tab 13 at 4, 13.
On review, the appellant has listed the seven alleged retaliatory personnel
actions that she first identified, rather than the four adjudicated by the
administrative judge. PFR File, Tab 1 at 13-14. She then proceeds to discuss
additional alleged actions, including a hostile work environment, involuntary
relocation, and the underlying investigation that preceded her proposed removal.
PFR File, Tab 1 at 14-17, 19-20. To the extent that the appellant is suggesting we
should find that these amounted to additional retaliatory personnel actions for the
Board to consider and order corrective action, we will not do so because she
failed to properly raise them below. See Crowe v. Small Business Administration ,
53 M.S.P.R. 631, 634-35 (1992) (explaining that an issue is not properly before
the Board when it is not included in the administrative judge’s memorandum
summarizing the prehearing conference, which states that no other issues will be
considered, unless either party objects); see also Durr v. Department of Veterans
Affairs, 119 M.S.P.R. 195, ¶ 16 n.2 (2013) (applying this principle in the context
of a new theory of alleged whistleblower retaliation that was not among the issues
considered before the administrative judge, even if that theory had been
exhausted before OSC).
We modify the initial decision to find that the Board lacks jurisdiction over the
appellant’s Letter of Expectations.
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),
the Board has jurisdiction over an IRA appeal if the appellant has exhausted her
administrative remedies before OSC and makes nonfrivolous allegations that
(1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D), and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
11
5 U.S.C. § 2302(a). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016). Once an appellant establishes jurisdiction over her IRA appeal, she is
entitled to a hearing on the merits of her claim, which she must prove by
preponderant evidence. Id. If the appellant proves that her protected disclosure
or activity was a contributing factor in a personnel action taken against her, the
agency is given an opportunity to prove, by clear and convincing evidence, that it
would have taken the same personnel action in the absence of the protected
disclosure. Id. (citing 5 U.S.C. § 1221(e)(1)-(2)).
The administrative judge found that the appellant presented a prima facie
case of reprisal for her first alleged personnel action—the Letter of Expectations
—without deciding whether that Letter of Expectations constituted a covered
personnel action under 5 U.S.C. § 2302(a)(2)(A). ID at 31-32, 37 n.10. We find
that the appellant failed to meet her jurisdictional burden regarding the Letter of
Expectations because she failed to nonfrivolously allege that it constitutes a
cognizable personnel action. Accordingly, we vacate the administrative judge’s
findings to the extent that they assumed that the Letter of Expectations was a
covered personnel action and shifted the burden to the agency regarding that
matter.7 ID at 37-39 & n.10; see Schmittling v. Department of the Army ,
219 F.3d 1332, 1337 (Fed. Cir. 2000) (finding that the Board may not decide the
merits of an IRA appeal if it lacks jurisdiction).
In reaching this conclusion, we recognize that a personnel action includes
disciplinary or corrective action. 5 U.S.C. § 2302(a)(2)(A)(iii). An agency may
not threaten to take such action in reprisal for whistleblowing. 5 U.S.C.
§ 2302(b)(8). Campo v. Department of the Army , 93 M.S.P.R. 1, ¶ 5 (2002). The
appellant’s Letter of Expectations contained no such threat. In short, the Letter
of Expectations indicated that the only subordinate who filed an EEO complaint
7 Because we find that the appellant failed to prove that the Letter of Expectations was a
covered personnel action, we need not address her arguments concerning whether the
agency proved that it would have issued the letter in the absence of her protected
activity. See PFR File, Tab 1 at 27.
12
against the appellant would be temporarily assigned outside her chain of
command for administrative matters; instructed the appellant to cease any
behavior that could be misconstrued as discriminatory or retaliatory and to
complete at least four training requirements over the following 6 months;
assigned her a mentor with whom she would have regular meetings; and indicated
that she should explore options to enhance communication and she would have
bi-weekly progress meetings with her direct supervisor. IAF, Tab 5 at 106-07.
The Letter of Expectations did not conclude that the appellant had engaged in
wrongdoing, nor did it warn of potential consequences. Id.; see Campo,
93 M.S.P.R. 1, ¶¶ 6-8 (finding that the Board had jurisdiction over a
memorandum of warning when, inter alia, the memorandum asserted that the
employee had already been insubordinate and threatened that additional
insubordination would result in her being charged, disciplined, and possibly
removed). Under these circumstances, we find no basis for determining that the
appellant established jurisdiction over the Letter of Expectations as a threatened
disciplinary or corrective action within the meaning of section 2302.
Section 2302 also defines a “personnel action” to include, inter alia, “any
[] significant change in duties, responsibilities, or working conditions.” 5 U.S.C.
§ 2302(a)(2)(A)(xii); Skarada v. Department of Veterans Affairs , 2022 MSPB 17,
¶ 14. Although the “significant change” personnel action should be interpreted
broadly to include harassment and discrimination that could have a chilling effect
on whistleblowing or otherwise undermine the merit system, only agency actions
that, individually or collectively, have practical and significant effects on the
overall nature and quality of an employee’s working conditions, duties, or
responsibilities will be found to constitute a personnel action covered by
section 2302(a)(2)(A)(xii). Id., ¶ 16. But again, we find no basis for determining
that the appellant established jurisdiction over the Letter of Expectations within
the meaning of section 2302. She did not nonfrivolously allege that the Letter of
Expectations, or the actions it contemplated, did or would have had a practical
13
and significant effect on the overall nature and quality of her working conditions,
duties, or responsibilities.
The appellant is entitled to corrective action for her proposed removal but no
other alleged personnel actions.
When an appellant establishes jurisdiction over her IRA appeal, she is
entitled to a hearing where she must establish a prima facie case of reprisal.
Supra ¶ 22. If she does so, the agency is given an opportunity to prove, by clear
and convincing evidence, that it would have taken the same personnel action in
the absence of the protected disclosure or activity. Id.
To determine whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
protected activity, the Board generally will consider the following factors:
(1) the strength of the agency’s evidence in support of its action; (2) the existence
and strength of any motive to retaliate on the part of the agency’s officials who
were involved in the decision; and (3) any evidence that the agency takes similar
actions against employees who did not engage in protected activity but who are
otherwise similarly situated. See Carr v. Social Security Administration ,
185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board must consider all pertinent
record evidence in making this determination. Whitmore v. Department of Labor ,
680 F.3d 1353, 1368 (Fed. Cir. 2012). The Board does not view these factors as
discrete elements, each of which the agency must prove by clear and convincing
evidence. Phillips v. Department of Transportation , 113 M.S.P.R. 73, ¶ 11
(2010). Rather, the Board will weigh the factors together to determine if the
evidence is clear and convincing as a whole. Id.
The administrative judge found that the appellant met her burden of
presenting a prima facie case of reprisal for each of the four alleged personnel
actions before us—the Letter of Expectations, the nonsupervisory detail, the SWE
nonselection, and the proposed removal. ID at 29-33. She then found that the
agency failed to prove that it would have proposed the appellant’s removal in the
14
absence of her protected activity—a protected disclosure and her complaint to
OIG—but did prove that it would have taken the other actions at issue, ID
at 33-39.
We discern no basis for disturbing the initial decision and ordering
corrective action for anything other than the appellant’s proposed removal.
The proposed removal
Although neither party has disputed the administrative judge’s finding that
the agency failed to prove it would have proposed the appellant’s removal absent
her protected activity, we make the following observations to the extent that they
are relevant for purposes of those personnel actions that are disputed. First, the
administrative judge recognized that nonwhistleblowers implicated in the EEO
complaint and investigation appeared to receive favorable treatment when
compared to the appellant, because they were not disciplined. ID at 33-34.
Second, she recognized that two individuals in particular—the Acting AAD and
the Director—had a strong motive to retaliate against the appellant, because her
protected activity directly challenged their decision-making, while the Acting AD
and others were at least aware of the protected activity. ID at 9-10, 21, 34, 39;
see, e.g., IAF, Tab 5 at 102-03, Tab 37 at 46-47. To illustrate the point, the
record includes emails in which the Director called the appellant’s disclosure
unfounded and concerning, and asked why the appellant would “want to ruin [his]
reputation.” IAF, Tab 5 at 102-03. Emails from the Acting AAD called the
appellant’s disclosure a “false allegation” and “classic bullying.” IAF, Tab 37
at 45-46.
The appellant’s nonsupervisory detail assignment
Turning to the nonsupervisory detail, to which the agency assigned the
appellant “pending the outcome of an ongoing investigation” into the allegations
of discrimination against her, the administrative judge determined that despite the
aforementioned motive to retaliate, the evidence in support of the detail
15
assignment was also strong, and the agency met its burden. ID at 37-39; see IAF,
Tab 5 at 117. She recognized that because of the EEO complaint against the
appellant, the agency had a responsibility to investigate the matter. ID at 37.
And based on the early results of that investigation, the Acting AAD
recommended that the appellant be reassigned to a nonsupervisory position, to
which the Director agreed, but requested Human Resources review for
appropriateness before proceeding. ID at 6, 37-38; see IAF, Tab 12 at 81-82.
Most notably, this occurred in November 2015, prior to the appellant’s protected
activity and any motive to retaliate, notwithstanding that the appellant’s actual
reassignment to the nonsupervisory detail occurred after her protected activity
and once these officials had a strong motive to retaliate.8 ID at 37-38; IAF, Tab 5
at 87-88.
While the appellant highlighted that her detail to the nonsupervisory
position was not effectuated until after her protected activity, the administrative
judge found the delay inconsequential. She concluded that the delay between
approval and effectuation—with the appellant’s protected activity falling in
between—was reasonably explained by the deliberation of relevant parties and
other circumstances at hand, rather than some change in circumstance attributable
to parties’ retaliatory motive. ID at 38-39. Most significantly, placing the
appellant in the nonsupervisory detail was far less pressing until just days before
8 We considered whether this timing requires that we overturn the administrative
judge’s findings regarding the nonsupervisory detail assignment and the contributing
factor requirement, but find that it does not. See generally Sherman v. Department of
Homeland Security , 122 M.S.P.R. 644, ¶ 9 (2015) (finding that an appellant presented
nonfrivolous allegations that his protected activity was a contributing factor in his
performance appraisal when relevant officials learned of that protected activity after
first issuing the performance appraisal, but before completing the performance appraisal
months later). While the Acting AAD and Director did not yet have a motive to
retaliate when they first recommended removing the appellant’s supervisory duties, they
did have a motive to retaliate throughout much of the subsequent deliberations with
other relevant parties about the same, including the Acting AD, who placed the
appellant in the nonsupervisory detail. See, e.g., IAF, Tab 5 at 117, Tab 48 at 48-51,
Tab 50 at 37.
16
the agency did so because the appellant’s subordinate who filed the EEO
complaint against the appellant was on maternity leave from November 2015 to
March 2016. ID at 6, 13, 39.
We find the appellant’s arguments on review unpersuasive and decline to
disturb the administrative judge’s findings regarding the detail.
Social Work Executive nonselection
The administrative judge recognized that several officials knew of the
appellant’s protected activity but two in particular—the Acting AAD and the
Director—had a strong motive to retaliate against her. ID at 9-10, 21, 34, 39; see,
e.g., IAF, Tab 5 at 102-03, Tab 37 at 46-47. The former solicited for the SWE
vacancy and was otherwise involved in the associated announcements, while the
latter was the selecting official for the SWE vacancy. See ID at 7, 36; see also,
e.g., IAF, Tab 5 at 89-90, Tab 38 at 14-15. Yet, the administrative judge
concluded that the agency met its burden of proving that the appellant’s
nonselection would have occurred in the absence of her protected activity. ID
at 35-36.
The administrative judge noted that because the SWE vacancy was posted
three different times to account for multiple changes to the announcement, there
were three different interview panels. ID at 36. She recognized that with each,
including one that convened prior to the appellant’s protected activity, the panel
ranked the same individual first, while ranking the appellant either third or fourth.
Id. The selecting official simply followed the recommendation of the interview
panels, selecting that top-ranked individual for the SWE position over the
appellant and others. Id. The administrative judge further noted that two
individuals—one from each of the interview panels that convened after the
appellant’s protected activity—testified regarding the reasons for their rankings,
and the administrative judge found their testimony credible. ID at 25, 36. As
previously discussed, the candidate they consistently ranked first had served as
the acting SWE over the years prior. ID at 7; see, e.g., IAF, Tab 9 at 101-03.
17
Here, the administrative judge found that the agency met its burden that it
would have taken the same action in the absence of the appellant’s protected
activity. On review, the appellant has not presented any persuasive argument to
the contrary. She has not, for example, directed us to any evidence supporting
her selection over the candidate who was selected and consistently ranked the
highest of all candidates, both before and after the appellant’s protected activity.
In fact, the appellant’s arguments on review neither discuss nor reference either
her own qualifications or those of the selected candidate.
The administrative judge did not err by failing to implement the referral provision
of 5 U.S.C. § 1221(f)(3).
Section 1221(f)(3) of Title 5 of the U.S. Code provides as follows: “[i]f,
based on evidence presented to it under this section, the [Board] determines that
there is reason to believe that a current employee may have committed a
prohibited personnel practice, the Board shall refer the matter to [OSC]” for
appropriate action. 5 U.S.C. § 1221(f)(3). On review, the appellant argues that
the administrative judge failed to comply with that provision. PFR File, Tab 1
at 17-18. We disagree.
The Board refers matters to OSC pursuant to section 1221(f)(3) after a
decision has become final. See 5 C.F.R. § 1201.113(f). Therefore, had the
appellant not filed a petition for review, the initial decision would have become
final in July 2018, and the matter would have then been referred to OSC. See ID
at 42. But because the appellant did file a petition for review, the initial decision
did not become final at that time. Instead, the instant final order renders the
matter ripe, and the Board will now fulfill its obligation under section 1221(f)(3).
ORDER
We ORDER the agency to purge all copies of the appellant’s proposed
removal from agency records. See Kerr v. National Endowment for the Arts ,
18
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
19
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that
while any Special Counsel investigation related to this decision is pending, “no
disciplinary action shall be taken against any employee for any alleged prohibited
activity under investigation or for any related activity without the approval of the
Special Counsel.” 5 U.S.C. § 1214(f).
NOTICE OF APPEAL 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
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.
20
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
21
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
22
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.10 The court of appeals must receive your petition for
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
23
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.
24
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Callahan_Janet_C_CH-1221-17-0152-W-2__Final Order.pdf | 2023-12-28 | JANET C. CALLAHAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-17-0152-W-2, December 28, 2023 | CH-1221-17-0152-W-2 | NP |
2,581 | https://www.mspb.gov/decisions/nonprecedential/Bolden_Michael_D_DC-844E-20-0846-I-1__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL DEWAYNE BOLDEN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-844E-20-0846-I-1
DATE: December 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
A. Brian Henson , Decatur, Georgia, for the appellant.
Albert Pete Alston, Jr. , and Moraima Alvarez , 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 his application for Federal Employees’ Retirement System (FERS)
disability retirement. For the reasons discussed below, we GRANT 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
appellant’s petition for review, REVERSE the initial decision, and ORDER OPM
to grant the appellant’s disability retirement application.
BACKGROUND
The appellant was a Police Officer with the Department of the Air Force
Security Forces. Initial Appeal File (IAF), Tab 6 at 27, 32, 61. On March 2,
2020, he filed an application for disability retirement benefits under FERS,
asserting shoulder, ankle, knee, and back injuries, as well as depression. Id.
at 30-31. OPM denied his application in an initial decision and, after the
appellant requested reconsideration, affirmed its finding in a final reconsideration
decision. Id. at 5-9, 12-13, 16-21. The appellant appealed this decision to the
Board. IAF, Tab 1. After the appellant withdrew his request for a hearing, IAF,
Tab 14 at 4, the administrative judge affirmed OPM’s final decision, IAF, Tab 24,
Initial Decision (ID) at 1. The appellant has filed a petition for review, and OPM
has responded. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
To be eligible for a disability retirement annuity under FERS, an appellant
must establish the following elements by preponderant evidence2: (1) he
completed at least 18 months of creditable civilian service; (2) while employed in
a position subject to FERS, he became disabled because of a medical condition,
resulting in a deficiency in performance, conduct, or attendance, or, if there is no
such deficiency, the disabling medical condition is incompatible with either
useful and efficient service or retention in the position; (3) the disabling medical
condition is expected to continue for at least 1 year from the date that the
application for disability retirement benefits was filed; (4) accommodation of the
disabling medical condition in the position held must be unreasonable; and (5) the
employee did not decline a reasonable offer of reassignment to a vacant position.
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).
3
Chavez v. Office of Personnel Management , 111 M.S.P.R. 69, ¶ 6 (2009). The
administrative judge found that the appellant established the first element only.
ID at 4-6. The parties do not challenge this finding on review, and we see no
reason to disturb it.
The administrative judge improperly found that the appellant’s preexisting
conditions disqualified him from disability retirement; instead, we find that the
appellant proved that his medical conditions were incompatible with either useful
and efficient service or retention in the position.
The administrative judge found that the appellant’s disabling conditions
“long preceded” his employment with the Department of the Air Force, and thus,
he did not become disabled while in a position subject to FERS. ID at 11-13.
Because the administrative judge found the preexisting conditions were
disqualifying, he did not address whether the appellant’s conditions were
incompatible with useful and efficient service or retention in the Police Officer
position. The appellant on review argues that, although his conditions predated
his employment, those conditions worsened during his employment in positions
covered by FERS such that he became no longer capable of performing his duties.
PFR File, Tab 1 at 5, 8-9. For the following reasons, we agree with the appellant.
The appellant’s preexisting conditions do not disqualify him from disability
retirement benefits.
The date of the initial diagnosis or onset of a potentially disabling medical
condition is not dispositive of whether an appellant became disabled while in a
position subject to FERS. 5 C.F.R. § 844.103(a)(2). As the administrative judge
noted in the initial decision, an appellant may be granted a disability annuity only
if he was able to perform successfully at the time of entry into a position subject
to FERS and became disabled as a result of the progression of the disease. ID
at 13 (discussing Johnston v. Office of Personnel Management , 57 M.S.P.R. 590,
596 n.7 (1993).
The appellant’s conditions, including his ankle and back pain and
depression, date back to an injury sustained while he was in the military in 1998.
4
IAF, Tab 7 at 4, 162, Tab 19 at 4-5. In the initial decision, the administrative
judge noted that the appellant served in a variety of appointments starting in April
2016, including term appointments, all of which were positions that were subject
to FERS. ID at 4-5. It does not appear that the appellant’s medical conditions
were disabling in the 2016-2018 timeframe.3 Indeed, the appellant’s performance
appraisal, which covered the time frame of April 1, 2017, to March 31, 2018, was
fully successful. IAF, Tab 6 at 60-67.
The appellant proved that his disabling conditions were incompatible with
useful and efficient service or retention in the Police Officer position.
An appellant must also demonstrate that his disabling condition resulted in
a deficiency in performance, conduct, or attendance, or, if there is no such
deficiency, that the disabling medical condition is incompatible with either useful
and efficient service or retention in the position.4 Chavez, 111 M.S.P.R. 69, ¶ 6.
An appellant can establish that his medical conditions were incompatible with
useful and efficient service by showing the conditions were inconsistent with
working in general, working in a particular line of work, or working in a
particular type of setting. Henderson v. Office of Personnel Management ,
117 M.S.P.R. 313, ¶ 16 (2012). A determination on eligibility for disability
retirement should take into account all competent medical evidence, including
3 To the contrary, the appellant’s disability retirement application indicated that he
became disabled in September 2019. IAF, Tab 6 at 30.
4 There is no evidence that the appellant had a conduct or attendance deficiency. IAF,
Tab 6 at 28. However, the record is inconsistent regarding whether the appellant had a
performance deficiency. The supervisor’s statement accompanying his disability
retirement application, dated March 4, 2020, certified that the appellant’s performance
had become less than fully successful in September 2019 and noted that he was placed
in an administrative function at this time. Id. at 27-28. Yet, the appellant’s final
performance appraisal—dated March 25, 2020, seemingly signed by the same
supervisor, and covering the time period of April 1, 2019, to March 27, 2020—rated the
appellant as fully successful overall, although he was not rated in certain performance
elements. IAF, Tab 12 at 4-14. We need not resolve whether the appellant had a
performance deficiency because, as set forth below, we find that his medical conditions
were incompatible with useful and efficient service or retention in this Police Officer
position.
5
both objective clinical findings and qualified medical opinions based on the
applicant’s symptoms. Chavez, 111 M.S.P.R. 69, ¶ 7. In addition, the
determination should include consideration of the applicant’s own subjective
evidence of disability and any other evidence of the effect of his condition on his
ability to perform in the position he last occupied. Id. An appellant’s own
subjective complaints of pain and inability to work must be seriously considered
and are entitled to great weight, particularly when supported by competent
medical evidence. Selby v. Office of Personnel Management , 102 M.S.P.R. 217,
¶ 15 (2006).
Among his duties as a Police Officer, the appellant “had full powers of
apprehension and detention,” he served as a dispatcher, and he had to perform the
full range of base entry collection duties and ground defense functions. IAF,
Tab 6 at 51-54. The physical demands of the position included “regular and
recurring physical exertion such as running in pursuits or emergency responses,
long periods of standing, walking, bending, stooping, reaching, crawling, and
similar activities.” Id. at 57. The appellant was required to respond to alarms
and walk foot patrols in and around buildings as well as have the physical ability
and strength to pursue and detain uncooperative suspects and to employ “infantry/
SWAT” small unit tactics involving firing and maneuvering with rapid advancing
movement between defensive positions. Id. at 57-58.
As stated by the appellant in his declaration made under penalty of perjury
and his disability retirement application, starting in approximately September
2019, his medical conditions rendered him unable to perform the duties required
of him as a Police Officer.5 IAF, Tab 6 at 30, Tab 19 at 4-5. He explained that
his shoulder, back, knee, and ankle pain worsened to the point that he experienced
significant pain throughout much of his body. IAF, Tab 19 at 4. He had shoulder
surgery in October 2019 to alleviate some pain, but the symptoms persisted,
5 The Board is not limited to a review of the record before OPM in adjudicating a
disability retirement appeal . Cook v. Office of Personnel Management , 31 M.S.P.R.
683, 686 (1986).
6
despite being prescribed multiple medications. Id. Regarding his depression, he
stated that he has difficulty concentrating and sleeping, fatigue, severe anxiety,
panic attacks, and feelings of hopelessness. Id. He further stated that he
experienced suicidal ideation at times, and he had attempted to drive his car into a
tree on multiple occasions and had overdosed on his medications as recently as
2019. Id. Although he took various medications, they were not successful in
eliminating his symptoms of depression. Id.
Specifically, he noted that, because of “worsening chronic pain,” he could
not perform in a physical conflict with a potential perpetrator or properly defend
himself or others. Id. at 5. He further explained that he could not stand or run
for extended periods of time, and he was prevented from being able to bend or lift
any significant weight. Id. Moreover, his ability to properly use his firearm was
compromised by his pain, which limited his ability to maintain prone or other
firing postures. Id. He further asserted that his depression limited his ability to
focus and concentrate on potential dangers, and his inability to recognize threats
could harm agency personnel or property. Id. Furthermore, his depression
caused fatigue and sleep difficulties, limiting his energy to respond to potential
threats, and his anxiety and panic attacks could render him completely unable to
respond at all. Id. He indicated that he had to request a light duty assignment to
ensure his safety and the safety of others. Id.
The appellant’s assertions are supported by the medical evidence. The
evidence demonstrates that the appellant made numerous visits to health care
providers in 2019 and 2020 for pain in his shoulders, back, and upper and lower
limbs. E.g., IAF, Tab 7 at 4-5, 27-28, 35-38, 48-49, 61-62, 79, 81-86, 91-93,
102-04, 121-23. The appellant reported that he had to take frequent breaks at
work, he had difficulty walking and standing for extended periods of time, and
the pain interfered with his sleep. Id. at 103-04, 122. In August 2019, his doctor
noted a limited range of motion in the appellant’s back and left ankle. Id. at 101.
In September 2019, the same month his supervisor noted that his performance
7
became unacceptable, the appellant saw his doctor for increased left shoulder
pain, stating that it was “worsening now and getting real weak” and that it hurt
more with activity. Id. at 90. At this same time, the appellant was given a
physical and he was placed on light duty which prohibited him from heavy lifting,
patrolling, apprehending suspects, running, and prolonged standing and walking.
IAF, Tab 23 at 28. He had trouble picking up his daughter, and the pain was
worse with certain movements. Id. at 93. In November 2019, his doctor believed
his shoulder pain was caused by a “full-thickness rotator cuff tear.” Id. at 79. In
January 2020, the appellant went to the emergency room for lower back pain and
was referred to physical therapy. Id. at 48-49. He was instructed not to lift
anything and to be on bed rest for 14 days. Id. at 49. The appellant was seen in
February 2020 for a mental health examination to address his recurrent
depression; the psychiatrist noted that his mood was “a little better” but he was
still “in a major depressive episode.” Id. at 4-5, 43-48. His doctor noted that the
appellant’s major depressive episode could “significantly impact [his] ability to
focus, in addition to lowering energy level, motivation, reliability, and ability to
optimally perform his job functions.” Id. at 5, 47-48. From a non-psychiatric
perspective, given his back and ankle pain, his doctor recommended no heavy
lifting. Id. at 5, 47. In March 2020, the appellant again saw his doctor, noting
that the medicine helped some, but “[does not] work when [the pain] gets bad”
and does not work on his back. Id. at 33. His doctor noted a limited range of
motion for his back, and that most discomfort occurred with bending forward and
stretching. Id. at 34. The appellant rated his total pain at 6 out of 10, and he
rated the pain’s interference with his usual activity at 7 out of 10. Id. at 36.
Later that month, the appellant was suicidal due to his considerable pain. Id.
at 27-28. The appellant was prescribed numerous pain and anti-depressant
medications throughout this time.
We find the appellant’s medical documentation combined with his written
declaration and supervisor’s statement sufficiently demonstrate that his medical
8
conditions, including the shoulder, ankle, knee, and back injuries, and depression,
are incompatible with working as a Police Officer. Indeed, an appellant “may
prevail [in a disability retirement application] based on medical evidence that
consists of a medical professional’s conclusive diagnosis, even if based primarily,
as here, on his/her analysis of the [appellant’s] own descriptions of symptoms and
other indicia of disability.” Vanieken-Ryals v. Office of Personnel Management ,
508 F.3d 1034, 1041 (Fed. Cir. 2007).
Moreover, an applicant for disability retirement benefits must establish the
extent to which his disability can or cannot be controlled. Doe v. Office of
Personnel Management , 109 M.S.P.R. 86, ¶ 20 (2008). In February 2020, the
appellant’s psychiatrist asserted that the appellant “is engaged in care here and
compliant with treatment.” IAF, Tab 7 at 4-5. Moreover, in March 2020, the
appellant noted that he takes various medications, but they do not always work.
Id. at 33. We find no evidence to suggest that the appellant’s treatment was
successful in returning him to a point where he was able to perform the duties of
his Police Officer position. Yoshimoto, 109 M.S.P.R. 86, ¶ 20. We therefore find
that the appellant proved by preponderant evidence that he is precluded from
useful and efficient service or retention in his position.
The appellant’s conditions are expected to last for at least 1 year from the date he
filed his disability retirement application.
The administrative judge appeared to have found that the appellant failed to
demonstrate that his conditions would last at least 1 year after his application for
disability retirement benefits. ID at 12. In addressing the issue, the
administrative judge merely noted that the appellant’s psychiatrist failed to
clearly state that the appellant’s limitations would continue for at least 1 year. Id.
The appellant challenges this finding on review, arguing that his conditions are
chronic and can last for an indeterminable period. PFR File, Tab 1 at 6-7. We
agree with the appellant.
9
Per the appellant’s psychiatrist, the appellant’s depression is recurrent.
IAF, Tab 7 at 5. In February 2020, she noted that the appellant was “still in a
major depressive episode that [was] starting to respond gradually to medication
treatment.” Id. Although she anticipated that he would continue to make
improvements with time, with an ultimate goal of remission, patients with a
diagnosis of recurrent depression are at risk of future depressive episodes. Id.
She also recommended no heavy lifting because of the appellant’s back and ankle
pain, which appears to be a recommendation for an indefinite amount of time. Id.
The medical evidence from March 2020, the same month in which he filed his
disability retirement application, shows that the appellant had suffered from lower
back pain for at least 2 years, which was described as chronic. Id. at 33.
Moreover, in his December 2020 declaration, made 9 months after his
application for disability retirement, the appellant explained the then-current and
recurring medical conditions from which he suffered. IAF, Tab 19 at 4-5. There,
he explained the ongoing pain in his ankles, knees, shoulder, and back, the
symptoms of his depression, and how these conditions precluded him from useful
and efficient service or retention in this Police Officer position. We find this
declaration, made 9 months into the 1-year time period, is strong evidence that
the appellant’s longstanding depression and chronic lower back pain and other
conditions would continue for the full year after his application for disability
retirement benefits. OPM asserts on review that the appellant failed to show that
his conditions would last for at least 1 year, and it cites to the psychiatrist report,
which discussed improvements to his depression over time. PFR File, Tab 3
at 12; IAF, Tab 4 at 4-5. This argument is not persuasive. The psychiatrist’s
discussion of the gradual improvement of his depressive symptoms and long-term
recovery does not address the appellant’s other physical conditions. Nor does it
outweigh the appellant’s statements made nearly 10 months later regarding his
chronic pain and ongoing depression and the impact of these conditions on his
daily life. IAF, Tab 19 at 4-5. Accordingly, we find that the evidence
10
sufficiently demonstrates that his conditions were expected to continue for at
least 1 year after the date of his application for disability retirement benefits. See
Moran v. Office of Personnel Management , 72 M.S.P.R. 138, 143 (1996) (finding
an applicant for disability retirement under the Civil Service Retirement System
(CSRS) established that the disability would last at least 1 year from the
application date where he had already been unable to work for several months at
the time of filing his application and remained unable to function for an extended
period after his filing).6
The appellant’s medical conditions could not reasonably be accommodated.
The administrative judge found that, based on the appellant’s light duty
assignment, accommodation of his conditions was possible and actually
accomplished. ID at 11. The appellant argues on review that his placement on
light duty was not a long-term accommodation because he was not performing all
of the essential functions of the Police Officer position. PFR File, Tab 1 at 7.
We agree with the appellant.
“Accommodation means a reasonable adjustment made to an employee’s
job or work environment that enables the employee to perform the duties of the
position.” 5 C.F.R. § 844.102. If there is an accommodation that enables the
employee to perform the critical or essential duties of his position of record, the
employee may not receive disability retirement. Chavez, 111 M.S.P.R. 69, ¶ 13.
Following a physical examination, the appellant was placed on light duty in
a “temporary administrative function” starting on or around September 30, 2019.7
IAF, Tab 6 at 28, Tab 23 at 28. In this light duty assignment, the appellant was
restricted from heavy lifting, patrolling, apprehending suspects, running, and
6 The legal standard for establishing a disabling condition is essentially the same under
both FERS and CSRS and thus applicable for purposes of this analysis. Alford v. Office
of Personnel Management , 111 M.S.P.R. 536, ¶ 10 (2009), aff’d, 361 F. App’x 131
(Fed. Cir. 2010).
7 The record reflects that the light duty assignment was expected to last until the end of
the appellant’s term appointment. IAF, Tab 6 at 28.
11
prolonged standing and walking. IAF, Tab 23 at 28. The light duty appears to be
an assignment as a dispatcher, one of the four primary duties of the Police Officer
position. IAF, Tab 6 at 53-54, Tab 19 at 5, Tab 23 at 20. In contrast to his other
duties as a Police Officer, the appellant’s position description reflects that the
dispatcher duties encompassed only 10% of his total duties. IAF, Tab 6 at 53-54.
Furthermore, per the supervisor’s statement, the appellant’s placement on light
duty was because he was “unable to perform the essential functions as a police
officer,” and placement on light duty would “enable him to be proactive.” Id.
at 28.
Yet, on March 6, 2020, two days after the supervisor statement was signed,
the appellant’s employing agency asserted that the appellant’s condition did not
appear to require accommodation, and reassignment was not necessary because
his performance was fully successful and there were no medical restrictions
keeping him from performing the critical duties of his position.8 Id. at 24-25.
We find that the appellant’s placement on light duty merely modified the
core functions of his position to where he only performed as a dispatcher and did
not perform the other critical or essential duties of his position, such as the full
scope of Police Officer duties, defending protection level resources, and base
entry controller duties. Id. at 53-54. The light duty assignment was, therefore,
not an accommodation. See Bracey v. Office of Personnel Management , 236 F.3d
1356, 1358, 1360-61 (Fed. Cir. 2001) (finding that Mr. Bracey’s light duty
assignment could not be considered an accommodation because he was not
performing the duties of his official Electronic Worker position, but rather,
performing duties of a lower-graded position);9 see also Selby, 102 M.S.P.R. 217,
¶ 16 (stating that when an employee is given a light duty assignment that does not
8 The agency also appeared to erroneously state that the appellant was occupying a
permanent position. Id. at 25, 43-44. Any such error does not affect the disposition of
this matter.
9 The court extended the rationale of Bracey to FERS cases in Marino v. Office of
Personnel Management , 243 F.3d 1375, 1377 (Fed. Cir. 2001).
12
enable him to continue performing the critical or essential elements of his official
position, Bracey compels a finding that he has not been afforded an
accommodation disqualifying his entitlement to a disability retirement annuity).
Given the numerous physical demands of the Police Officer position and the
appellant’s limitations due to his numerous medical conditions, we find that
accommodation would be unreasonable under the circumstances. See Balmer v.
Office of Personnel Management , 99 M.S.P.R. 199, ¶¶ 13-14, 17 (2005) (finding
that the detailed description of the physical requirements for sorting and
delivering mail demonstrated the impracticability of providing accommodation of
the appellant’s physical disabilities in the Letter Carrier position).
The appellant did not decline a reasonable offer of reassignment to a vacant
position.
The administrative judge noted that, based on the appellant’s 2020
performance appraisal fully successful rating, there was no requirement or
expectation that the appellant qualified for reassignment to a vacant position. ID
at 11. There is no evidence in the record to suggest that the appellant was offered
or declined such a reassignment. On the contrary, the evidence suggests that the
agency made no such reassignment efforts. See, e.g., IAF, Tab 6 at 25 (checking
“yes” to the statement, “[r]eassignment is not necessary because employee’s
performance is fully successful and there are no medical restrictions which keep
the employee from performing critical duties or from attending work altogether”).
Accordingly, we find that this element is sufficiently satisfied.
Conclusion
For the reasons described herein, we find that the appellant has proven by
preponderant evidence his entitlement to disability retirement benefits under
FERS.10
10 The appellant argues on review that because he was unable to perform the essential
duties because of his injuries and he was placed on light duty up until his termination,
he was effectively removed for medical inability to perform the essential duties of his
position. PFR File, Tab 1 at 8. Thus, he argues, he should receive the presumption of
13
ORDER
We ORDER OPM to grant the appellant’s disability retirement application
under FERS. OPM must complete this action no later than 20 days after the date
of this decision.
We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182(a).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
entitlement to disability retirement benefits. Id.; see e.g., Harris v. Office of Personnel
Management, 110 M.S.P.R. 249, ¶ 5 (2008) (finding that an appellant’s removal for
physical inability to perform shifts the burden to OPM to prove the appellant is not
entitled to disability retirement benefits). We agree with the administrative judge that
this argument is not persuasive. Indeed, the appellant separated from Federal service
pursuant to the expiration of his term appointment and not pursuant to a removal for
medical or physical inability to perform. ID at 5.
14
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 RIGHTS11
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
11 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
16
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
17
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.12 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
12 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
18
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Bolden_Michael_D_DC-844E-20-0846-I-1__Final Order.pdf | 2023-12-28 | MICHAEL DEWAYNE BOLDEN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-844E-20-0846-I-1, December 28, 2023 | DC-844E-20-0846-I-1 | NP |
2,582 | https://www.mspb.gov/decisions/nonprecedential/Brackenridge_Andrew_F_DC-0752-18-0195-I-1__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW F. BRACKENRIDGE,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DC-0752-18-0195-I-1
DATE: December 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew F. Brackenridge , Waldorf, Maryland, pro se.
Stephanie Liaw , 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 with prejudice his appeal of his demotion for failure to prosecute.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was employed by the Federal Bureau of Investigation as a
GS-15 Supervisory Management and Program Analyst. Initial Appeal File (IAF),
Tab 5 at 34. The agency asserted that a requirement of the appellant’s position
was maintaining a Top Secret-Sensitive Compartmented Information (TS-SCI)
security clearance and that to maintain this security clearance he was required to
have successfully completed a polygraph examination within the last 5 years.
IAF, Tab 5 at 20, Tab 7 at 1. On December 13, 2017, the agency demoted the
appellant to a GS-14 Management and Program Analyst position for his failure to
successfully pass the polygraph. IAF, Tab 5 at 20, 38.
On December 15, 2017, the appellant then filed this appeal regarding his
demotion. IAF, Tab 1. He alleged that at the time he took the polygraph, and
through the time of his filing of this appeal, he was suffering from post -traumatic
stress disorder (PTSD) as a result of traumatic events he experienced during his
deployment with the U.S. Navy in Afghanistan. Id. at 3.
On January 17, 2018, the administrative judge held a telephonic status
conference with the appellant and the agency representative. IAF, Tab 7 at 1. As
indicated in her summary of the conference, they reviewed the relevant dates in2
the appeal. Id. at 3. Prehearing submissions were due by February 14, 2018, a
telephonic prehearing conference was set for February 20, 2018, and the hearing
was scheduled for February 23, 2018. Id. Consistent with the schedule
articulated by the administrative judge, the appellant filed a prehearing
submission on February 11, 2018. IAF, Tab 8. The appellant failed, however, to
participate in the February 20, 2018 prehearing conference. See IAF, Tab 10.
On February 20, 2018, the administrative judge issued a notice regarding
the appellant’s failure to appear for the prehearing conference. Id. She stated
that the appellant failed to request a rescheduling of the prehearing conference or
otherwise advise of his unavailability. Id. at 1. She noted that the agency
representative indicated that she made attempts to reach the appellant via
telephone, and would attempt to reach the appellant via his work and home email
addresses. Id. at 1 & n.1. The administrative judge explained that the appellant’s
failure to comply with the Board’s orders could result in dismissal of the appeal
for failure to prosecute, and she rescheduled the prehearing conference for
February 21, 2018.1 Id. at 1. She further stated that if the appellant failed to
appear for the prehearing conference, she would order him to show cause why his
hearing should not be cancelled. Id. at 2. The appellant failed to appear for the
rescheduled prehearing conference. See IAF, Tab 11.
On February 21, 2018, the administrative judge issued an order to show
cause, explaining that the appellant had failed to appear for the rescheduled
prehearing conference and she cancelled the hearing previously scheduled for
February 23, 2018. IAF, Tab 11 at 1-2. The administrative judge noted that she
and the agency representative were unable to reach the appellant via his telephone
numbers of record, id. at 1 & n.1, and that the agency representative indicated
that she also advised the appellant of the rescheduling via email, id. at 1 n.2. The
administrative judge ordered the appellant to show cause why the appeal should
1 The appellant registered as an e-filer, IAF, Tab 1 at 2, and should therefore have
received the administrative judge’s notices the same day they were issued. 3
not be decided based on the written record. Id. at 2. The appellant’s response
was required by February 28, 2018. Id.
The administrative judge also issued a close of record order on
February 21, 2018, requiring the parties to submit any additional evidence and
argument by March 16, 2018. IAF, Tab 12. The appellant failed to respond to
the show cause order and failed to submit any additional evidence or argument.
On April 18, 2018, the administrative judge ordered the appellant to show
cause why his appeal should not be dismissed for failure to prosecute. IAF,
Tab 14. His response was required by April 30, 2018. Id. at 2. The appellant
failed to respond to the order. On May 1, 2018, the administrative judge
dismissed the appeal with prejudice for failure to prosecute. IAF, Tab 15, Initial
Decision (ID).
On May 29, 2018, the appellant filed a petition for review, asserting that he
had failed to comply with the administrative judge’s orders because his
service-connected PTSD and severe anxiety prevented him from prosecuting his
appeal. Petition for Review (PFR) File, Tab 1. The agency has filed a response.
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The sanction of dismissal with prejudice may be imposed if a party fails to
prosecute or defend an appeal. Turner v. U.S. Postal Service , 123 M.S.P.R. 640,
¶ 14 (2016), aff’d per curiam , 681 F. App’x 934 (Fed. Cir. 2017); 5 C.F.R.
§ 1201.43(b). The imposition of such a severe sanction may be used only when
necessary to serve the ends of justice, as when a party has failed to exercise basic
due diligence in complying with an order, or has exhibited negligence or bad faith
in his efforts to comply. Turner, 123 M.S.P.R. 640, ¶ 14. Failure to obey a
single order does not ordinarily justify dismissal for failure to prosecute. Id.
Nevertheless, absent a showing of abuse of discretion, the Board will not reverse
an administrative judge’s determination regarding the imposition of sanctions,4
including the sanction of dismissal with prejudice. Id. When an appellant’s
repeated failure to respond to multiple Board orders reflects a failure to exercise
basic due diligence, the imposition of the sanction of dismissal for failure to
prosecute has been found appropriate. Id., ¶ 15.
However, the Board has found good cause to reverse the dismissal of an
appeal for failure to prosecute when the appellant has proven that his failure to
respond to multiple Board orders was due to a mental health condition. Monley v.
U.S. Postal Service , 74 M.S.P.R. 27, 29-30 (1997). In Monley, the appellant
explained on review that he was unable to focus on his appeal because he had
been in and out of the hospital for stress -related illnesses and because of
medications he had been taking. Id. at 29. For support, he included a letter from
his physician who stated that the appellant had undergone inpatient and outpatient
medical treatment and was therefore unable to appropriately address his legal
affairs. Id.
Here, under penalty of perjury, the appellant states the following: (1) his
failure to respond to the administrative judge’s orders was due to his PTSD and
severe anxiety; (2) his involvement in this appeal has led to a significant decline
in his mental and physical health, causing him prostrating migraines, anxiety, and
increased sleep disturbances; and (3) he has had panic attacks whenever he has
had to deal with the appeal. PFR File, Tab 1 at 3, 6-7. Below, he also asserted
under penalty of perjury that his difficulties in attempting to secure legal
representation in this appeal exacerbated his anxiety and depression, causing him
to “shutdown,” and that he knew he could not adequately represent himself before
the Board because of his mental condition. IAF, Tab 8 at 3, 9.
The appellant’s statements made under penalty of perjury constitute
admissible evidence. See Paris v. Department of the Treasury , 104 M.S.P.R. 331,
¶ 18 n.2 (2006); 5 C.F.R. § 1201.14( l). However, the only other evidence the
appellant produced on this issue is a January 2018 letter from the Department of
Veterans Affairs stating that he had a service-connected disability of 90%. IAF,5
Tab 8 at 20. The letter does not identify what disability or disabilities the
appellant had nor how his disability affected him. Id.
Under these circumstances, we find that the appellant has failed to establish
good cause for failing to respond to the administrative judge’s multiple orders.
His allegations of poor mental health are unsupported by other record evidence,
particularly evidence showing the nature and severity of his condition or that he
was medically incapable of responding to the administrative judge’s orders. See
Malfitano v. Department of the Navy , 63 M.S.P.R. 260, 262 (1994) (finding that
general claims of mental and emotional impairment, unsupported by medical
documentation, did not establish good cause for the untimely filing of a petition
for review), aff’d, 45 F.3d 444 (Fed. Cir. 1995) (Table).
The appellant also asserts that he has new evidence in the form of a witness
statement indicating that his GS-15 position did not require a TS -SCI security
clearance, although he does not provide a copy of such a statement on review.
PFR File, Tab 1 at 10. Below, the appellant identified this same individual as his
sole witness and indicated that she would testify, inter alia, that his position did
not require a TS -SCI security clearance when he applied for and accepted the
position. IAF, Tab 8 at 19. Accordingly, because the information contained in
the purported witness statement was previously available, it would not constitute
new and material evidence. See 5 C.F.R. § 1201.115(d) (to constitute new and
material evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence when
the record closed). Moreover, the appellant’s arguments regarding the merits of
his case are irrelevant in light of his failure to establish good cause for failing to
respond to the administrative judge’s multiple orders. See Gingery v. Department
of the Treasury, 111 M.S.P.R. 134, ¶ 11 (2009) (finding arguments regarding the
merits of an appeal irrelevant to the issue before the Board of whether the
administrative judge abused her discretion in dismissing the appeal without
prejudice to refiling); Eaglehart v. U.S. Postal Service , 102 M.S.P.R. 672, ¶ 126
(2006) (finding that the Board need not address arguments related to the merits
where the appeal is untimely filed without good cause shown). For the foregoing
reasons, we affirm the initial decision dismissing the appeal for failure to
prosecute.
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. 7
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on8
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or9
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.10
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.11 | Brackenridge_Andrew_F_DC-0752-18-0195-I-1__Final Order.pdf | 2023-12-28 | ANDREW F. BRACKENRIDGE v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-0752-18-0195-I-1, December 28, 2023 | DC-0752-18-0195-I-1 | NP |
2,583 | https://www.mspb.gov/decisions/nonprecedential/Bryant_Brenda_F_AT-0752-18-0475-I-1__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRENDA FAYE BRYANT,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
AT-0752-18-0475-I-1
DATE: December 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brenda Faye Bryant , Deland, Florida, pro se.
Valerie Portwood , Saint Louis, Missouri, for the agency.
David Organes , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary retirement appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was a GS-12 Loan Specialist working with the agency in
Florida. Initial Appeal File (IAF), Tab 6 at 19. In or about January 2018, the
agency’s State Director issued a directive that, effective April 2, 2018, all GS-12
Loan Specialists would have to be present in the office 4 days per week for
training and outreach. Id. at 24, 34. Until this time, the appellant teleworked
4 days per week and was only present in the office 1 day per week. Id. at 34.
On January 24, 2018, the appellant requested that she be allowed to
continue teleworking 4 days per week as a reasonable accommodation of her
disability. Id. She asserted that prolonged travel in a car caused her pain in her
back, hip, and legs, and that the 65-mile commute between her home and the
office was such that she could only tolerate it once per week with the help of pain
medication. Id. She indicated that she could not increase her pain medication in
order to come into the office more often because doing so would adversely affect
her overall health. Id.2
After receiving corroborating medical documentation from the appellant,
the agency determined that she had a disability. Id. at 26. On March 26, 2018,
the State Director denied the appellant’s request, indicating that the appellant
could not meet the requirements of her position without appearing at the office
4 days per week. IAF, Tab 7 at 24. Instead, the State Director offered the
appellant the following accommodations: (1) liberal leave; (2) an adjustable
standing desk; (3) telework on days when the appellant had a doctor’s
appointment; and (4) two 15-minute paid health breaks each day. Id. The
appellant was informed that she could request the State Director to reconsider her
decision, or request that the agency’s Disability Employment Program Manager
reconsider the State Director’s decision. Id. at 25. The appellant was also
informed about the possibility of filing an equal employment opportunity (EEO)
complaint, a union grievance, a Board appeal, or of utilizing the agency’s
alternative dispute resolution process. Id.
On March 28, 2018, the appellant submitted a request to retire effective
April 2, 2018. IAF, Tab 6 at 17. Her separation was processed as a voluntary
retirement. Id. at 16, 19. The appellant then filed this appeal and requested a
hearing. IAF, Tab 1. In a subsequent filing, she argued that her retirement was
involuntary because she could not commute to work 4 days a week and her
request to telework as an accommodation was denied. IAF, Tab 3 at 4.
The administrative judge set forth the applicable burdens of proof and
ordered the appellant to make a nonfrivolous allegation of Board jurisdiction over
her appeal. IAF, Tab 4. The parties responded to the administrative judge’s
order. IAF, Tabs 7-8. In an initial decision, the administrative judge found that
because, among other things, the appellant could have sought review of the State
Director’s decision, she had failed to nonfrivolously allege that her retirement
was involuntary. IAF, Tab 9, Initial Decision (ID) at 5-6. He therefore dismissed
her appeal for lack of jurisdiction without holding a hearing. ID at 6. 3
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
An employee’s retirement is presumed to be a voluntary action and, as
such, is not within the Board’s jurisdiction. Salazar v. Department of the Army ,
115 M.S.P.R. 296, ¶ 9 (2010). An involuntary retirement, however, is tantamount
to a removal, and, accordingly, is appealable to the Board. Id. The presumption
that a retirement is voluntary can be rebutted by evidence showing that the
retirement was the result of agency misrepresentation, coercion, or duress.2 Id.
The appellant bears the burden of proving by preponderant evidence that
the matter she is appealing is within the Board’s authority to review. Brown v.
U.S. Postal Service , 115 M.S.P.R. 609, ¶ 11, aff’d, 469 F. App’x 852 (Fed. Cir.
2011). If the appellant makes a nonfrivolous allegation that the matter is within
the Board’s jurisdiction, she is entitled to a hearing at which she must prove
jurisdiction. Id. A nonfrivolous allegation is an assertion that, if proven, could
establish the matter at issue. 5 C.F.R. § 1201.4(s). An allegation generally will
be considered nonfrivolous when, under oath or penalty of perjury, an individual
makes an allegation that is more than conclusory, is plausible on its face, and is
material to the legal issues in the appeal. Id.
Here, the appellant indicates that her retirement was the result of coercion
rather than misrepresentation. PFR File, Tab 1 at 4. Accordingly, she is only
entitled to a hearing if she makes an allegation of fact that, if proven, could
establish that the agency coerced her retirement. See Brown, 115 M.S.P.R. 609,
¶ 11. For the following reasons, we find that the appellant failed to make a
2 The terms coercion and duress have been used interchangeably by the Board. See
Soler-Minardo v. Department of Defense , 92 M.S.P.R. 100, ¶ 6 (2002); Heining v.
General Services Administration , 68 M.S.P.R. 513, 519-21 (1995); Collins v. Defense
Logistics Agency, 55 M.S.P.R. 185, 188 (1992), modified on other grounds by Ferdon v.
U.S. Postal Service , 60 M.S.P.R. 325 (1994).4
nonfrivolous allegation that her retirement is an action within the Board’s
jurisdiction.
To establish coercion, “an employee must show that the agency effectively
imposed the terms of the employee’s resignation or retirement, that the employee
had no realistic alternative but to resign or retire, and that the employee’s
resignation or retirement was the result of improper acts by the agency.” Staats
v. U.S. Postal Service , 99 F.3d 1120, 1124 (Fed. Cir. 1996). In determining
whether an employee was coerced into resignation or retirement, the Board will
consider allegations of discrimination and reprisal only insofar as those
allegations relate to the issue of voluntariness and not whether they would
establish discrimination or reprisal as an affirmative defense. Brown,
115 M.S.P.R. 609, ¶ 10.
It is well settled that an appellant may show that her retirement was
involuntary due to an agency’s failure to provide a reasonable accommodation for
her disability. E.g., Williams v. Department of Agriculture , 106 M.S.P.R. 677,
¶ 13 (2007). However, if an employee has a choice between contesting the
validity of an agency action and retiring, the employee’s decision to retire is
voluntary. See Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605,
¶¶ 17-18 (2009).
Here, the appellant indicates that it would have been futile to ask the State
Director to reconsider her decision denying the request for an accommodation
because the State Director had made it clear that she would not change her mind.
PFR File, Tab 1 at 4. However, the appellant was informed that she also had the
options of requesting that the Disability Employment Program Manager
reconsider the State Director’s decision and of seeking redress through various
administrative processes. IAF, Tab 7 at 25.
The Board has held that an appellant’s failure to exhaustively challenge
alleged discriminatory actions through the EEO process, when she did not prove
that doing so would be futile or that the agency was handling her EEO complaints5
inequitably, undermined an involuntary resignation claim. Axsom, 110 M.S.P.R.
605, ¶¶ 17-18; see Baker v. U.S. Postal Service , 84 M.S.P.R. 119, ¶¶ 21-23 (1999)
(finding that an employee failed to establish that his ignored accommodations
request rendered his resignation involuntary because he could have contacted
other management officials or filed a grievance—his feeling that such actions
would prove unsuccessful did not excuse his failure to act); see also Garcia v.
Department of Homeland Security , 437 F.3d 1322, 1329 (Fed. Cir. 2006) (en
banc) (finding that a resignation was not involuntary if the employee had a choice
whether to resign or contest the validity of the agency action). Here, the
appellant has failed to nonfrivolously allege that seeking reconsideration with the
Disability Employment Program Manager, or redress through other administrative
processes, would have been futile.3
Instead, the appellant indicates that in order to seek such review she would
have had to use up all her leave, which would have then allegedly decreased her
retirement annuity.4 PFR File, Tab 1 at 5-6. Additionally, in response to the
administrative judge’s suggestion that she alternatively could have relocated her
home to somewhere closer to the office, ID at 6 n.2, the appellant asserted that
such a move was unfathomable,5 PFR File, Tab 1 at 5, 7.
However, the appellant has failed to state the basis for her belief that her
only option, other than retirement, would have been to use up her leave pending
reconsideration or administrative redress. IAF, Tab 7 at 7-9; PFR File, Tab 1
3 Indeed, on May 16, 2018, after she retired and filed this appeal, the appellant also
filed a formal EEO complaint regarding her request for a reasonable accommodation.
IAF, Tab 6 at 14.
4 The appellant has failed to allege by what amount her retirement annuity would have
been decreased if she was required to use all her leave prior to retiring. Based on the
way unused sick leave is used in calculating retirement annuities, it is unlikely that the
appellant’s use of leave would significantly reduce her retirement annuity.
5 In light of our other findings that the appellant failed to show that her decision to
retire was involuntary, we need not determine whether the administrative judge’s
suggestion that the appellant should relocate or use leave was improper or constituted
reasonable accommodations.6
at 5-7. The appellant did state that “[t]he only two options the State Director
provided to [her] were to either begin driving back and forth [4] days a week or
use up all [her] accrued leave time while [she] waited for review of her decision.”
IAF, Tab 7 at 9. However, the appellant does not indicate whether this was
merely her interpretation of the State Director’s decision, or whether the State
Director or another individual explicitly informed her that these were her only
options. Id. The State Director’s decision does not state that the appellant would
be required to either come into the office or use her leave while she waited for a
review of her decision. Id. at 24-25. Accordingly, the appellant’s assertion that
she would have been required to use her leave pending further review of the State
Director’s decision does not constitute a nonfrivolous allegation that her
retirement was involuntary. See Luecht v. Department of the Navy , 87 M.S.P.R.
297, ¶ 5 (2000) (finding that conclusory, vague, or unsupported allegations are
insufficient to meet the nonfrivolous allegation standard).
Significant to the Board’s involuntariness analysis is the existence of undue
time pressure to make a decision regarding whether to retire. Jones v.
Department of the Treasury , 107 M.S.P.R. 466, ¶ 10 (2007). It is true that the
State Director denied the appellant’s request to continue teleworking 4 days per
week on March 26, 2018, and that the State Director had previously directed that
employees such as the appellant would be limited to teleworking 1 day per week
beginning on April 2, 2018. IAF, Tab 6 at 24. However, as indicated above, the
appellant has not alleged that she sought any clarification about her options after
receiving the State Director’s decision, such as whether she could continue
teleworking 4 days per week while seeking review of the decision or whether she
would face discipline if she did not report to work 4 days a week. Assuming
arguendo that the appellant was apprehensive about the agency taking disciplinary
action against her for not reporting to work as directed, she had the option of
contesting such discipline if and when it was brought. See Brown, 115 M.S.P.R.
609, ¶ 15. We therefore find that the appellant failed to nonfrivolously allege that7
the agency used time to pressure her into making a decision regarding whether to
retire. See id. For the foregoing reasons, we find that the appellant failed to
nonfrivolously allege that her retirement was involuntary and dismiss her appeal
for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on9
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or10
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.12 | Bryant_Brenda_F_AT-0752-18-0475-I-1__Final Order.pdf | 2023-12-28 | BRENDA FAYE BRYANT v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. AT-0752-18-0475-I-1, December 28, 2023 | AT-0752-18-0475-I-1 | NP |
2,584 | https://www.mspb.gov/decisions/nonprecedential/Donahue_Sean_M_PH-3330-17-0167-C-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEAN M. DONAHUE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-3330-17-0167-C-1
DATE: December 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sean M. Donahue , Hazleton, Pennsylvania, pro se.
Jillian Flatley and Christine Beam , Pittsburgh, Pennsylvania, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his petition for enforcement as moot. On petition for review, the
appellant largely argues that the agency failed to reconstruct the hiring process
for the Budget Analyst position because its “2017 [reconstructed selection]
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
process was inadequate because it occurred before the July 20 2022 order.”
Compliance Petition for Review File, Tab 1 at 3. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
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
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Donahue_Sean_M_PH-3330-17-0167-C-1_Final_Order.pdf | 2023-12-22 | SEAN M. DONAHUE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-3330-17-0167-C-1, December 22, 2023 | PH-3330-17-0167-C-1 | NP |
2,585 | https://www.mspb.gov/decisions/nonprecedential/Beerman_Benjamin_AT-0752-17-0720-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENJAMIN BEERMAN,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
AT-0752-17-0720-I-1
DATE: December 22, 2023
THIS ORDER IS NONPRECEDENTIAL1
A
dam Jerome Conti , Esquire, Atlanta, Georgia, for the appellant.
Ailya Zaidi , Atlanta, Georgia, for the agency.
Jack Foster Gilbert , Lakewood, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal for failure to follow instructions. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the
administrative judge’s findings regarding the appellant’s whistleblower reprisal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
affirmative defense, nexus, and penalty, and REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
BACKGROUND
Prior to the removal at issue in this appeal, the agency employed the
appellant as a Senior Structural Engineer, GS-14, with the Federal Highway
Administration (FHWA), Office of Technical Services, Resource Center. Initial
Appeal File (IAF), Tab 5 at 22, Tab 7 at 6, Tab 16 at 4. On Thursday, March 30,
2017, a bridge portion of Interstate 85 (I-85) in Atlanta, Georgia, collapsed as a
result of a fire. IAF, Tab 7 at 6. Senior FHWA officials, including the Acting
Administrator and Georgia Division Administrator, represented FHWA in
offering support to the Georgia Department of Transportation (GDOT). Id. Early
in the morning on Friday, March 31, 2017, the appellant offered to assist the
senior officials, and his supervisor emailed him to “please standby” and
instructed him to “let me and [the Director of the Office of Bridges and Structures
(Director)] know if your [sic] contacted by anyone for possible help on this
matter.” IAF, Tab 8 at 25-26. The appellant responded, “will do.” Id. at 25.
Later that day, without further communication with his supervisor, the appellant
went to the site of the bridge collapse. IAF, Tab 19, Hearing Compact Disc
(testimony of the appellant). Afterwards, he emailed photos of the site to the
GDOT state bridge engineer, the Director, his supervisor, and others. Id.; IAF,
Tab 8 at 32-33.
On the morning of Saturday, April 1, 2017, the appellant emailed the
GDOT state bridge engineer regarding his suggestion to repair the bridge using
the “in-fill” methodology and his estimate regarding the timeframe for completing
the repairs. IAF, Tab 8 at 46-49. He copied the FHWA Georgia Division
Administrator and a Georgia Division Structural Engineer (L.K.), but he did not
copy his supervisor. Id. at 46. Less than 2 hours later, his supervisor emailed
him stating the following: 2
Did someone ask you to go to the bridge site? If so, why didn’t you
tell me and [the Director] per my instructions provided earlier?
I am not sure what your involvement with this effort has been so far.
Please call me to discuss this on Monday. In the meantime, I don’t
want you to have any involvement with this effort without my
approval.
Id. at 36. The appellant responded that L.K. had asked him to go to the site and
that he had been providing technical assistance. Id. at 38.
On Sunday, April 2, 2017, the GDOT state bridge engineer forwarded the
appellant’s email regarding the in-fill method to the GDOT chief engineer, who
responded to the appellant’s email thanking him for his suggestions and
informing him that GDOT had determined that the best approach was to begin
construction of permanent replacement bridges. IAF, Tab 8 at 46. The appellant
emailed her to thank her for her consideration. Id. at 45. Shortly thereafter, he
sent her another email with a hand-written note attached apparently showing his
estimate for completing the bridge repair using the in-fill method. Id. at 44-45;
IAF, Tab 6 at 49. In the email, he stated the following:
I don’t mean to lean on you, but I’ll leave you w/ this “from the hip”
estimate. Of course there are other considerations to think of.
I’ll stay out of your way. If you need anything more, you have my
contact information.
IAF, Tab 8 at 44. The FHWA Georgia Division Administrator then emailed the
GDOT chief engineer to inform her that FHWA was in “full agreement with
GDOT’s approach to reopening I-85.” Id. at 50. That evening, the Georgia
Division Administrator called and emailed the appellant’s supervisor regarding
the appellant’s interference with their efforts to restore I-85 and asking him to
“direct [the appellant] to cease all communication with GDOT and members of
[his] staff.” Id. at 8, 41. The appellant’s supervisor then emailed the appellant
instructing him to “cease and desist your involvement with the i85 [sic] effort.
The Division don’t [sic] want your involvement with this project.” Id. at 42. 3
On May 30, 2017, the appellant’s supervisor proposed to remove him on
the basis of one charge of failure to follow instructions. IAF, Tab 7 at 6-12. The
agency set forth the following three specifications in support of the charge:
Specification 1: On March 31, 2017, you went to the I-85 bridge site
and involved yourself in the bridge event. Your conduct was in
direct opposition to the March 31 email instruction in that you did
not remain on standby and did not let me know that you were
contacted for help by [L.K.], Structural Engineer, Georgia Division.
[L.K.] is not in your supervisory succession and was not able to
override my instruction to you.
Specification 2: On April 1, you continued to involve yourself in the
bridge event without telling me first, as instructed, that you had been
contacted for help, or getting my approval before becoming involved.
Your conduct was in direct opposition to the March 31 and April 1
email instructions.
Specification 3: On April 2, you continued to involve yourself in the
bridge situation using email communication. This involvement was
in direct opposition to the March 31 and April 1 email instructions.
After being alerted to your continued involvement, I was prompted to
issue a third instruction for you to cease and desist.
Id. at 7. The appellant provided an oral and written response to the proposed
removal. IAF, Tab 5 at 33-87, Tab 6 at 4-259. In an August 7, 2017 decision, the
deciding official found that each specification was supported by preponderant
evidence and that removal was an appropriate penalty. IAF, Tab 5 at 23-32.
Thus, she removed the appellant, effective immediately. Id. at 23.
The appellant appealed his removal to the Board arguing that the charge
was not substantiated because L.K. asked him to go to the bridge collapse site,
“his response was an essential function of his official duties,” he made a good
faith effort to keep his supervisor apprised of his involvement, and no one asked
him to leave the bridge collapse site. IAF, Tab 1 at 6. He also argued that his
removal did not promote the efficiency of the service and that the penalty of
removal was unreasonable. Id. He further argued that his “professional advice
and counsel regarding the response to the catastrophe” constituted a
whistleblowing disclosure because he reported a gross waste of funds and a4
substantial and specific danger to public health and safety and that the agency
removed him in reprisal for this disclosure. Id.
In an order and summary of the prehearing conference, the administrative
judge indicated that he struck the appellant’s affirmative defense of
whistleblower reprisal because his alleged disclosure—namely, his suggestion to
GDOT and agency officials that the in-fill method would be faster and more
economical than their approach—was a policy recommendation rather than a
protected disclosure. IAF, Tab 17 at 3-4. He further found that any funds or
mismanagement would be on the part of the Georgia state government, rather than
the Federal Government. Id. at 4. The appellant objected to this ruling during
the prehearing conference and subsequently submitted a written objection. Id.;
IAF, Tab 18 at 4-6.
After holding the appellant’s requested hearing, the administrative judge
issued an initial decision affirming the removal action. IAF, Tab 21, Initial
Decision (ID). The appellant has filed a petition for review of the initial
decision, the agency has responded, and the appellant has replied. Petition for
Review (PFR) File, Tabs 1, 3-4.
ANALYSIS
The administrative judge properly sustained the charge.
As noted above, the agency charged the appellant with failure to follow
instructions supported by three specifications concerning his conduct in the
aftermath of the I-85 bridge collapse. IAF, Tab 7 at 6-12. To prove a charge of
failure to follow instructions, an agency must establish that the employee was
given proper instructions and that he failed to follow the instructions, without
regard to whether the failure was intentional or unintentional. Powell v. U.S.
Postal Service, 122 M.S.P.R. 60, ¶ 5 (2014). Here, the administrative judge
found that the agency proved specification 1, which concerned the appellant’s5
conduct on March 31, 2017, and specification 3, which concerned his conduct on
April 2, 2017, but did not prove specification 2.2 ID at 7-10.
Regarding specification 1, the administrative judge credited L.K.’s hearing
testimony that he did not ask the appellant to go to the site of the bridge collapse
on March 31, 2017. ID at 5-6 (citing Hillen v. Department of the Army ,
35 M.S.P.R. 453, 459-60 (1987)). Thus, the administrative judge found that the
appellant violated his supervisor’s instruction to “standby” when he went to the
bridge site that day on his own initiative. ID at 6-7. The administrative judge
further found that, even if L.K. did ask the appellant to come to the bridge site,
the appellant still disobeyed his supervisor’s instruction because he failed to
inform him that anyone contacted him for assistance. ID at 7. On review, the
appellant argues that the administrative judge erred in crediting L.K.’s testimony
that he did not ask him to go to the bridge site and, in any event, no one told him
not to go to the bridge site, he had a legitimate basis for going, and, if the
Georgia Division Administrator had truly been upset by his presence at the bridge
site, he should have asked him to leave.3 PFR File, Tab 1 at 11-13. These
arguments are unavailing. First, the appellant’s mere disagreement with the
administrative judge’s credibility determination is insufficient to overturn it. See
2 In declining to sustain specification 2, the administrative judge found that there was
no evidence that the appellant engaged in actionable misconduct on April 1, 2017. ID
at 10. Neither party challenges this finding on review, and we therefore do not disturb
it.
3 In support of his contention that L.K. asked him to go to the bridge site on the
morning of March 31, 2017, the appellant submitted for the first time on review his
cellular phone statement showing, in relevant part, that he received a call at 8:10 a.m.
that morning. PFR File, Tab 1 at 23-98. The Board generally will not consider
evidence submitted for the first time on review unless the appellant shows the
following: (1) the documents and the information contained in the documents were
unavailable before the record closed despite due diligence; and (2) the evidence is of
sufficient weight to warrant an outcome different from that of the initial decision.
Cleaton v. Department of Justice , 122 M.S.P.R. 296, ¶ 7 (2015), aff’d, 839 F.3d 1126
(Fed. Cir. 2016); 5 C.F.R. § 1201.115(d). The appellant’s March/April cellular phone
statement is not a new document because it was available before the close of the record
below and it is not material because the fact of the call is not disputed. Thus, we do not
consider it. 6
Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (explaining
that the Board must defer to an administrative judge’s credibility determinations
when they are based, explicitly or implicitly, on observing the demeanor of
witnesses testifying at a hearing and may overturn such determinations only when
it has “sufficiently sound” reasons for doing so). In addition, as the
administrative judge correctly found, if L.K. did ask the appellant for help, he
failed to follow his supervisor’s instruction to let him know if anyone reached out
to him for assistance. ID at 6-7. Finally, the appellant’s belief that it was
appropriate for him to go to the bridge site on March 31, 2017, does not establish
that his supervisor’s instruction was not proper or that he followed it.
Accordingly, we find that the administrative judge properly sustained
specification 1.
Regarding specification 3, the administrative judge found that the appellant
failed to follow his supervisor’s April 1, 2017 instruction to not have any further
involvement with the bridge repair effort without prior approval when, on April 2,
2017, he emailed GDOT’s chief engineer. ID at 7-10; IAF, Tab 6 at 49, Tab 8
at 36, 44-45. The appellant argues that his response did not constitute “further
involvement” in the incident because he only transmitted a “previously compiled
cost estimate . . . [which] was a follow-up to his prior assessment,” he expressly
stated therein that his participation had ended, and his email constituted a
whistleblower disclosure. PFR File, Tab 1 at 10. These arguments, even if true,
do not establish that the administrative judge erred in finding that the appellant
failed to follow his supervisor’s April 1, 2017 instruction not to have “any
involvement with this effort without my approval” when, on April 2, 2017, he
emailed the GDOT chief engineer with his estimate for completing the bridge
repair and stated, “I don’t mean to lean on you, but I’ll leave you w/ this ‘from
the hip’ estimate.” IAF, Tab 6 at 49, Tab 8 at 39, 44-45. Thus, we find that the
administrative judge properly sustained specification 3. 7
In light of the foregoing, we find that the administrative judge correctly
found that the agency proved the charge. ID at 7-10; see Burroughs v.
Department of the Army , 918 F.2d 170, 172 (Fed. Cir. 1990) (stating that, when
more than one factual specification supports a single charge, proof of one or
more, but not all, of the supporting specifications is sufficient to sustain the
charge).
We remand the appellant’s affirmative defense of whistleblower reprisal for
notice and further adjudication.
Generally, in an adverse action appeal, an appellant’s claim of
whistleblower reprisal is treated as an affirmative defense. Campbell v.
Department of the Army , 123 M.S.P.R. 674, ¶ 11 (2016). In such appeals, once
the agency proves its adverse action case by a preponderance of the evidence, the
appellant must show by preponderant evidence that he engaged in whistleblowing
activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8) and that
the disclosure was a contributing factor in the agency’s personnel action.4 Id.;
5 C.F.R. § 1201.56(b)(2)(i)(C).
As noted above, the administrative judge struck the appellant’s
whistleblower reprisal affirmative defense at the prehearing conference on the
ground that he failed to nonfrivolously allege that he made a protected disclosure
within the meaning of the Whistleblower Protection Act. IAF, Tab 17 at 3-4.
The appellant objected to this ruling during the prehearing conference and
subsequently submitted a written objection arguing again that his
recommendations to GDOT and FHWA personnel that the in-fill method would
save time and money on bridge repair constituted a protected disclosure. Id. at 4;
IAF, Tab 18 at 4-6. He also argued in his written objection that his managers
perceived him to be a whistleblower because “they feared he would disclose to
outside parties at the incident site the Agency’s negligence in permitting the
4 Preponderant evidence is defined as 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). 8
storage of combustible materials as well as the existence of a skateboard under an
Interstate Highway.” IAF, Tab 18 at 6.
In the initial decision, the administrative judge considered the appellant’s
objection to his decision to strike the whistleblower affirmative defense but found
no merit to his contention that he made a protected disclosure. ID at 12-13. He
acknowledged the “perceived whistleblower” theory raised in the appellant’s
written objection to the prehearing order and summary but declined to consider it
because the appellant did not raise it in his prehearing submission or during the
prehearing conference and failed to show good cause as to why the additional
claim should be allowed. ID at 14 n.5. On review, the appellant argues that the
administrative judge erred in striking his whistleblower reprisal affirmative
defense prior to the hearing without providing him notice of his burden of proof
to establish this affirmative defense and by refusing to consider his perceived
whistleblower claim. PFR File, Tab 1 at 15-20. We agree.
The Board has consistently required administrative judges to apprise
appellants of the applicable burdens of proving a particular affirmative defense,
as well as the kind of evidence required to meet those burdens. Erkins v. U.S.
Postal Service, 108 M.S.P.R. 367, ¶ 8 (2008). When an administrative judge fails
to inform the parties of their burdens and methods of proof, the Board typically
remands the appeal so the administrative judge can afford such notice and an
opportunity to submit evidence and argument under the proper standard. Id.
Here, the administrative judge failed to provide the appellant notice regarding his
whistleblower reprisal affirmative defense. Accordingly, we vacate the
administrative judge’s findings regarding the appellant’s whistleblower reprisal
affirmative defense and remand this appeal for further adjudication.
On remand, the administrative judge shall inform the appellant of his
burden of proof regarding his whistleblower reprisal affirmative defense,
including his perceived whistleblower claim, and afford the parties an opportunity
to submit evidence and argument on these issues. If desired by the parties, the9
administrative judge shall hold a supplemental hearing.5 See 5 U.S.C. § 7701(a)
(1). The administrative judge then must issue a new initial decision that
addresses the appellant’s affirmative defense and its effect on the outcome of the
appeal, if any.
An adverse action is sustainable only if the appellant cannot establish his
affirmative defenses. Hall v. Department of Transportation , 119 M.S.P.R. 180,
¶ 8 (2013), overruled on other grounds by Thurman v. U.S. Postal Service ,
2022 MSPB 21. Here, it would be premature for the Board to consider whether
there is a nexus between the appellant’s misconduct and the efficiency of the
service and whether the agency-imposed penalty is reasonable given that
additional adjudication of the appellant’s affirmative defense is required. Id.
Thus, we vacate the administrative judge’s findings regarding nexus and penalty.
However, if the appellant does not prevail on his affirmative defense on remand,
the administrative judge may incorporate into the new initial decision his original
findings with respect to the issues of nexus and the reasonableness of the penalty
of removal. Id.
5 Below, the administrative judge struck the appellant’s whistleblower reprisal
affirmative defense after the period for completing discovery had ended. IAF, Tabs 2,
17. It is within the administrative judge’s discretion whether or not to allow the parties
to conduct additional discovery on remand. 10
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C.______________________________
Jennifer Everling
Acting Clerk of the Board11 | Beerman_Benjamin_AT-0752-17-0720-I-1_Remand_Order.pdf | 2023-12-22 | BENJAMIN BEERMAN v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. AT-0752-17-0720-I-1, December 22, 2023 | AT-0752-17-0720-I-1 | NP |
2,586 | https://www.mspb.gov/decisions/nonprecedential/Burnett_Kevin_P_DC-3330-21-0421-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN PATRICK BURNETT,
Appellant,
v.
FEDERAL DEPOSIT INSURANCE
CORPORATION,
Agency.DOCKET NUMBER
DC-3330-21-0421-I-2
DATE: December 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin Patrick Burnett , Stockton, California, pro se.
Antonier Lee White , Esquire, Arlington, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
granted the appellant’s request for corrective action in this Veterans Employment
Opportunities Act of 1998 (VEOA) appeal and ordered the agency to reconstruct
the selection process for vacancy announcement 2019-HQD-0262. On review, the
agency contends that the administrative judge erred when she determined 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).
2022 reconstructed selection process was improper, and she ordered the agency to
undertake a second reconstructed selection process. Burnett v. Federal Deposit
Insurance Corporation , DC-3330-21-0421-I-2, Petition for Review (PFR) File,
Tab 1 at 4, 8-13. The agency’s argument is not persuasive.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
The agency conceded that the appellant was minimally qualified for
vacancy announcement 2019-HQD-0262, he was mistakenly omitted from
consideration, and it violated his veterans’ preference rights during the original
2019 selection process. Burnett v. Federal Deposit Insurance Corporation ,
DC-3330-21-0421-I-1, Initial Appeal File (IAF), Tab 5 at 5; PFR File, Tab 1 at 5.
Under these circumstances, the only remedy was for the agency to properly
reconstruct the selection process. Schultz v. Department of Veterans Affairs ,
2022 MSPB 23, ¶ 8. We agree with the administrative judge that the 2022
reconstructed selection process does not satisfy the agency’s obligations under2
VEOA. Burnett v. Federal Deposit Insurance Corporation , MSPB Docket No.
DC-3330-21-0421-I-2, Appeal File (I-2 AF), Tab 43, Initial Decision (ID) at 6-7.
To properly reconstruct the hiring process, the agency must rely on the
circumstances at the time of the original selection, including taking the original
selectee out of the position, comparing the application of the original selectee
with the appellant’s application, and filling the same number of positions during
the reconstructed process as it did in the original one. Schultz, 2022 MSPB 23,
¶ 8; Russell v. Department of Health and Human Services , 120 M.S.P.R. 42, ¶ 13
(2013); Phillips v. Department of the Navy , 114 M.S.P.R. 19, ¶ 19 (2010);
Williams v. Department of the Air Force , 110 M.S.P.R. 451, ¶¶ 8, 10 (2009). The
agency’s 2022 reconstructed selection process did not rely on circumstances as
they existed at the time of the original 2019 nonselection. For example, the
agency used a different selecting official,2 it canceled the vacancy announcement
during the reconstructed selection process based on circumstances that occurred
in 2022,3 and it did not select any applicants.4 See, e.g., Marshall v. Department
of Health and Human Services , 587 F.3d 1310, 1316 (Fed. Cir. 2009)
(“[R]econstruction does not allow an agency to conduct a new selection process
under new circumstances.”). For these reasons, the agency never remedied its
original flawed selection process for vacancy announcement 2019-HQD-0262.5
Schultz, 2022 MSPB 23, ¶ 9.
2 It is not clear why the agency used a different selecting official during the 2022
reconstructed selection process when the selecting official in the 2019 selection process
was a current agency employee. I-2 AF, Tab 11 at 29-30, Tab 39 at 75.
3 The agency explained that the Chairman was leaving her position, and there was no
longer a need for a Senior Policy Analyst in her office. I-2 AF, Tab 39 at 75.
4 The agency does not appear to challenge that the appellant has a compensable service
connected disability rating of 30% or more. IAF, Tab 11 at 23, 61. Therefore, if it does
not wish to select the appellant during the second reconstructed selection process, it
must seek passover authority from the Office of Personnel Management and provide the
requisite notice to the appellant of the proposed passover. 5 U.S.C. § 3318(c)(2); see
5 C.F.R. § 332.406 (a)(1) (“OPM retains exclusive authority to approve the sufficiency
of an agency’s request to pass over preference eligibles who are [30%] or more
compensably disabled.”). 3
ORDER
We ORDER the agency to reconstruct the hiring process for Vacancy
Announcement 2019-HQD-0262 consistent with this Order. The agency must
complete this action no later than 30 days after the date of this decision.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision 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).
This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE 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.), section 3330c(b). The regulations may be
5 The agency relies on Millner v. Department of Veterans Affairs , 93 F. App’x 223, 225
(Fed. Cir. 2004), to support its proposition that a decision to cancel a vacancy
announcement does not violate veterans’ preference rights. PFR File, Tab 1 at 9.
However, the agency’s decision to cancel the vacancy announcement in 2022 did not
occur in a vacuum. Rather, the agency’s decision to cancel the vacancy announcement
during the 2022 reconstructed selection process was not based on circumstances that
existed during the 2019 original selection process, as required. Accordingly, Millner is
distinguishable from this matter.4
found at 5 C.F.R. §§ 1201.202, 1201.203, and 1208.25. If you believe you meet
these requirements, you must file a motion for attorney fees WITHIN
60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file
your motion for attorney fees and costs with the office that issued the initial
decision on your appeal.
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST DAMAGES
You may be entitled to be compensated by the agency for any loss of wages
or benefits you suffered because of the violation of your veterans’ preference
rights. 5 U.S.C. § 3330c(a); 5 C.F.R § 1208.25(a). If you are entitled to such
compensation, and the violation is found to be willful, the Board has the authority
to order the agency to pay an amount equal to back pay as liquidated damages.
5 U.S.C. § 3330c(a); 5 C.F.R § 1208.25(a). You may file a petition seeking
compensation for lost wages and benefits or damages with the office that issued
the initial decision in your appeal WITHIN 60 CALENDAR DAYS OF THE
DATE OF THIS DECISION.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.5 | Burnett_Kevin_P_DC-3330-21-0421-I-2_Final_Order.pdf | 2023-12-22 | KEVIN PATRICK BURNETT v. FEDERAL DEPOSIT INSURANCE CORPORATION, MSPB Docket No. DC-3330-21-0421-I-2, December 22, 2023 | DC-3330-21-0421-I-2 | NP |
2,587 | https://www.mspb.gov/decisions/nonprecedential/Draughn_Velesa_DC-0752-17-0527-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VELESA DRAUGHN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-0752-17-0527-I-1
DATE: December 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
V
elesa Draughn , Hanover, Maryland, pro se.
Kathryn M. Martin , Esquire, Mary Rae Dudley , Fort Eisenhower, Georgia,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal for Failure to Comply with a Management Directed
Reassignment (MDR). Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED as
to the administrative judge’s analysis of the appellant’s affirmative defenses, we
AFFIRM the initial decision.
BACKGROUND
On July 6, 2016, the agency issued the appellant, a GS-13 Human
Resources Specialist with the G1 personnel management division of the U.S.
Army Cyber Command (ARCYBER) at Fort Meade, Maryland, notice of an MDR
to an identical position at Fort Belvoir, Virginia. Initial Appeal File (IAF), Tab 8
at 56-59, Tab 23 at 4.2 The agency sought to relocate G1, which is the
ARCYBER personnel component, to Fort Belvoir, so G1 could better support
ABCYBER command, which was already located at Fort Belvoir. Hearing
Transcript, October 31, 2017 (HT-2) at 158, 164-65 (testimony of the appellant’s
supervisor); IAF, Tab 8 at 62-63. Including the two G1 managers, the agency
anticipated moving 10 employees. HT-2 at 158-59 (testimony of the appellant’s
supervisor); IAF, Tab 8 at 62. Despite its finding that the two locations were less
than 50 miles apart, and therefore would not qualify for reimbursement of moving
2 In her prehearing conference summary, the administrative judge listed 24 agreed-upon
material facts. IAF, Tab 26 at 1-3. She instructed the parties to make any objection to
the content of that summary prior to the start of the hearing, id. at 7-8, and the record
does not reflect that either party did so. The administrative judge also reiterated the
agreed-upon material facts in her initial decision. IAF, Tab 36 at 35-37. The parties
have not disputed these facts, and thus we discern no basis to disturb the administrative
judge’s reliance on them. 2
expenses, the agency authorized permanent change of station (PCS) benefits to all
employees affected by the MDR. IAF, Tab 8 at 56; HT-2 at 85-86 (testimony of a
G1 human resources specialist), 185 (testimony of the appellant’s supervisor).
Ultimately, according to the G1 Primary Staff Officer for Human Resources, who
also served as the deciding official in this matter, the agency lost three employees
in the move, but retained a total of seven personnel: four military and three
civilian. HT-1 at 366, 378-79 (testimony of the deciding official); IAF, Tab 7
at 22.
The appellant made a July 15, 2016 reasonable accommodation request to
either remain at Fort Meade or to telework full-time, which the agency denied.
IAF, Tab 8 at 42-46, 55. Nevertheless, it subsequently granted her several other
accommodations, authorizing house -hunting trip (HHT) benefits and 90 days of
temporary quarters allowance (TQSE), along with flexibility in her work schedule
to accommodate her use of a medical device.3 IAF, Tab 7 at 97; HT-2 at 190-91
(testimony of the appellant’s supervisor).
The appellant filed an administrative grievance, which the ARCYBER
Chief of Staff rejected as untimely, and a November 17, 2016 formal equal
employment opportunity (EEO) complaint.4 IAF, Tab 8 at 40-41, Tab 22 at 29.
She submitted a series of doctor’s notes extending her absences and took leave
protected under the Family and Medical Leave Act of 1993 (FMLA) from
September 6 to November 21, 2016. IAF, Tab 8 at 19-21, 24, 28-39; Hearing
Transcript, Sept. 13, 2017 (HT-1) at 252 (testimony of the appellant). She then
remained on leave without pay (LWOP) until her removal. HT-1 at 262-63
(testimony of the appellant). In March 2017, when she declined the MDR, the
agency issued a notice of proposed removal for her failure to comply with it.
3 The appellant’s medical condition required the use of a pneumatic compression device
on her legs for 60 minutes each morning and evening. IAF, Tab 7 at 97.
4 In her response to the administrative judge’s affirmative defense order, the appellant
also asserted that she had filed four other formal EEO complaints, on March 25, 2014,
May 22 and September 29, 2015, and May 23, 2016. IAF, Tab 17 at 9, Tab 22 at 29.3
IAF, Tab 7 at 86-88, Tab 8 at 4. After considering the appellant’s written reply,
the deciding official issued a decision removing her effective April 22, 2017.
IAF, Tab 7 at 18-22. In making her decision, the deciding official observed that
the appellant’s leave beginning November 22, 2016, after her FMLA entitlement
expired, suggested the appellant would not “appear to work.” Id. at 22.
The appellant filed a timely appeal of her removal. IAF, Tab 1. She
challenged the legitimacy of the agency’s reasons for the MDR. IAF, Tab 23
at 5. She contended that the agency had not given her proper notice and
improperly removed her based on her use of approved leave. Id. She pleaded
affirmative defenses of disability discrimination based on a failure to
accommodate and retaliation for protected whistleblowing and EEO activity.
IAF, Tab 17 at 4-11, Tab 23 at 5.
After holding a hearing, the administrative judge issued a comprehensive
initial decision in which she thoroughly recounted the pertinent documentary and
testimonial evidence. IAF, Tab 36, Initial Decision (ID), at 1-37. She found that
the agency proved its charge of failure to comply with an MDR. ID at 39-43.
She was not persuaded by the appellant’s argument that the agency’s removal was
improper because she was on approved LWOP at the time of her removal. ID
at 43-44. The administrative judge found a nexus between the agency’s action
and the efficiency of the service and determined that removal was a reasonable
penalty. ID at 44-47. She denied the appellant’s affirmative defenses, finding
that the agency offered the appellant a reasonable accommodation and had not
removed her on the basis of the absences caused by her disability. ID at 51. She
found that the appellant failed to establish her claims of whistleblower reprisal or
retaliation for protected EEO activity. ID at 51-57. The administrative judge
also found that the appellant failed to establish her claims of harmful procedural
error. ID at 57-60. Thus, the administrative judge affirmed the appellant’s
removal for failure to comply with the MDR. ID at 60. 4
In her petition for review, the appellant reiterates three discrete arguments
that the administrative judge rejected in her appeal below. Petition for Review
(PFR) File, Tab 1. She contends that she cannot be removed for failure to comply
with an MDR because the agency’s action does not meet the regulatory definition
of a reassignment. Id. at 9-10. She also argues that she could not be removed
while on approved leave. Id. at 7-8. Finally, she asserts that the agency
improperly considered approved absences in deciding to remove her. Id.
at 10-11. The agency has filed a response in opposition to the appellant’s petition
for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency appropriately charged the appellant with failure to comply with an
MDR.
In her petition for review, the appellant argues that she cannot be removed
for failure to comply with an MDR because the agency’s action does not meet the
definition of a reassignment found in 5 C.F.R. § 210.102(b)(12). PFR File, Tab 1
at 9-10. She asserts that the regulation defines a reassignment as a change of an
employee, while serving continuously within the same agency, from one position
to another without promotion or demotion. Id. at 9; 5 C.F.R. § 210.102(b)(12).
As she observes, the agency changed her duty station but not her position. PFR
File, Tab 1 at 9-10; IAF, Tab 24 at 53. On this issue, the administrative judge
found no law, rule, or regulation providing that an MDR cannot be deemed both a
change in duty station and a reassignment. ID at 38. We agree.
Section 7513(b)(1) of Title 5 provides that an employee must receive
advance written notice stating the specific reasons for the proposed adverse
action. Smith v. Department of the Interior , 112 M.S.P.R. 173, ¶ 5 (2009). The
Board will not technically construe the wording or specification of a charge;
rather, the information provided by the agency must be sufficiently specific to
permit the employee to properly respond. Id.; Aiu v. Department of Justice ,
70 M.S.P.R. 509, 518-19 (1996), aff’d per curiam , 98 F.3d 1359 (Fed. Cir. 1996)5
(Table). Here, the agency advised the appellant that the reassignment at issue in
the charge was her reassignment to Fort Belvoir, and that she was being removed
for failing to report to her new duty station. IAF, Tab 7 at 86. We decline to find
that the agency could not use the word “reassignment” because it had a different
technical definition elsewhere in Federal regulations. The appellant clearly
understood, and was able to respond to, the information provided by the agency in
the proposed removal. Id. at 41-50.
The agency established that the appellant failed to comply with the MDR .
In Frey v. Department of Labor , 359 F.3d 1355, 1360 (Fed. Cir. 2004), the
U.S. Court of Appeals for the Federal Circuit adopted, “as the law of the circuit,”
the burden-shifting framework set forth by the Board in Ketterer v. Department of
Agriculture, 2 M.S.P.R. 294, 298-299 (1980), to adjudicate the charge of failure
to accept an MDR. Cobert v. Miller , 800 F.3d 1340, 1349 (Fed. Cir. 2015).
Under Ketterer, the agency has the initial burden of showing that its decision to
reassign the employee was a bona fide determination based on legitimate
management considerations in the interests of the service. Ketterer, 2 M.S.P.R.
at 298. Such a showing, along with evidence that the employee had adequate
notice of the decision to transfer and refused to accept the reassignment, is
ordinarily sufficient to establish the agency’s prima facie case. Id. at 299. Once
the agency makes out a prima facie case, the burden shifts to the appellant to
produce rebuttal evidence to demonstrate that the reassignment had no solid or
substantial basis in personnel practice or principle, although the ultimate burden
of persuasion never shifts from the agency. See Umshler v. Department of the
Interior, 44 M.S.P.R. 628, 630 (1990); Ketterer, 2 M.S.P.R at 299-300.
On review, the appellant does not challenge the administrative judge’s
finding that the agency proved that she failed to comply with an MDR. ID
at 39-43. The appellant also does not challenge the administrative judge’s finding
that she failed to rebut the agency’s prima facie case. ID at 39-43. We discern
no basis to disturb the administrative judge’s determination that the agency’s6
decision to reassign the appellant was appropriate. ID at 43. Thus, we agree with
her conclusion that the agency established that the appellant failed to comply with
the MDR. See Cobert, 800 F.3d at 1349-50 (finding that the Board improperly
reversed an employee’s removal when the agency had reassigned the appellant
based on legitimate management considerations and she failed to rebut those
reasons).
On review, the appellant reiterates her argument that the agency improperly
removed her while on approved leave, such that the agency removed her before
the date on which she was required to report to Fort Belvoir. PFR File, Tab 1
at 4, 7-8; IAF, Tab 23 at 5. However, when an employee refuses a directed
reassignment, an agency is not required to use a leave-related charge. Gallegos v.
Department of the Air Force , 121 M.S.P.R. 349, ¶¶ 5, 13, 15 (2014) (finding that,
if an employee does not report to her new duty station, an agency may charge her
with refusal to accept a directed reassignment, absence without leave, failure to
follow instructions, or if appropriate, failure to fulfill a condition of
employment). Observing the appellant’s concurrence that the agency’s action
here was not based on a charge of excessive absences, the administrative judge
determined that whether the appellant was on approved leave at the time of her
removal was of no relevance. ID at 44. We agree. Although it could have done
so, the agency did not charge the appellant with excessive absences, and we find
that the appellant’s leave status is not relevant to the issue in this appeal, i.e.,
whether she failed to comply with an MDR. IAF, Tab 7 at 86-88; see, e.g., Parbs
v. U.S. Postal Service , 107 M.S.P.R. 559, ¶ 8 (2007) (finding that an agency is
required to prove the charge as it is set forth in the notice of proposed removal,
not another offense that might be sustainable on the same facts), aff’d per curiam ,
301 F. App’x 923 (Fed. Cir. 2008). 7
The appellant failed to establish her affirmative defenses .
Disability discrimination based on a failure to accommodate
The appellant alleged discrimination based on a failure to accommodate her
disabilities. IAF, Tab 17 at 4-5. In order to establish disability discrimination
based on a failure to accommodate, an employee must show that: (1) she is an
individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a
qualified individual with a disability, as defined by 29 C.F.R. § 1630.2(m); and
(3) the agency failed to provide a reasonable accommodation. Miller v.
Department of the Army , 121 M.S.P.R. 189, ¶ 13 (2014). The administrative
judge found it undisputed that the appellant suffers from a disability, citing her
doctor’s diagnosis of lymphedema, depression, and anxiety. ID at 48; IAF, Tab 8
at 13-18. Neither party challenges this finding, and we discern no reason to
disturb it. The administrative judge also found that the appellant has the requisite
skills and experience to perform the duties of her position, ID at 48, but she did
not make a specific finding that the appellant is a qualified individual with a
disability under 29 C.F.R. § 1630.2(m). Nevertheless, we agree with her finding
that the agency offered a reasonable accommodation, which the appellant
declined, and thus she did not prove her claim. Miller, 121 M.S.P.R. 189, ¶ 21
(2014).
The administrative judge found that the essential functions of the
appellant’s position required face-to-face interaction, precluding her
accommodations of choice, i.e., full-time telework or remaining at Fort Meade,
which would defeat the stated purpose of the MDR, to co-locate the G1 human
resources component with the customers for whom it provides mission support.
ID at 48-49; IAF, Tab 8 at 43-46. Further, an appellant is not entitled to the
accommodation of her choice. Miller, 121 M.S.P.R. 189, ¶ 21 (2014). An
accommodation is reasonable if it “seems reasonable on its face,” i.e., if it
appears “feasible” or “plausible.” White v. Department of Veterans Affairs ,
120 M.S.P.R. 405, ¶ 12 (2013) (quoting Equal Employment Opportunity8
Commission (EEOC) Notice No. 915.002, Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act
(2002)). The administrative judge found that the agency offered the appellant a
reasonable accommodation that addressed both her medical needs and the
agency’s operational needs. ID at 51; IAF, Tab 7 at 96-98.
For the following reasons, we agree with the administrative judge that the
agency’s proposed accommodation met that test. As noted above, the agency
offered the appellant HHT and TQSE benefits and also offered to adjust her hours
to allow her to use a medical device before the beginning of her duty day. IAF,
Tab 7 at 97. These accommodations would have allowed the appellant to find a
new home closer to Fort Belvoir and to temporarily live closer to her new duty
station while she did so, alleviating the travel distance, which directly addressed
her physician’s concerns about the lengthy commute to Fort Belvoir. IAF, Tab 7
at 97, Tab 23 at 71. The shortened commute also would have allowed time for
her to use her medical device and the agency further offered to adjust her hours
for the same purpose. IAF, Tab 7 at 97, Tab 23 at 71.
Because the record therefore reflects that the agency offered the appellant
reasonable accommodations that directly addressed her physician’s concerns, we
agree that she failed to establish her claim of disability discrimination. ID at 51;
Tab 23 at 71. Neither party challenges this finding on review, and we discern no
reason to revisit the issue.
Retaliation for protected disclosures
The appellant also asserted the affirmative defense of retaliation for
protected disclosures. IAF, Tab 17 at 6-9. To establish the affirmative defense of
reprisal for protected whistleblowing activity, the appellant must show by a
preponderance of the evidence that she made a protected disclosure under
5 U.S.C. § 2302(b)(8) or participated in protected activity under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D) and that the disclosure or protected activity
was a contributing factor in the agency’s personnel action. Ayers v. Department9
of the Army, 123 M.S.P.R. 11, ¶ 12 (2015); Alarid v. Department of the Army ,
122 M.S.P.R. 600, ¶¶ 12-13 (2015). The first of the appellant’s disclosures
involved the agency’s alleged abuse of travel and relocation entitlements, and the
second concerned the agency’s appointment of personnel without an appropriate
security clearance. IAF, Tab 17 at 7. The administrative judge found that the
appellant failed to show that either of her alleged disclosures, both of which she
made to her U.S. Senator on or about March 15, 2017, were protected. ID
at 53-54; IAF, Tab 7 at 80 -88, Tab 17 at 7. On review, the appellant does not
challenge the administrative judge’s findings with respect to her whistleblower
reprisal affirmative defense. Nevertheless, we modify the administrative judge’s
analysis to find that the appellant failed to establish that her OSC and OIG
complaints were a contributing factor in her MDR and to vacate the
administrative judge’s finding that the agency met its burden to prove it would
have removed the appellant absent her protected disclosures.
In the appellant’s first disclosure, she alleged that the agency violated
travel regulations because her supervisor had failed to clarify her travel
entitlements and denied her the opportunity to use them, even though the
supervisor had allowed others to use the entitlements and had used them herself.
IAF, Tab 7 at 80 -83, Tab 17 at 7. As noted above, the administrative judge found
that this disclosure was not protected, in large part because the agency had
offered the appellant the benefits at issue. ID at 53. Additionally, she found that
the appellant’s assertion that she did not know what was expected of her was
disingenuous. Id. The appellant also asserted in her disclosure that the agency’s
offer of HHT benefits violated Federal Travel Regulation 302-5.12, codified at
41 C.F.R. § 302-5.12, because her supervisor required her to report to Fort
Belvoir before she would discuss the HHT and the regulation requires that an
HHT be completed before the employee reports to the new duty station. IAF,
Tab 7 at 83. She further asserted in her disclosure that this meant that her
supervisor had no intention of authorizing HHT benefits. Id. However, the same10
regulation makes clear that an employee’s spouse may take a separate HHT also
and that the spouse’s trip may be completed at a later date. 41 C.F.R. § 302-5.12,
see 41 C.F.R. § 302-5.9 (providing that a spouse and an employee may make
separate house hunting trips). Thus, we agree with the administrative judge that
the appellant, a Human Resource Specialist, did not reasonably believe that the
offer of HHT violated the regulation. ID at 53.
In her second disclosure, the appellant argued that her supervisor was
appointed without the appropriate security clearance. IAF, Tab 17 at 7. The
appellant testified that the basis for her belief that wrongdoing occurred was that
her supervisor obtained a waiver of the security clearance requirement rather than
an interim clearance. HT-1 at 142-49 (testimony of the appellant). She explained
that a waiver is only granted to meet a critical need for a certain period of time,
during which the employee must obtain the necessary security clearance. Id.
at 146. The administrative judge found that this disclosure was not protected
because the appellant failed to cite any support other than her opinion. ID at 53.
We decline to disturb the administrative judge’s finding that the appellant failed
to articulate a reasonable belief that she disclosed wrongdoing under Federal
whistleblowing statutes. ID at 53. As noted above, the appellant does not
challenge these findings regarding her alleged protected disclosures on review,
and we discern no reason to revisit the issue.
The appellant raised additional alleged protected activity for the first time
during the hearing. ID at 22 n.2. She asserted that the agency retaliated against
her for an anonymous complaint she made to the agency’s Office of Inspector
General (OIG) in January 2014. Id.; HT-1 at 22-26 (testimony of the appellant).
She also asserted that she filed complaints with the Office of Special Counsel
(OSC) in January 2014 and in either December 2015 or January 2016. ID
at 22 n.2; HT-1 at 104 (testimony of the appellant). The administrative judge did
not expressly find that the appellant engaged in protected activity under 5 U.S.C.
§ 2302(b)(9) with respect to her OIG and OSC complaints. ID at 22 n.2.11
Nevertheless, she declined to address them further because she found that the
appellant failed to prove that any acting agency officials were aware of her
activity, and thus did not establish that it was a contributing factor in her
removal. Id.
Under 5 U.S.C. § 2302(b)(9)(C), it is a prohibited personnel practice to
take an action against an employee because that employee “disclos[ed]
information to the Inspector General . . . of an agency, or the Special Counsel, in
accordance with applicable provisions of law.” Thus, we supplement the
administrative judge’s analysis to expressly find that the appellant engaged in
protected activity under 5 U.S.C. § 2302(b)(9)(C) with respect to her OSC and
OIG complaints. Nevertheless, we affirm the administrative judge’s
determination that the appellant failed to prove that her protected activity was a
contributing factor in her removal.
An appellant’s protected activity is a contributing factor if it in any way
affects an agency’s decision to take, or fail to take, a personnel action. Dorney v.
Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012). One way an appellant
may establish the contributing factor criterion is the knowledge/timing test, under
which she submits evidence showing that the official taking the personnel action
knew of the disclosure or activity and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the disclosure or
activity was a contributing factor in the personnel action. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 63. The administrative judge found
that the appellant failed to provide any evidence that anyone at the agency was
aware of her protected activity. ID at 22 n.2. The parties do not dispute this
finding, and we decline to review it here.
If an administrative judge determines that an appellant has failed to satisfy
the knowledge/timing test, she shall consider other evidence, such as evidence
pertaining to the strength or weakness of the agency’s reasons for taking the
personnel action, whether the whistleblowing was personally directed at the12
proposing or deciding officials, and whether these individuals had a desire or
motive to retaliate against the appellant. Dorney, 117 M.S.P.R. 480, ¶ 15.
Because the administrative judge did not address whether the appellant proved
contributing factor using the types of evidence set forth in Dorney, we modify the
initial decision to do so.
The appellant did not submit her OIG or OSC complaints below, nor did
she testify regarding the contents of those complaints, including whether the
proposing or deciding official, or any other manager responsible for her removal,
was named in those complaints, or otherwise had a motive to retaliate against her.
The agency put forth strong evidence, in the administrative record and at the
hearing, establishing that the appellant failed to comply with the MDR. HR
(testimony of the proposing official, testimony of the deciding official); IAF,
Tab 7 at 9-116, Tab 8 at 4-96. Accordingly, we modify the initial decision to find
that, even considering evidence other than the knowledge/timing test, the
appellant failed to meet the contributing factor standard with respect to her
protected activity.5
Retaliation for protected EEO activity
The appellant also alleged that the agency removed her in retaliation for
protected EEO activity. IAF, Tab 17 at 9. Her EEO complaints included
allegations of reprisal, harassment, the removal of supervisory duties in violation
of Title VII, as well as the denial of her request for reasonable accommodations at
issue in the instant appeal. ID at 32; IAF, Tab 22 at 29-30; HT-1 at 198-201,
253-54 (testimony of the appellant). Applying the burden-shifting standard set
forth in Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 51 (2015)
5 Because we have found that the appellant failed to make a prima facie case of
whistleblower reprisal, it is unnecessary to determine whether the agency proved by
clear and convincing evidence that it would have taken the action at issue in the absence
of her disclosures or activity. Fisher v. Department of the Interior , 2023 MSPB 11,
¶ 10. Therefore, we vacate the administrative judge’s findings as to whether the agency
met its burden to prove that it would have removed the appellant absent her protected
disclosures and activity . ID at 54-55.13
overruled in part by Pridgen, 2022 MSPB 31, ¶¶ 23-25, the administrative judge
found that the appellant failed to establish that her EEO activity was a motivating
factor in the agency’s removal action. ID at 55-57. Title VII of the Civil Rights
Act of 1964, as amended, requires that actions “shall be made free from any
discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-16(a).
After the initial decision was issued, the Board effectively overruled
Savage to the extent that it shifted the burden to the agency to disprove
discrimination or reprisal. Pridgen, 2022 MSPB 31, ¶¶ 20, 22, 30, 40, 42, 47.
The Board clarified that an appellant who proves that discrimination or retaliation
under Title VII was a motivating factor in the contested personnel action may be
entitled to injunctive or other “forward-looking” relief, but to obtain the full
measure of relief, including status quo ante relief, compensatory damages, or
other forms of relief related to the end result of an employment decision, the
appellant must show that discrimination was a “but-for” cause of the action.
Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 31; Pridgen, 2022 MSPB 31,
¶¶ 20-22, 30. “But -for” causation is a higher burden than “motivating factor”
causation. Desjardin, 2023 MSPB 6, ¶ 31. The motivating factor standard does
not apply to claims of reprisal for engaging in activity protected under the
Rehabilitation Act of 1973 (Rehabilitation Act) such as the appellant’s claim here
that the agency retaliated against her for filing EEO complaints alleging denial of
reasonable accommodation. Pridgen, 2022 MSPB 31, ¶¶ 44-47. Instead, for an
ADAAA retaliation claim, the appellant must prove “but for” causation in the
first instance. Id.
The administrative judge found that the appellant filed EEO complaints
between 2014 and 2016, and the proposing and deciding officials were aware of
some of those complaints. ID at 56. However, she found that this evidence, in
combination with the appellant’s assertion that the deciding official “was not nice
to her on a couple of occasions,” was insufficient to meet the appellant’s burden.14
Id. We agree that this evidence is insufficient to show that the appellant’s EEO
activity was a motivating factor in her removal for failure to comply with the
MDR. ID at 57. Furthermore, because we agree with the administrative judge’s
determination that the appellant failed to satisfy the lesser of the two standards,
she necessarily failed to satisfy the more stringent standard applicable to her
Rehabilitation Act retaliation claim and to entitle her to the full measure of relief
for her Title VII claim. Desjardin, 2023 MSPB 6, ¶ 33.
Harmful procedural error
Concerning the affirmative defense of harmful procedural error, to
establish her claim, the appellant must prove that the agency committed an error
in the application of its procedures that is likely to have caused the agency to
reach a conclusion different from the one it would have reached in the absence or
cure of the error. 5 C.F.R. § 1201.4(r). For the following reasons, we agree with
the administrative judge that the appellant failed to meet her burden of proving
harmful procedural error. ID at 58. The appellant’s allegations on this issue all
concern the agency’s conduct of the MDR, for example, failing to issue her travel
orders yet still requiring her to change duty location. IAF, Tab 17 at 9-11. We
agree with the administrative judge that any alleged errors were harmless. ID
at 58. As noted above, the record reflects that the appellant was offered all of the
benefits that she requested in connection with the MDR, i.e., HHT, TQSE, and
PCS benefits, and she still declined it. IAF, Tab 8 at 4. The appellant fails to
show that she would have accepted the reassignment had she been offered all of
the benefits at the outset. IAF, Tab 17 at 9-11; 5 C.F.R. § 1201.4(r). The
appellant does not challenge the administrative judge’s denial of this affirmative
defense, and we discern no basis to disturb her findings.
The agency established a nexus between the appellant‘s failure to comply with the
MDR and the efficiency of the service, and that the penalty was reasonable.
We agree with the administrative judge that the agency established a nexus
between the appellant’s refusal to accept the MDR and the efficiency of the15
service. ID at 44-45. Our reviewing court found it “beyond dispute” that such a
failure to comply with an MDR “affects the agency’s ability to carry out its
mission” and therefore bears directly on the efficiency of the service. Cobert,
800 F.3d at 1351 (citations omitted).
Concerning the penalty, the appellant argues on review that that the
deciding official improperly considered periods of time during which she was on
approved leave in her penalty analysis. PFR File, Tab 1 at 5, 10-11. In support
of her argument, the appellant cites Bond v. Vance, 327 F.2d 901 (D.C. Cir.
1964). PFR File, Tab 1 at 11. The U.S. Circuit Court of Appeals of the District
of Columbia remanded that case to the Board to reconsider whether removal was
the appropriate remedy for an employee’s unauthorized absence after the court
found a portion of the absence was, in fact, authorized. Bond, 327 F.2d at 902.
As discussed above, the agency was not required to, and did not, use a
leave-related charge in the instant appeal. IAF, Tab 7 at 86.
We agree with the administrative judge that the agency appropriately
considered the appellant’s absence in the context of other mitigating and
aggravating penalty factors. ID at 44-45; see Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of
factors relevant to penalty determinations). For example, the agency concluded
that the appellant’s absence was an aggravating factor that interfered with the
agency’s ability to accomplish its mission and also reflected that it was unlikely
that she would report for duty. ID at 44; IAF, Tab 7 at 18-19. We decline to
disturb the administrative judge’s determination that removal was within the
bounds of reasonableness for failure to accept the MDR. ID at 47. 16
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.17
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any18
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s19
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 20
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.21 | Draughn_Velesa_DC-0752-17-0527-I-1_Final_Order.pdf | 2023-12-22 | VELESA DRAUGHN v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-17-0527-I-1, December 22, 2023 | DC-0752-17-0527-I-1 | NP |
2,588 | https://www.mspb.gov/decisions/nonprecedential/Espinoza_Richard_A_DE-0843-21-0125-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD A. ESPINOZA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0843-21-0125-I-1
DATE: December 22, 2023
THIS ORDER IS NONPRECEDENTIAL1
R
ichard A. Espinoza , Arvada, Colorado, pro se.
Karla W. Yeakle , 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 for lack of jurisdiction his appeal of the decision of the Office of
Personnel Management (OPM) denying him death benefits. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
initial decision, and REMAND the case to the Denver Field Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
On February 22, 2021, the appellant filed an appeal challenging a decision
by OPM that he was not entitled to a lump sum benefit based on the Federal
service of his late father. Initial Appeal File (IAF), Tab 1 at 4. On the appeals
form, the appellant answered “no” in response to the question that asked if he had
received a final decision from OPM. Id. at 3. In a Jurisdiction Order, the
administrative judge explained that, with limited exceptions, the Board has
jurisdiction over retirement matters only after OPM has issued a final decision
after a request for reconsideration of an initial decision. IAF, Tab 3 at 2. The
administrative judge advised the appellant that, if OPM has not yet issued a final
decision, the Board lacks jurisdiction over the matter and he would have to
request reconsideration, wait for a final decision from OPM, and then file a Board
appeal. Id. at 2-3. However, the administrative judge ordered that, if the
appellant believed that the Board has jurisdiction over his appeal, he must file
evidence and argument showing that the matter is within the Board’s jurisdiction,
and, if he was attempting to appeal an OPM final decision, he should provide a
copy. Id. at 3. The appellant did not respond.
In an initial decision, the administrative judge dismissed the appeal for lack
of jurisdiction. IAF, Tab 4, Initial Decision at 1, 3-4.
ANALYSIS
With his petition for review, the appellant has submitted, inter alia, a copy
of OPM’s February 1, 2012 final decision finding him ineligible to receive a lump
sum benefit based on his late father’s death. Petition for Review (PFR) File,
Tab 2 at 6.
As the administrative judge correctly found, the Board generally lacks
jurisdiction over a retirement appeal when OPM has not issued a reconsideration2
decision or final decision on the matter. See, e.g., Sims v. Office of Personnel
Management, 94 M.S.P.R. 102, ¶ 10 (2003). While the record below failed to
show that OPM had issued such a decision, the record on review establishes that
OPM had, in fact, issued the required final decision. PFR File, Tab 2 at 6.
Because OPM’s final decision establishes jurisdiction and was in effect
throughout the time the appeal was pending below, the proper remedy is to
remand the appeal to the field office for adjudication on the merits.2 Moorer v.
Office of Personnel Management , 104 M.S.P.R. 609, ¶ 10 (2007).
ORDER
For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
2 We note that OPM had already issued its final decision before the appellant filed his
appeal, and although he referred to it in his appeal, IAF, Tab 1 at 3, he did not submit it
until he filed his petition for review. However, it is relevant to the issue of the Board’s
jurisdiction, a matter that may be raised at any time during the Board proceedings, and
therefore, it is appropriate to consider it. Stoglin v. Department of the Air Force ,
123 M.S.P.R. 163, ¶ 7 (2015), aff’d, 640 F. App’x 864 (Fed. Cir. 2016).3 | Espinoza_Richard_A_DE-0843-21-0125-I-1_Remand_Order.pdf | 2023-12-22 | RICHARD A. ESPINOZA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0843-21-0125-I-1, December 22, 2023 | DE-0843-21-0125-I-1 | NP |
2,589 | https://www.mspb.gov/decisions/nonprecedential/Bigdeli_Amir_H_PH-0752-18-0300-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AMIR H. BIGDELI,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-18-0300-I-1
DATE: December 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Amir H. Bigdeli , Cream Ridge, New Jersey, pro se.
David S. Castro and Daniel C. Carleton , Joint Base
McGuire-Dix-Lakehurst, New Jersey, for the agency.
Hillary A. H. Spadaccini , Esquire, Lakehurst, New Jersey, 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 the agency’s indefinite suspension action as moot.
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
clarify the administrative judge’s analysis of the mootness issue, we AFFIRM the
initial decision.
BACKGROUND
The appellant held a Mechanical Engineer position with the agency. Initial
Appeal File (IAF), Tab 1 at 1, 17, 21. Effective March 17, 2015, the agency
suspended the appellant’s access to classified information and his eligibility for
assignment to a sensitive position. Id. at 15. The next day, he was placed on
administrative leave. Id. at 7. In a March 13, 2018 letter, the agency proposed
converting the appellant’s non-duty, pay status to an indefinite suspension
without pay. Id. at 17-18. In an April 2, 2018 letter, the agency decided to
indefinitely suspend the appellant pending the adjudication of his security
clearance case, effective April 9, 2018. Id. at 21-22.
The appellant appealed the indefinite suspension action to the Board, and
he requested a hearing. Id. at 1-8. He did not raise any affirmative defenses. Id.;
IAF, Tab 6, Initial Decision (ID) at 2 n.*. The agency filed a motion to dismiss
the appeal as moot because it had rescinded the indefinite suspension action.
IAF, Tab 4 at 4-6. The agency included a May 17, 2018 letter informing the2
appellant that the April 2, 2018 decision to impose the indefinite suspension was
being rescinded and that, “As a result of this action, you will be returned to a paid
administrative leave status effective immediately. Your administrative leave
status shall also be retroactive back to 9 April 2018.” Id. at 15. The letter further
stated that a new decision on the proposed indefinite suspension would be
forthcoming. Id. Without holding the requested hearing, the administrative judge
issued an initial decision dismissing the appeal as moot. ID at 1-2.
The appellant filed a petition for review asserting that he has not received
any pay and that the agency has reinstated his indefinite suspension. Petition for
Review (PFR) File, Tab 1 at 1-7.2 The agency filed a response opposing the
petition for review and claiming that his back pay is being processed.3 PFR File,
Tab 4 at 4-9. The Office of the Clerk of the Board issued an Order that ordered
both parties to provide evidence addressing whether the appellant has received
any pay and, if so, whether he has received the appropriate amount of pay and
whether he has been paid for the appropriate time period. PFR File, Tab 6 at 2.
The agency has filed multiple submissions in response. PFR File, Tabs 7, 11-12.
The appellant has not filed a response.
2 The appellant included a copy of the rescission letter that already is part of the record
before the administrative judge. PFR File, Tab 1 at 20; IAF, Tab 4 at 15. He also
included documentation concerning his discovery request. PFR File, Tab 1 at 17-19.
To the extent the appellant is raising a discovery issue, his failure to file a motion to
compel discovery precludes him from raising this issue for the first time on review.
Szejner v. Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5 (2005), aff’d,
167 F. App’x 217 (Fed. Cir. 2006). Further, the appellant submitted a copy of a
May 25, 2018 letter deciding to indefinitely suspend him effective the same date. PFR
File, Tab 1 at 21-22. As discussed below, we find that the agency’s new indefinite
suspension action is immaterial to the outcome of this appeal.
3 The agency included documentation that already is part of the record. PFR File, Tab 4
at 13-14, 16-23, 25; IAF, Tab 1 at 15-16, Tab 4 at 7-15. The agency also submitted a
copy of the May 25, 2018 indefinite suspension action. PFR File, Tab 4 at 26-27. The
agency’s remaining documentation that it submitted for the first time on review is not
relevant to the dispositive mootness issue. PFR File, Tab 4 at 10-12, 15, 24.3
DISCUSSION OF ARGUMENTS ON REVIEW
The agency has provided sufficient evidence on review to dismiss this appeal as
moot.
The Board’s jurisdiction is determined by the nature of an agency’s action
against a particular appellant at the time an appeal is filed with the Board, and an
agency’s unilateral modification of its action after an appeal has been filed cannot
divest the Board of jurisdiction unless the appellant consents to such divestiture
or unless the agency completely rescinds the action being appealed. Vidal v.
Department of Justice , 113 M.S.P.R. 254, ¶ 4 (2010). When an agency cancels or
rescinds an action after the action has been appealed, the Board may dismiss the
appeal as moot. Id. For an appeal to be rendered moot, an appellant must receive
all of the relief that he could have received if the matter had been adjudicated and
he had prevailed. Id. An agency’s expression of its intent to provide such relief
is not sufficient to establish that the appeal is moot. Id. An appeal is not truly
moot until all appropriate relief has been provided. Id.
Here, if the appellant had prevailed in this appeal, he could have been
retroactively returned to a non-duty, pay status, effective April 9, 2018. IAF,
Tab 4 at 13-15; see Sherrod v. Department of the Navy , 90 M.S.P.R. 347,
¶¶ 16-18 (2001) (finding that the appellant’s removal appeal was properly
dismissed as moot when he was returned to the status quo ante in an approved
leave status). The record before the administrative judge does not contain
evidence showing that the agency actually provided the appellant with such relief.
Thus, the appeal was not moot when the administrative judge issued the initial
decision. See Haskins v. Department of the Navy , 106 M.S.P.R. 616, ¶ 22 (2007)
(holding that an appeal may not be dismissed as moot until the agency provides
acceptable evidence showing that it has actually afforded the appellant all of the
relief that he could have received if the matter had been adjudicated and he had
prevailed). We modify the initial decision to clarify that, although the appeal was
not moot at the time the initial decision was issued, the agency has provided4
sufficient evidence on review to dismiss this appeal as moot. See Simnitt v.
Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 5 (2010) (observing that the
issue of the Board’s 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).
Specifically, the agency has submitted a Standard Form 50 (SF-50)
documenting the appellant’s new indefinite suspension, effective May 25, 2018,
and an SF-50 documenting his retirement, effective the same date. PFR File,
Tab 7 at 48-49. Thus, the back pay period is from April 9 through May 25, 2018.
The agency has submitted argument and evidence indicating that, on March 22,
2019, the Defense Finance and Accounting Service (DFAS) paid the appellant
$8,967.38 for “net-special pay.” PFR File, Tab 11 at 5, 7-10. The agency further
claims that, on March 22, 2019, DFAS paid the appellant $918.25 for annual
leave accrued during the back pay period and that, on April 19, 2019, DFAS
issued a $795.57 interest payment to him. PFR File, Tab 12 at 4 & n.1. The
agency’s assertions are consistent with its submission of a breakdown by DFAS
of the appellant’s back pay for the pay periods that ended on April 14 through
May 26, 2018. Id. at 6. The DFAS breakdown shows that the total net amount of
back pay is $10,681.20, consisting of $9,885.63 of net back pay and $795.57 of
interest on the gross back pay.4 Id. The appellant has not disputed the agency’s
arguments and evidence despite being advised in the Order that his failure to
respond to the Order may be deemed an admission by him that he has received all
of the pay that he could have received if he had prevailed before the Board on this
appeal. PFR File, Tab 6 at 2. Based on the agency’s submissions on review, and
in the absence of any argument from the appellant that the agency still has not
provided all the relief to which he is entitled, we find that the appeal is moot.5
4 It appears that the $9,885.63 net back pay consists of the alleged $918.25 amount for
annual leave and the $8,967.38 “net-special pay.” PFR File, Tab 11 at 7, Tab 12 at 4
n.1, 6.
5 The agency’s new indefinite suspension action does not preclude dismissing this
appeal as moot. The administrative judge mischaracterized the rescission letter as5
Accordingly, we affirm the dismissal of this appeal as moot.
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
stating that the appellant would be placed on administrative leave with pay pending
resolution of a security clearance issue. ID at 2. The rescission letter clearly informed
the appellant that a new decision on the proposed indefinite suspension would be
forthcoming. IAF, Tab 4 at 15. Accordingly, the appellant was not entitled to be
placed on administrative leave pending the resolution of his security clearance case.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file7
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and 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.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
for Merit Systems Protection Board appellants before the 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.10 | Bigdeli_Amir_H_PH-0752-18-0300-I-1__Final_Order.pdf | 2023-12-21 | AMIR H. BIGDELI v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-18-0300-I-1, December 21, 2023 | PH-0752-18-0300-I-1 | NP |
2,590 | https://www.mspb.gov/decisions/nonprecedential/Ellawendy_Abdel_Fatah_SF-0752-18-0471-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ABDELFATAH S. ELLAWENDY,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-0752-18-0471-I-1
DATE: December 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
AbdelFatah S. Ellawendy , Marina, California, pro se.
Andrea Campanile , APO, APO/FPO Pacific, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary resignation appeal for lack of jurisdiction. On petition
for review, the appellant argues, inter alia, that the agency violated his due
process rights and committed harmful error concerning its investigation of his
alleged misconduct, challenges its findings concerning that misconduct, and
reiterates his argument that the agency could not substantiate the grounds for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
which it proposed his removal. He also reiterates his argument that the agency
coerced him into resigning due to intolerable working conditions, and he argues
that he was discriminated against on the basis of religion and nationality. He
argues for the first time on review that the agency slandered him by accusing him
of a crime and also deceived him by telling him that a resignation would enable
him to come back to work following the conclusion of the investigation. Further,
he argues for the first time on review that he was mentally incompetent during
some of the events at issue in the 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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).2
2 To the extent that the appellant has raised allegations that the agency decision to
remove him, which precipitated his resignation, was the result of harmful error or
violated his due process rights, we lack jurisdiction over those claims. See Morrison v.
Department of the Navy , 122 M.S.P.R. 205, ¶¶ 5, 11 (2015) (observing that the Board
will not reach an appellant’s defenses to an alleged involuntary retirement absent a
determination that it has jurisdiction over the retirement as a constructive adverse
action).
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 any
5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C.______________________________
Jennifer Everling
Acting Clerk of the Board | Ellawendy_Abdel_Fatah_SF-0752-18-0471-I-1_Final_Order.pdf | 2023-12-21 | ABDELFATAH S. ELLAWENDY v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-0752-18-0471-I-1, December 21, 2023 | SF-0752-18-0471-I-1 | NP |
2,591 | https://www.mspb.gov/decisions/nonprecedential/Bauer_Chris_DC-0752-17-0160-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRIS BAUER,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-17-0160-I-1
DATE: December 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chris Bauer , Fredericksburg, Virginia, pro se.
Michael Steven Causey , Esquire, Washington, D.C., for the agency.
Susanna Gebhard , Esquire, Camp Springs, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only 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 as
to the basis for finding that the agency did not violate the appellant’s rights under
the Family and Medical Leave Act of 1993 (FMLA), and to find that the appellant
was disabled but did not prove his claim of disability discrimination under the
standards set forth in Pridgen v. Office of Management and Budget , 2022 MSPB
31, and Haas v. Department of Homeland Security , 2022 MSPB 36, we AFFIRM
the initial decision.
BACKGROUND
The appellant was employed as an Associate Legal Advisor. Initial Appeal
File (IAF), Tab 14 at 5. On November 24, 2015, the agency placed him on a
performance improvement plan (PIP) beginning on that date and concluding on
January 22, 2016. IAF, Tab 23 at 67-72. It is undisputed that he did not return to
work after receiving the PIP on November 24, 2015. IAF, Tab 37, Initial
Decision (ID) at 14 n.5.
The agency proposed his removal on December 1, 2016, on the basis of
28 specifications of absence without leave (AWOL) and 26 specifications of
failure to follow leave procedures during the period from February 8 to March 31,
2016. IAF, Tab 5 at 71-81. After considering the appellant’s written replies, the2
deciding official sustained the charges and underlying specifications and imposed
the removal. Id. At 19-25, 32-39, 68-70.
The appellant filed the instant appeal challenging his removal. IAF, Tab 1.
After conducting the appellant’s requested hearing, the administrative judge
affirmed the removal. ID at 1, 31. He merged the charges and sustained them.2
ID at 2-17. He also found that the appellant failed to prove his affirmative
defenses of equal employment opportunity (EEO) retaliation and disability
discrimination, the removal action promoted the efficiency of the service, and the
penalty was reasonable. ID at 2-31.
The appellant has filed a petition for review, the agency has responded in
opposition to his petition, and the appellant has replied. Petition for Review
(PFR) File, Tabs 3, 6-7.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has failed to present new and material evidence.
On review, the appellant asserts that we should overturn the initial decision
because he has presented new and material evidence that the deciding official
perjured herself when she testified at the hearing on July 31, 2017, that she was
not employed. PFR File, Tab 3 at 5-8. The appellant has submitted a Bloomberg
report indicating that the deciding official has been a partner at a law firm
beginning in July 2017, as well as a July 26, 2017 announcement from the law
firm’s website indicating that she would be joining the firm. Id. at 12-13.
The Board generally will not consider evidence submitted for the first time
on review absent a showing of the following: (1) the documents and the
2 The administrative judge did not sustain the specification related to the appellant’s
absence on April 1, 2015, because the agency listed the incorrect date. IAF, Tab 5
at 74, 78. The administrative judge reasoned that he could not assume that the appellant
had notice of the correct date before responding to the deciding official. ID at 3 n.1,
14, 16. On review, the agency observes that the administrative judge did not sustain the
specification, but neither party challenges this finding on review. PFR File, Tabs 3-4,
Tab 6 at 5 n. 1, Tab 7. Accordingly, we decline to disturb this finding.3
information contained in the documents were unavailable before the record closed
despite due diligence; and (2) the evidence is of sufficient weight to warrant an
outcome different from that of the initial decision. Cleaton v. Department of
Justice, 122 M.S.P.R. 296, ¶ 7 (2015), aff’d, 839 F.3d 1126 (Fed. Cir. 2016);
5 C.F.R. § 1201.115(d). Evidence offered merely to impeach a witness’s
credibility generally is not considered new and material unless it presents a
significant challenge to the witness’s credibility. Cole v. Department of the
Army, 78 M.S.P.R. 288, 293 (1998); Bucci v. Department of Education ,
42 M.S.P.R. 47, 55 (1989). The appellant offers the evidence and argument as to
the deciding official’s employment merely to impeach her testimony, and it
relates to her veracity on a matter that is not central to the issues in this case. See
Hill v. Department of the Army , 120 M.S.P.R. 340, ¶ 4 n.4 (2013) (declining to
consider an email and attached images, submitted for the first time on review, to
demonstrate that a witness who testified in favor of the appellant was not credible
because he had a cavalier attitude toward Government regulations and standards).
Therefore, we decline to consider it.3
The administrative judge properly sustained the charges but applied the incorrect
FMLA regulations.
The appellant has not challenged the initial decision to the extent that it
sustained the charges, and we find no reason to disturb these findings. ID
at 2-17. However, we modify the administrative judge’s findings that the agency
proved its AWOL charge to apply the correct FMLA regulations.
To prove an AWOL charge, an agency must show that an employee was
absent and either his absence was not authorized or his request for leave was
properly denied. Valenzuela v. Department of the Army , 107 M.S.P.R. 549, ¶ 9
3 Further, even if we did consider this evidence, we would not find that it diminishes the
deciding official’s credibility. Despite her testimony on July 31, 2017, that she was
unemployed, the firm’s announcement, from July 26, 2017, stated that she would be
joining the firm in the future. PFR File, Tab 3 at 13. Additionally, the public report
that the deciding official began working at the firm at some point in July 2017 is
insufficient to contradict her statement that she was unemployed.4
(2007). Thus, when FMLA is implicated relative to the AWOL charge, the
agency must prove that it complied with FMLA as part of its overall burden of
proving the AWOL charge. Ellshoff v. Department of the Interior , 76 M.S.P.R.
54, 73-74 (1997).
In determining the appellant’s entitlement to FMLA in the context of his
absences, the administrative judge cited 29 C.F.R. part 825. ID at 12-13.
However, the appellant’s entitlement to FMLA is determined pursuant to 5 C.F.R.
part 630. See 5 C.F.R. § 630.1201(b) (identifying those employees who are
subject to the regulations in 5 C.F.R. part 630); Somuk v. Department of the Navy ,
117 M.S.P.R. 18, ¶ 10 (2011) (applying the regulations at 5 C.F.R. part 630 in
analyzing whether an agency complied with its FMLA obligations). This error
does not provide a reason for disturbing the initial decision because it does not
affect the outcome, and an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision . Panter v.
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984).
Regarding specifications 3-27 of the AWOL charge, although he was
scheduled to work, the appellant never properly requested leave for these dates or
reported to work. ID at 2-3, 13-16. Accordingly, the administrative judge
properly sustained specifications 3-27. In specifications 1 and 2, the agency
charged that the appellant had requested leave but already had exhausted his
yearly entitlement of 12 weeks of FMLA -protected leave. IAF, Tab 5 at 71-74,
Tab 23 at 83-84; ID at 13; see 5 C.F.R. § 630.1203(a); 29 C.F.R. § 825.200(a).
We need not reach the issue of whether the agency was correct in denying
the appellant’s request for leave without pay on the two dates at issue in
specifications 1 and 2. An agency proves its charge even if it does not prove all
of the underlying specifications. See O’Lague v. Department of Veterans Affairs ,
123 M.S.P.R. 340, ¶ 11 (2016), aff’d per curiam , 698 F. App’x 1034 (Fed. Cir.
2017). Accordingly, because we find that the agency proved specifications 3-27,
we need not address whether it properly denied the leave that the appellant5
requested on the dates at issue in specifications 1-2. Thus, we sustain the charge
because the agency proved specifications 3-27.
The appellant failed to prove his claim of retaliation for prior EEO activity or for
requesting a reasonable accommodation.
Prior EEO Activity
The appellant asserted that the agency engaged in a concerted effort to fire
him, beginning with his placement on a PIP, in retaliation for his having filed an
EEO complaint. IAF, Tab 1 at 6. The agency’s counsel and the appellant
indicated that the appellant filed a formal EEO complaint that involved, among
other things, the agency’s decision to allow a female employee to telework while
renovations were being done at her house but to deny his request in March 2015
to telework while he was suffering mental health issues and his wife was due to
give birth to their second child. IAF, Tab 35, July 31, 2017 Hearing Compact
Disc (HCD 1), Track 1 at 1:04:07-1:07:16 (testimony of the appellant). The
administrative judge considered the evidence as a whole and found that the
appellant failed to prove his claim of EEO retaliation.4 ID at 17-20. In reaching
this conclusion, the administrative judge applied what was essentially a
motivating factor causation standard. ID at 17.
While a motivating factor causation standard is applicable to claims
alleging retaliation for EEO activity pertaining to discrimination on the basis of a
variety of improper considerations, including sex, race, and age, an appellant
alleging reprisal for activity protected under the Rehabilitation Act of 1973
(Rehabilitation Act) must prove “but-for” causation. Desjardin v. U.S. Postal
Service, 2023 MSPB 6, ¶¶ 27, 31 -33. Although the administrative judge here did
not consider or apply the more stringent “but-for” standard, because we agree
with his conclusion that the appellant failed to meet the lesser burden of proving
4 The appellant does not challenge the administrative judge’s assessment of the
evidence on review. Other than as modified above to find that the appellant failed to
prove retaliation under either a motivating or “but-for” causation standard, we discern
no basis to disturb his findings. 6
that any of his protected activity was a motivating factor in his removal, the
appellant necessarily failed to meet the more stringent “but-for” standard that
applies to his Americans with Disabilities Act Amendments Act of 2008
(ADAAA) retaliation claim. ID at 20; see Desjardin, 2023 MSPB 6, ¶ 33.
The appellant does not challenge the administrative judge’s assessment of
the evidence on review. Other than as modified above to find that the appellant
failed to prove retaliation under either a motivating factor or a “but-for” causation
standard, we discern no basis to disturb his findings. The appellant asserted
below that Employee A and Employee B were similarly situated but that neither
of them was disciplined. ID at 18-20; IAF, Tab 34 at 4-5. To be similarly
situated for purposes of discrimination under 5 U.S.C. § 2302(b)(1), a comparator
must have reported to the same supervisor, been subjected to the same standards
governing discipline, and engaged in conduct similar to the appellant’s without
differentiating or mitigating circumstances. Ly v. Department of the Treasury ,
118 M.S.P.R. 481, ¶ 10 (2012). The administrative judge observed that all three
employees requested a reasonable accommodation but that there was no
information as to whether Employee A or Employee B filed an EEO complaint.
ID at 19-20. Further, we observe that, even if the appellant was the only one of
the three employees to file an EEO complaint, these employees did not report to
the same supervisor as the appellant, and, unlike the appellant, they returned to
duty following an absence for medical reasons. IAF, Tab 34 at 4-5. Thus, these
employees are not valid comparators. See Ly, 118 M.S.P.R. 481, ¶¶ 8, 10 (finding
that the appellant was not similarly situated to an alleged comparator who, like
the appellant, failed to provide accurate information on an Optional Form 306;
different deciding officials determined the appropriate discipline and, unlike the
appellant, the alleged comparator did not fail to disclose information with an
intent to deceive).
The other evidence also does not support the appellant’s claim of
retaliation for EEO activity. The administrative judge considered that the7
appellant’s first -line supervisor and the deciding official were aware of his
reasonable accommodation request but found that this would not support imputing
a retaliatory motive to them on the basis of prior EEO activity. ID at 20. Further,
he determined that there was no evidence that the agency’s reason for removing
the appellant, his AWOL and failure to follow proper leave requesting
procedures, was pretextual. Id. After considering the evidence as a whole, we
find that the appellant has failed to demonstrate that his EEO activity was a
“but-for” cause or a motivating factor in his removal.
Reasonable Accommodation Request
To the extent that the appellant asserted below that the agency had
retaliated against him for requesting a reasonable accommodation, we find that he
has not established this claim because he has not demonstrated that filing his
request was a “but-for” cause of his removal. In Pridgen, 2022 M.S.P.R. 31,
¶¶ 43-48, we found that an appellant must prove that his accommodation request
was a “but-for” cause of the agency’s action. Nonetheless, we affirmed the initial
decision in that case, which found that the appellant failed to demonstrate
retaliation for her reasonable accommodation request using a motivating factor
causation standard. Id., ¶ 48. Although we issued Pridgen after the initial
decision in this appeal, we find that its application is not prejudicial because it
does not affect the disposition of the appellant’s claims of retaliation for filing a
reasonable accommodation request and disability discrimination. See Panter,
22 M.S.P.R. at 282.
Here, the administrative judge found that, although the appellant’s first-line
supervisor and the deciding official were aware of the appellant’s request for
reasonable accommodation, there was no evidence to suggest they considered it
when deciding that he had failed to request leave yet remained absent from duty.
ID at 20. Although the administrative judge appears to have applied the lower
motivating factor causation standard, we find no error in the conclusion that the
appellant failed to prove causation. ID at 17, 20. Thus, we affirm the initial8
decision as modified to find that the appellant did not meet his burden to establish
that, but for his reasonable accommodation request, the agency would not have
removed him. ID at 17, 20; Pridgen, 2022 M.S.P.R. 31, ¶ 48.
We modify the initial decision as to the appellant’s status-based and reasonable
accommodation disability discrimination claims to find that he failed to prove he
was a qualified individual with a disability.
The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act. Haas, 2022 MSPB 36, ¶ 28. The
Rehabilitation Act has incorporated the standards of the Americans with
Disabilities Act (ADA), as amended by the ADAAA. Id. Therefore, we apply
those standards to determine if there has been a Rehabilitation Act violation. Id.
In particular, the ADA provides that it is illegal for an employer to deny a
reasonable accommodation to, or “discriminate against[,] a qualified individual
on the basis of disability.” 42 U.S.C. § 12112(a), (b)(5); Haas, 2022 MSPB 36,
¶ 28. Thus, both a claim of disability based on an individual’s status as disabled
and a claim based on an agency’s failure to reasonably accommodate that
disability require that the individual prove he is “qualified.” Haas, 2022 MSPB
36, ¶¶ 28-29.
The administrative judge found that the appellant was not an individual
with a disability because the evidence suggested that he could perform his work,
but at a different location under a different supervisor. ID at 26-27. The
administrative judge further reasoned that, to the extent that the appellant had an
impairment, it was the stress of his particular work environment, rather than his
inability to perform work as an attorney, that contributed to his purported
condition. Id. The appellant does not dispute these findings on review. While
we agree with the administrative judge that the appellant failed to establish his
claims on the basis of disability, we modify the initial decision to find that the9
appellant established that he was an individual with a disability but that he did
not establish that he was “qualified.”
A disability is defined, in pertinent part, as “a physical or mental
impairment that substantially limits one or more major life activities.” 42 U.S.C.
§ 12102(1)(A); McNab v. Department of the Army , 121 M.S.P.R. 661, ¶ 7 (2014).
The administrative judge found that the appellant was not an individual with a
disability because he determined that the appellant established, at most, that he
could not meet the demands of a particular job and not that he was foreclosed
from any major life activity or type of employment. ID at 22-26. We modify this
determination as we find that, because the appellant was diagnosed with major
depressive disorder, he was an individual with a disability.
A major life activity includes the operation of a “major bodily function,”
including brain functioning. ADAAA, Pub. L. No. 110-325, § 4(a), 122 Stat.
3553, 3555 (2008) (codified at 42 U.S.C. § 12102(2)(B)). The Equal
Employment Opportunity Commission (EEOC), which is authorized to implement
the definition of disability under the statute, 42 U.S.C. §§ 12116, 12205a, stated
that “it should easily be concluded” that, along with other disorders, major
depressive disorder substantially limits this major life activity, 29 C.F.R.
§ 1630.2(j)(3)(iii). The appellant’s psychologist indicated in August 2015 and
March 2016 that the appellant suffered from major depressive disorder, and
neither party has questioned this diagnosis. IAF, Tab 20 at 41, 83. Thus, we
modify the initial decision to find that, by definition, the appellant was an
individual with a disability. See McNab, 121 M.S.P.R. 661, ¶ 8 (finding that,
regardless of the knowledge of agency officials as to the severity of the
appellant’s condition, he was, by definition, an individual with a disability by
virtue of his major depressive disorder).
Although we find that the appellant was an individual with a disability, we
affirm as modified the administrative judge’s finding that the agency did not
violate the Rehabilitation Act. As reflected above, the Board recently clarified10
that only an otherwise qualified individual with a disability is entitled to relief,
whether the individual alleges disability discrimination based on a disparate
treatment or reasonable accommodation theory. Haas, 2022 MSPB 36, ¶¶ 28-29.
A qualified individual with a disability is one who can “perform the
essential functions of the . . . position that such individual holds or desires” with
or without reasonable accommodation. 42 U.S.C. § 12111(8). An employer is
required to provide reasonable accommodation to an otherwise qualified
individual with a disability. 42 U.S.C. § 12112(b)(5). Much of the
administrative judge’s analysis on whether the appellant was disabled is
instructive as to whether the appellant could perform the essential functions of his
position, with or without reasonable accommodation.
The appellant requested to telework full time under “different
management.” IAF, Tab 23 at 29-31, 33. The administrative judge observed that
the appellant’s supervisor and the deciding official testified that the agency did
not allow attorneys like the appellant to telework fulltime because they handled
sensitive information, much of which was classified or law enforcement sensitive.
ID at 8, 25. The appellant did not dispute this below, and again does not do so on
review. Moreover, the administrative judge concluded, based on the testimony of
agency officials, that the appellant’s other requested accommodations, such as
working with a different supervisor or on a different floor from his current
supervisor to reduce his stress, were not reasonable alternatives that would allow
his office to accomplish its mission. ID at 25-26. We agree with his reasoning.
The appellant was essentially seeking reassignment to a new supervisor, which
does not constitute a request for reasonable accommodation. Id.; EEOC,
Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under
the ADA, Question 33 (Oct. 17, 2002) (stating that “ [a]n employer does not have
to provide an employee with a new supervisor as a reasonable accommodation”) ;
see also, e.g., Roberts v. Permanente Medical Group, Inc. , 690 F. App’x 535, 536
(9th Cir. 2017) (holding that a request for a new supervisor “is per se11
unreasonable under [EEOC] guidelines”); Kennedy v. Dresser Rand Co. , 193 F.3d
120, 122-23 (2d Cir. 1999) (rejecting a rule that changing supervisors is “per se”
an unreasonable accommodation, and adopting instead a rebuttable presumption
that it is unreasonable); Gaul v. Lucent Technologies Inc. , 134 F.3d 576, 578-81
(3rd Cir. 1998) (holding that a request to be transferred away from a supervisor
who was causing a plaintiff stress was “unreasonable as a matter of law”); Weiler
v. Household Finance Corp. , 101 F.3d 519, 525-27 (7th Cir. 1996) (holding that a
failure to grant the plaintiff’s request for reassignment to a different supervisor
did not constitute a failure to grant a reasonable accommodation).5
It is the appellant’s burden of proof for his affirmative defenses, 5 C.F.R.
§ 1201.56(b)(2)(i)(C), and he has provided little more than a conclusory assertion
that he could have performed his or other positions with the agency. Thus, we
find that, even though he is an individual with a disability, he is not a qualified
individual with a disability.
The administrative judge correctly sustained the penalty.
In sustaining the penalty of removal, the administrative judge deferred to
the agency’s penalty selection. ID at 31. He found that the deciding official
appropriately considered the relevant mitigating factors, and that removal was
within the tolerable limits of reasonableness. Id.; see Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of
factors relevant to penalty determinations, and observing that the Board’s review
of an agency-imposed penalty is essentially to assure that the agency
conscientiously considered the relevant factors and struck a responsible balance
within tolerable limits of reasonableness). The appellant appears to argue on
review that the deciding official’s penalty analysis is not entitled to deference.
PFR File, Tab 3 at 6. In particular, he suggests that the deciding official
5 Decisions of courts other than the U.S. Court of Appeals for the Federal Circuit,
although not binding, may be followed if the Board finds the reasoning persuasive.
Malloy v. Department of State , 2022 MSPB 14, ¶ 13.12
improperly considered as an aggravating factor that the appellant was on notice of
how to request leave. Id.; IAF, Tab 5 at 29. We are not persuaded.
One of the factors that may be relevant to a penalty determination is the
clarity with which the employee was on notice of any rules that were violated.
Douglas, 5 M.S.P.R. at 305. Here, as it concerned the charge of failure to follow
leave procedures, the deciding official found that the appellant was aware of how
to properly request leave for his absences. IAF, Tab 5 at 29, Tab 36, August 2,
2017 Hearing Compact Disc (HCD 2), Track 1 at 1:17:01-1:17:54 (testimony of
the deciding official); ID at 28-29; see Shiflett v. Department of Justice ,
98 M.S.P.R. 289, ¶ 12 (2005) (observing that the fact that a charge has been
merged into another does not mean that the duplicative charge is not sustained, or
that the appellant’s misconduct somehow becomes less serious by virtue of the
merger). Thus, the deciding official concluded that the appellant was clearly on
notice of the rules that he violated, which she considered to be an aggravating
factor. IAF, Tab 5 at 29.
In finding that the deciding official’s consideration of this Douglas factor
was appropriate, the administrative judge quoted the deciding official as referring
to the leave requesting procedures as the “rules of engagement.” Id.; HCD 2,
Track 1 at 1:47:17-1:49:00 (testimony of the deciding official). On review, the
appellant cites this testimony, and he asserts that the deciding official is referring
to requesting leave as a “negotiation.” PFR File, Tab 3 at 6. He characterizes
this testimony as “confusing[],” but does not challenge the finding that he was on
notice of how to properly request leave. Id. The record supports the deciding
official’s conclusion that the appellant’s supervisor advised him that, absent a
medical emergency, he was required to request leave in advance of its use, and
that he failed to follow this instruction. IAF, Tab 5 at 74-78, Tab 6 at 115.
Therefore, we agree with the administrative judge that the deciding official’s
consideration of this factor was appropriate. ID at 29, 31.13
To the extent that the appellant asserts that he was subjected to a disparate
penalty, we find insufficient evidence to support this argument. PFR File, Tab 3
at 9-11; IAF, Tab 28 at 4-5. As the Board held in Singh v. U.S. Postal Service ,
2022 MSPB 15, ¶ 14, in assessing an agency’s penalty determination, the relevant
inquiry is whether the agency knowingly and unjustifiably treated employees
differently. Further, for purposes of a disparate penalties analysis, similarly
situated employees are those who engaged in the same or similar offenses. Id.,
¶ 17. While the appellant alleged that other employees were allowed to use
volunteered leave, he has not disputed the administrative judge’s finding that,
during the time the appellant was deemed AWOL, he had no volunteered leave
available. ID at 4-5; IAF, Tab 14 at 6. Nor has the appellant shown that the
purported comparators had other circumstances that closely resemble his own.
See Singh, 2022 MSPB 15, ¶ 13. Thus, his allegations are insufficient to support
his disparate penalties argument.
In sum, we find that the appellant has not presented new and material
evidence or argument in support of his appeal. Further, he has not proven his
affirmative defenses of EEO retaliation and, even though we find that he is an
individual with a disability, he has not proven disability discrimination on any
basis, including disparate treatment, failure to provide a reasonable
accommodation, or retaliation for engaging in protected activity. Additionally,
we agree with the administrative judge’s finding that the penalty of removal was
appropriate. Accordingly, we affirm the initial decision and sustain 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
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
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular15
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 16
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of17
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 18
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.19 | Bauer_Chris_DC-0752-17-0160-I-1_Final_Order.pdf | 2023-12-21 | CHRIS BAUER v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-17-0160-I-1, December 21, 2023 | DC-0752-17-0160-I-1 | NP |
2,592 | https://www.mspb.gov/decisions/nonprecedential/Ferry_David_DC-0752-21-0106-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID FERRY,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DC-0752-21-0106-I-1
DATE: December 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mary Kuntz , Esquire, Washington, D.C., for the appellant.
Robert P. Erbe , Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
upheld his removal based on sustained charges of conduct unbecoming a Federal
employee and unacceptable performance. For the reasons discussed below, we
GRANT the appellant’s petition for review. We AFFIRM the administrative
judge’s decision to sustain the charges and her conclusion that the agency proved
nexus. However, we VACATE the administrative judge’s penalty analysis.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Instead, based on our assessment of the relevant penalty factors, we FIND that a
30-day suspension is the maximum reasonable penalty for the sustained
misconduct.
BACKGROUND
The appellant was a Supervisory General Engineer in the Air Force Civil
Engineer Center Design and Construction Office at Ramstein Air Base, Germany,
who was reassigned to a GS-14 General Engineer position for a temporary duty
assignment (TDY) to a 10-month Civilian Developmental Education Program at
the Air War College (AWC) in Montgomery, Alabama. The TDY began on
July 9, 2019. During the 10 months that the appellant was at AWC, he failed to
respond to his supervisor’s repeated attempts to communicate with him
concerning time and attendance matters and outplacement opportunities and
began having problems meeting AWC academic requirements in 2020. Initial
Appeal File (IAF), Tab 37 at 2, 14-16. On February 27, 2020, after the appellant
failed to show progress on a self-led research project, despite counseling and
assignment of a writing coach, the AWC Dean placed the appellant on academic
probation. IAF, Tab 25 at 105. When the appellant continued to struggle to meet
his academic obligations, on March 27, 2020, the Dean placed the appellant on
academic probation a second time for failure to complete final papers for three of
his courses. Id. at 106. The Dean warned the appellant that he could be
disenrolled from AWC if he did not meet the submission dates for his final and
mid-term papers. Id.
On May 1, 2020, after determining that the appellant had not turned in two
of his final papers, the Dean advised the appellant’s supervisor that the appellant
would be disenrolled from the AWC. IAF, Tab 37 at 16. On May 11, 2020, the
AWC issued to the appellant a Notification of Summary Disenrollment for failure
to meet academic requirements. IAF, Tab 25 at 64. Because the appellant failed
to meet performance expectations that had been tailored to his attendance at2
AWC, his performance for the rating cycle that ended on March 31, 2020, was
unacceptable on four of the five performance elements, and he received a
summary rating of unacceptable. IAF, Tab 20 at 12-19.
The agency removed the appellant, effective October 28, 2020, based on
charges of failure to maintain his security clearance as a condition of
employment, conduct unbecoming a Federal employee, and unacceptable
performance. IAF, Tab 19 at 10-13, Tab 25 at 5-9. The appellant filed a Board
appeal and withdrew his hearing request. IAF, Tabs 1, 22. The administrative
judge issued an initial decision in which she sustained the conduct unbecoming
and unacceptable performance charges, found that the agency proved nexus, and
concluded that removal was the maximum reasonable penalty for the sustained
misconduct. IAF, Tab 38, Initial Decision (ID) at 10-21. The appellant has filed
a petition for review, and the agency has filed a response. Petition for Review
(PFR) File, Tabs 3, 7.
DISCUSSION OF ARGUMENTS ON REVIEW
An agency must establish the following three things to withstand a
challenge to an adverse action against an employee pursuant to 5 U.S.C.
chapter 75: (1) it must prove by a preponderance of the evidence that the charged
conduct occurred; (2) it must establish a nexus between that conduct and the
efficiency of the service; and (3) it must demonstrate that the penalty imposed is
reasonable. 5 U.S.C. §§ 7513(a), 7701(c)(1)(B); Malloy v. U.S. Postal Service ,
578 F.3d 1351, 1356 (Fed. Cir. 2009); Pope v. U.S. Postal Service , 114 F.3d
1144, 1147 (Fed. Cir. 1997). In his petition for review, the appellant concedes
that the agency proved the conduct unbecoming and unacceptable performance
charges, and it proved nexus. PFR File, Tab 3 at 16. We discern no error with
the administrative judge’s conclusions in this regard, and we affirm them herein.
ID at 10-17. The only issue before the Board is the reasonableness of the removal
penalty. PFR File, Tab 3 at 16. 3
In the initial decision, the administrative judge independently assessed the
relevant penalty factors because she did not sustain all of the charges and the
deciding official did not indicate that he would have imposed a lesser penalty if
fewer than all charges were sustained. ID at 18. In pertinent part, the
administrative judge noted that the unacceptable performance charge was “very
serious,” particularly given the appellant’s high grade level and purpose at the
AWC, a prestigious 10-month program that was to result in the appellant earning
a master’s degree in Strategic Studies. Id. She also noted that successful
completion of the AWC program was the appellant’s singular objective for the
entire performance year, and he failed in this objective when he was placed on
probation twice and disenrolled from AWC. Id. She further noted that the
misconduct was repetitive, but there was no indication that the misconduct was
committed maliciously or for personal gain. ID at 18-19. The administrative
judge found that the sustained misconduct in the conduct unbecoming charge was
“very serious,” particularly since he was a high-level employee who was trusted
to operate remotely during the 10-month AWC program, and he abused that trust.
ID at 19. The administrative judge considered other relevant factors, such as the
appellant’s inability to perform at a satisfactory level, his supervisor’s
significantly diminished confidence in his ability to perform assigned tasks, and
the fact that he was on notice that his actions constituted misconduct. ID
at 19-20. The administrative judge also considered mitigating factors, such as the
appellant’s more than 20 years of Federal service, his history of good
performance, and his “unblemished disciplinary record.” ID at 20. The
administrative judge further considered that the appellant’s mental health
struggles during this time were a “significant mitigating factor.” Id. She noted
that the appellant had potential for rehabilitation because of his commitment to
continued mental health treatment, but she found that a lesser penalty was
unlikely to deter future misconduct. Id. Ultimately, the administrative judge
concluded that the appellant’s misconduct was “too serious, to[o] extensive, and4
too repetitive” to be mitigated, and she concluded that removal was the maximum
penalty for the sustained misconduct. ID at 20-21.
On review, the appellant argues that the removal penalty is not reasonable
considering the penalty factors involving the potential for rehabilitation,
mitigating factors, and the adequacy and effectiveness of alternative sanctions to
deter such conduct. PFR File, Tab 3 at 16. For example, the appellant asserts
that the administrative judge erred when she “reviewed quickly” the mitigating
factors and failed to consider the “specific connection” between his diagnoses and
the sustained misconduct.2 Id. at 20. He also asserts that the “substantial
mitigating force of mental impairments regularly outweighs even serious
aggravating factors.” Id. at 21-23 (citing Malloy, 578 F.3d at 1356-57, Bal v.
Department of the Navy , 729 F. App’x 923 (Fed. Cir. 2018), and Bowman v.
Small Business Administration , 122 M.S.P.R. 217 (2015)). The appellant further
asserts that, when mitigating factors are properly evaluated, the maximum
reasonable penalty for the sustained misconduct is a 30-day suspension. Id. at 34.
Legal standard for evaluating the penalty
When the Board sustains fewer than all of the agency’s charges, the Board
may mitigate to the maximum reasonable penalty so long as the agency has not
indicated either in its final decision or during proceedings before the Board that it
desires that a lesser penalty be imposed on fewer charges.3 Lachance v. Devall ,
178 F.3d 1246, 1260 (Fed. Cir. 1999). The U.S. Court of Appeals for the Federal
Circuit recently held that, in a situation in which fewer than all charges are
sustained, the penalty factors should be independently analyzed. Williams v.
2 Contrary to the petition for review, the administrative judge acknowledged in general
terms the connection between the appellant’s medical conditions and the sustained
misconduct. See ID at 20 (“It is unrebutted in the record that the appellant’s
then-undiagnosed depression and attention deficit disorder . . . significantly impacted
his ability to perform his duties and maintain communications with [his supervisor].”).
3 The deciding official did not indicate in his decision letter that he would have imposed
a lesser penalty if fewer than all three charges were sustained. ID at 18; IAF, Tab 19
at 10-13.5
Federal Bureau of Prisons , 72 F.4th 1281, 1284 (Fed. Cir. 2023). Because the
administrative judge only sustained the conduct unbecoming and unacceptable
performance charges , a decision which we have affirmed herein, we will conduct
an independent assessment of the penalty factors as set forth in Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981).4 We have considered
the relevant Douglas factors. For the following reasons, we conclude that a
30-day suspension is the maximum reasonable penalty for the sustained
misconduct.
Discussion of the Douglas factors
The nature and seriousness of the offense, and its relation to the employee’s
duties, position, and responsibilities, including whether the offense was
intentional or technical or inadvertent, or was committed maliciously or for gain,
or was frequently repeated
The nature and seriousness of the offense, and its relation to the appellant’s
duties, position, and responsibilities, is the most important factor in assessing the
reasonableness of a penalty. Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 18.
There is no doubt that conduct unbecoming a Federal employee and unacceptable
performance are serious charges. Moore v. Department of the Army , 59 M.S.P.R.
261, 267 n.2 (Fed. Cir. 1993); Hellein v. Department of Agriculture , 8 M.S.P.R.
373, 375 (1981). The conduct underlying the sustained charges occurred over the
course of 10 months and was frequently repeated. Moreover, the administrative
judge correctly described that completion of the AWC program was the
appellant’s “singular objective” for the entire performance year. ID at 18. Thus,
his unacceptable performance was directly related to his position. It does not
appear, however, that any of the misconduct was committed maliciously or for
gain.
4 Because we are conducting an independent analysis of the penalty factors, we need not
address the appellant’s arguments regarding the agency’s analysis of these factors. PFR
File, Tab 3 at 15-18.6
The employee’s job level and type of employment, including supervisory or
fiduciary role, contacts with the public, and prominence of the position
The parties do not dispute that, immediately prior to his entry at the AWC,
the appellant was a supervisor, but he was not a supervisor during his time at
AWC. IAF, Tab 19 at 21-22, 94, Tab 20 at 49-54, Tab 25 at 98. However, the
appellant was an experienced GS-14 General Engineer attending a prestigious
program, which would have resulted in a master’s degree in Strategic Studies, and
for which he was entirely remote.
The employee’s past disciplinary record
The appellant had no prior disciplinary record. IAF, Tab 25 at 98.
The employee’s past work record, including length of service, performance on the
job, ability to get along with fellow workers, and dependability
The parties do not dispute that the appellant had approximately 23 years of
prior Federal service. The parties acknowledge that, for the two appraisal periods
prior to the 2020 removal, the appellant was rated as Exceptional or Outstanding,
and there was no indication that he did not get along with colleagues or had any
difficulty working with other employees both before and during his time at AWC.
IAF, Tab 19 at 37, 70-84, Tab 25 at 98. In fact, his supervisors for the approximately
9 years prior to his removal, including a lengthy period during which he was stationed in
Germany, all provided overwhelmingly positive statements regarding the appellant’s
performance, leadership, and professionalism. IAF, Tab 19 at 39-41. In short, the
appellant appears to have been an exemplary employee prior to his attendance at AWC.
We acknowledge, however, that the appellant’s failure to maintain contact with
his supervisor or advise her of any of his academic difficulties at AWC is
evidence of a lack of dependability. IAF, Tab 37 at 14-16. 7
The effect of the offense upon the employee’s ability to perform at a satisfactory
level and its effect upon supervisors’ confidence in the employee’s ability to
perform assigned duties
In her declaration made under penalty of perjury, the appellant’s supervisor
described the “extraordinary measures” that she had to take to “get responses
[from the appellant] to basic questions” from July 2019 to April 2020, and how
she was “blind-sided” by the “devastating news” regarding his academic problems
and disenrollment from the AWC. IAF, Tab 37 at 14-16. Furthermore, she stated
in her Douglas factors analysis that there was “definitely . . . a loss of trust and
confidence” in the appellant’s ability to perform assigned duties. IAF, Tab 25
at 85. The administrative judge found reasonable the supervisor’s statement that
she doubted the appellant’s ability to perform his duties going forward. ID at 19.
While it is understandable that the appellant’s issues during his time at AWC
affected his supervisor’s belief in his ability to perform his duties, in light of the
surrounding circumstances and mitigating factors discussed below, we conclude
that the sustained offenses do not show that the appellant will be unable to
perform at a satisfactory level when performing the duties of his position of
record.
The consistency of the penalty with those imposed upon other employees for the
same or similar offenses
There is no allegation of disparate penalties in this matter.
The consistency of the penalty with any applicable agency table of penalties
The proposing official stated that, for a first offense of conduct
unbecoming, the proposed penalty is a reprimand to a removal. IAF, Tab 25
at 87. The deciding official stated in his Douglas factors checklist that the
charged conduct was listed in the table of penalties and that the proposed penalty
was within the range identified therein. Id. at 99. Although we are unable to find
the agency’s table of penalties in the record, the appellant does not contend on
review that removal is inconsistent with the agency’s table of penalties.8
The notoriety of the offense or its impact upon the reputation of the agency
There is no notoriety involved in this matter.
The clarity with which the employee was on notice of any rules that were violated
in committing the offense, or had been warned about the conduct in question
The appellant does not dispute that he needed to maintain regular contact
with his supervisor while he was at AWC or that he needed to comply with AWC
academic requirements.
The potential for the employee’s rehabilitation
The Board has found that an appellant seeking treatment for his medical
problems indicates a potential for rehabilitation. Vitanza v. U.S. Postal Service ,
89 M.S.P.R. 319, ¶ 6 (2001); Bond v. Department of Energy , 82 M.S.P.R. 534,
545 (1999); see Bal, 729 F. App’x at 929 (finding that Mr. Bal demonstrated a
potential for rehabilitation through “competent evidence” that he, among other
things, continued to seek counseling). As discussed further below, the appellant
had significant potential for rehabilitation because of his commitment to ongoing
mental health treatment. ID at 20; IAF, Tab 19 at 18, 32, 34-35.
Mitigating circumstances surrounding the offense such as unusual job tensions,
personality problems, mental impairment, harassment, or bad faith, malice or
provocation on the part of others involved in the matter
Evidence that an employee’s mental impairment played a part in the
charged conduct is ordinarily entitled to considerable weight as a mitigating
factor. Malloy, 578 F.3d at 1357; Bowman, 122 M.S.P.R. 217, ¶ 13. We have
considered the evidence in the record relating to the appellant’s mental health
conditions and the sustained misconduct.
The appellant stated in an August 31, 2020 declaration, made under penalty
of perjury, that he had a “growing sense that I was struggling with some sort of
mental health issue” while at AWC, and in the spring of 2020 he began an initial
evaluation and treatment with a physician on staff at AWC “for what he suspected
(and was later confirmed) was a depressive disorder.” IAF, Tab 21 at 30. After9
the appellant returned to his duty station in Washington, D.C., in June 2020, he
began seeing a psychologist. Id. at 18. The psychologist diagnosed the appellant
with Major Depressive Disorder, recurrent, moderate, and attention deficit
disorder (ADD), and began treating the appellant’s depression through medication
and psychotherapy. IAF, Tab 19 at 34.
The psychologist explained how the appellant’s conditions affected him,
stating that “symptoms of depression and [the appellant’s] difficulties with
concentrating, paying attention, and procrastination[] all would likely have
contributed to his recent work difficulties.” Id. at 35. The psychologist further
explained that “depression interferes with a person’s ability to function in all
areas of life,” and the appellant “described . . . having felt hopeless at times over
the last few years due to his depression,” which would have “negatively
impacted . . . his job performance.” Id. He also explained that “[p]eople with
ADD often do well in situations where they are dealing with a stream of novel
stimulation,” such as the appellant’s previous jobs where he had to “put out fires”
and “[deal with] a new problem every day.” Id. However, when the appellant
was at AWC, “he had long stretches when he was on his own, dealing with a
long-term assignment,” and “[p]eople with ADD . . . tend to have difficulty
working in these conditions.” Id. The psychologist further explained that the
appellant’s “depression worsened due to his difficulty coping with school, which
further negatively affected his ability to function.” Id. The appellant’s
psychologist stated that he was “confident that if [the appellant] continues to
receive treatment for his depression and also receives help managing his
difficulties with attention, concentration, and procrastination, his mood will
improve and he will be able to learn and utilize strategies to deal with the
stressors that have negatively impacted on his work performance in recent years”10
and “he will be able to perform in his job at his previous level of exemplary
functioning.”5 Id.
In his declaration, the appellant stated that he continues to see his therapist
and take his medication. Id. at 32. He observed that he had “gradual but
measurable” improvement. Id. He stated that receiving the notice of proposed
removal was a “significant additional stressor,” and he increased the frequency of
his therapy sessions as a result. Id. He also observed that his “ability to respond
positively to significant increased stress and continue to function” is “a positive
sign of [his] condition responding to treatment and a return to normalcy.” Id.
In a September 24, 2020 note, the appellant’s psychologist stated that the
appellant “is making progress both in a reduction of symptoms of depression and
in managing the symptoms of his [ADD].” Id. at 18. The psychologist explained
that his assessment was based on his observation of the appellant “being able to
plan and execute action on his behalf,” “[seeking] out and . . . attending a weekly
group to help him successfully manage his difficulties with attention,
concentration, and procrastination,” and continuing to take his prescribed
medication and attend twice weekly therapy sessions. Id. The psychologist
concluded that he was “confident” that the appellant “will continue to diligently
pursue the above steps and continue to make progress.” Id.
We also acknowledge that, when the appellant first began to recognize that
he was having mental health issues, he was away from home while at AWC and
was less able to effectively address his problems than he would have been if he
had been performing his normal duties at his duty station. Moreover, although
the appellant’s difficulties began prior to the COVID-19 pandemic, the record
indicates that his performance and communication issues appear to have peaked
5 The Board has found that a mental impairment is not a significant mitigating factor in
the absence of evidence that the impairment can be remedied or controlled, i.e., when
the potential for rehabilitation is poor. Mingledough v. Department of Veterans Affairs ,
88 M.S.P.R. 452, ¶ 12 (2001). Based on the medical documentation, it appears that the
appellant’s mental impairments could be controlled.11
following the quarantine instituted after the pandemic began in March 2020. The
appellant provided evidence that his isolation during this period exacerbated his
conditions. IAF, Tab 19 at 30.
The adequacy and effectiveness of alternative sanctions to deter such conduct in
the future by the employee or others
The deciding official stated in the decision letter that, considering the
“gravity of the collective misconduct and the adverse impact on the
[G]overnment, alternative/lesser sanctions would be inappropriate, inadequate,
and ineffective in deterring such conduct in the future.” IAF, Tab 19 at 10-11.
The appellant, in his response to the notice of proposed removal, proposed
reinstatement with conditions, including an annual mental health fitness-for-duty
examination, compliance with mental health therapy, and participation in mental
health outreach. Id. at 23-24. Under the unique circumstances of this case,
including the ample evidence that the appellant’s mental health conditions
contributed to the misconduct, his stated commitment to continuing mental health
treatment, and his previous exemplary work record, we conclude that a
suspension would be an adequate deterrent to future misconduct.
A 30-day suspension is the maximum reasonable penalty for the sustained
misconduct.
Based on our review of the Douglas factors, while there are a number of
aggravating factors, there are also significant mitigating factors. Importantly, the
appellant has established that his mental health conditions are connected to the
sustained misconduct, and we agree with his assertion that his conditions should
be considered as a substantial mitigating factor. We have also considered the
appellant’s reliance on Malloy, Bal, Bowman, and other cases to support the
proposition that the removal penalty should be mitigated. PFR File, Tab 3
at 21-23. Indeed, the appellant correctly notes that there are many similarities
between the aggravating and mitigating factors in those cases and in this case. Id.12
We agree with the appellant that, under the circumstances of this case,
removal exceeds the maximum reasonable penalty. Rather, considering the
unrebutted opinion of the appellant’s psychologist—that the appellant’s mental
health was being treated successfully and he will be able to resume functioning at
a high level in the workplace—as well as the appellant’s excellent past work
record and many years of service without prior discipline, the appellant has a
strong potential for rehabilitation. We therefore conclude that a 30 -day
suspension is the maximum reasonable penalty for the sustained misconduct. See,
e.g., Bowman, 122 M.S.P.R. 217, ¶¶ 13-15 (finding that a 30-day suspension is
the maximum reasonable penalty based on the medical evidence and hearing
testimony regarding the impact of the appellant’s mental illness on the
misconduct and his more than 20 years of successful service).
ORDER
We ORDER the agency to cancel the removal action and retroactively
restore the appellant, effective October 28, 2020, to his GS-14 General Engineer
position and substitute in its place a 30-day suspension. 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. 13
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
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.14
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be paid, you must meet the requirements set out
at 42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201,
1201.202, and 1201.204. If you believe you meet these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
THE DATE OF THIS DECISION. You must file your motion with the office that
issued the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.15
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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: ______________________________
Jennifer Everling
Acting 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. | Ferry_David_DC-0752-21-0106-I-1__Final_Order.pdf | 2023-12-21 | DAVID FERRY v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DC-0752-21-0106-I-1, December 21, 2023 | DC-0752-21-0106-I-1 | NP |
2,593 | https://www.mspb.gov/decisions/nonprecedential/Alvarado_Rolando_SF-0432-19-0560-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROLANDO ALVARADO,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0432-19-0560-I-1
DATE: December 20, 2023
THIS ORDER IS NONPRECEDENTIAL*
R
onald P. Ackerman , Esquire, Los Angeles, California, for the appellant.
Paul McBride , Van Nuys, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his demotion based on his unacceptable contribution under one critical
factor of his position. For the reasons discussed below, we GRANT the petition
for review, VACATE the initial decision , and REMAND the case to the Western
Regional Office for further adjudication in accordance with this Remand Order
*A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
and Santos v. National Aeronautics and Space Administration , 990 F.3d 1355
(Fed. Cir. 2021).
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved the elements of its chapter 43 contribution-based action under
the law as it existed at the time of the appeal.
In demoting the appellant, the agency relied on the appellant’s alleged
failure to complete six tasks falling under all three critical factors of his position.
Initial Appeal File (IAF), Tab 15 at 12-17, 39-44. However, the administrative
judge found that the agency had accepted the appellant’s work under five of the
tasks. Thus, the administrative judge sustained the demotion action based solely
on the appellant’s inadequate work under task A, which fell under critical factor
two, Communications and/or Teamwork. IAF, Tab 19, Initial Decision (ID)
at 9-10, 12. On review, the appellant argues, among other things, that he was not
afforded a reasonable opportunity to demonstrate acceptable contribution, he was
not afforded the promised assistance, and his work was acceptable. Petition for
Review File, Tab 1 at 6-10.
To prevail in an appeal of a Contribution-based Compensation and
Appraisal System (CCAS) action, an agency must prove different elements than
those in a traditional performance -based action under 5 U.S.C. chapter 43, but
such actions are still appealable to the Board under 5 U.S.C. chapter 43.
Thompson v. Department of the Army , 122 M.S.P.R. 372, ¶ 7 (2015); see Civilian
Acquisition Workforce Personnel Demonstration Project; Department of Defense,
64 Fed. Reg. 1426-01, 1481 (Jan. 8, 1999). The administrative judge properly
found, under the law as it existed at the time, that to prevail in an appeal of a
CCAS contribution -based action, the agency must show by substantial evidence
that (1) it notified the appellant that he would be placed on a Contribution
Improvement Plan (CIP), (2) it informed him of what he must do during the CIP
to demonstrate acceptable contribution and warned him that failure to do so could
result in an employment action, (3) it gave him a reasonable opportunity to2
demonstrate acceptable contribution during the CIP, and (4) the appellant’s
contribution was unacceptable during the CIP. ID at 5 (citing Thompson,
122 M.S.P.R. 372, ¶ 7).
The appellant does not challenge the administrative judge’s finding that the
agency has proven elements 1 and 2 by substantial evidence. ID at 5-6. In this
case, the parties stipulated that the agency communicated to the appellant the
performance standards and critical elements of his position and that it warned him
of the inadequacies of his performance during the appraisal period. IAF, Tab 16
at 4. It was not inappropriate for the administrative judge to consider these
stipulations but, contrary to her conclusion, they fall short of fully satisfying the
agency’s burden on elements 1 and 2. ID at 5-6. The record shows, however,
that the agency notified the appellant that he would be placed on a CIP, informed
him of what he must do during the CIP to demonstrate acceptable contribution,
and warned him that failure to do so could result in an employment action. IAF,
Tab 8 at 12-15.
Regarding the reasonableness of the time period in which the appellant had
to demonstrate acceptable contribution, the record reflects that, while shorter time
frames may have initially been set, the appellant was ultimately afforded 60 days
to demonstrate acceptable contribution, and the administrative judge found the
time frame to be reasonable. ID at 6-7; IAF, Tab 5 at 37, Tab 8 at 14. The
administrative judge also found that the appellant’s supervisor provided him with
adequate assistance and that the agency established by substantial evidence that
the appellant’s contribution under critical factor two was inadequate. ID at 8-12.
In making her findings, the administrative judge relied on the hearing testimony
of the witnesses and the documentary evidence. We discern no reason to reweigh
the evidence or substitute our assessment of the evidence for that of the
administrative judge. 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 made3
reasoned conclusions); see Haebe v. Department of Justice , 288 F.3d 1288, 1301
(Fed. Cir. 2002) (stating that the Board must give deference to an administrative
judge’s credibility determinations when they are based, explicitly or implicitly,
on the observation of the demeanor of witnesses testifying at a hearing; the Board
may overturn such determinations only when it has “sufficiently sound” reasons
for doing so). We therefore find that the agency proved the elements of its
chapter 43 contribution -based action under the law as it existed at the time of the
appeal.
Remand is required under Santos .
Although the appellant has identified no basis for us to disturb the initial
decision, we nonetheless must remand this appeal for another reason. During the
pendency of the petition for review in this case, the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) held in Santos, 990 F.3d at 1360-61, that an
agency must also justify the institution of a performance improvement plan (PIP)
by proving that the employee’s performance was unacceptable prior to the PIP.
The Federal Circuit’s decision in Santos applies to all pending cases, including
this one, regardless of when the events took place. Lee v. Department of Veterans
Affairs, 2022 MSPB 11, ¶ 16. Although the appeal in Santos involved a
performance-based action under a traditional performance-based appraisal
system, we find that the Federal Circuit’s reasoning applies equally to the
contribution-based action taken under the CCAS at issue here. See Lin v.
Department of the Air Force , 2023 MSPB 2, ¶ 19 (applying Santos to a chapter 43
action arising out of a similar contribution -based system). The agency’s authority
to initiate a CIP under CCAS is predicated on “[i]nadequate contribution in any
one factor at any time during the appraisal period . . . . ” 64 Fed. Reg. at 1481.
Additionally, a CIP notice must explain how the employee’s contribution scores
are inadequate and what improvements are required and inform him that he may
face an employment action “unless the contribution increases to, and is sustained
at, a higher level . . . .” Id.; cf. Santos, 990 F.3d at 1360-61 (examining similar4
statutory language to conclude that that an agency must justify institution of a PIP
when an employee challenges a performance-based removal under chapter 43).
We therefore remand this case for further adjudication of the appellant’s
demotion under the standard set forth in Santos. See Lee, 2022 MSPB 11,
¶ 16 (remanding the appellant’s chapter 43 appeal because the parties did not
have an opportunity to address the modified standard set forth in Santos).
On remand, the administrative judge shall accept evidence and argument on
the requirement in Santos. The administrative judge shall hold a supplemental
hearing if appropriate. The administrative judge shall then issue a new initial
decision consistent with Santos. If the agency makes the additional showing
required under Santos on remand, the administrative judge may incorporate prior
findings on other elements of the agency’s case in the remand initial decision.
ORDER
For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.5 | Alvarado_Rolando_SF-0432-19-0560-I-1__Remand_Order.pdf | 2023-12-20 | ROLANDO ALVARADO v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0432-19-0560-I-1, December 20, 2023 | SF-0432-19-0560-I-1 | NP |
2,594 | https://www.mspb.gov/decisions/nonprecedential/Repetto_Robert_J_PH-0752-16-0358-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT J. REPETTO,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
PH-0752-16-0358-I-1
DATE: December 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert J. Repetto , Blackwood, New Jersey, pro se.
Joshua E. Jarrett , Esquire, Des Moines, Washington, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that 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 central issue in this appeal is whether the appellant, a former Air
Traffic Control Specialist (with responsibilities to insure the safe, orderly, and
expeditious movement of air traffic along air routes and at airports), is alcohol
dependent, and the dispute over that question is one of long standing. On
October 3, 2013, during an arbitration related to the appellant’s fitness for duty,
an arbitrator issued a Mediated Arbitration Award that required the appellant to
submit to an independent medical examination (IME) to determine whether he is
alcohol dependent. Initial Appeal File (IAF), Tab 10, Subtab 4I. Pursuant to that
award, if the appellant refused to submit to the IME, the agency would be
permitted to take whatever action it deemed appropriate. Id. at 67, ¶ 3.
The appellant had his IME with S.L., M.D., on June 19, 2014, and Dr. S.L.
issued his report on July 9, 2014. IAF, Tab 19 at 22-29. Dr. S.L. concluded that
the appellant met the diagnostic criteria for “Alcohol Use, Mild” contained in the
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, and for
“Alcohol Abuse” under the agency’s criteria.2 Id. at 27, 30. Dr. S.L. suspected
2 More specifically, the diagnosis was “Alcohol Use Disorder, Mild R/O Moderate, and
Alcohol Abuse R/O Alcohol Dependency.” IAF, Tab 19 at 27. The notation “R/O”
means “rule out.” In Dr. S.L.’s view, more information was needed before he could
rule out the appellant’s possible “Alcohol Use Disorder, Moderate, and Alcohol
Dependency.”
3
that the appellant met the criteria for “Alcohol Dependency,” but Dr. S.L. did not
have enough information to make that determination. Id. at 30. The reason he
lacked sufficient information is key to this case. Dr. S.L. reported that, during
the IME, the appellant was “very guarded and evasive, choosing his words very
carefully, disclosing very little information.” Id. at 26. He opined that the
appellant understated his alcohol consumption during a 2010 incident in which he
failed a field sobriety test and that the appellant would have had to consume
significantly more alcohol than he claimed for him to fail the test. Id. at 28.
Dr. S.L., in his report, stated that the appellant was “not forthcoming and was
reluctant to discuss his history of alcohol use, the amount he drank, the frequency
he drank or any of the details of his alcohol use or subsequent symptoms and
consequences.” Id. at 28. Dr. S.L. noted problems with the appellant’s responses
to the Michigan Alcohol Screen Test, a widely used questionnaire designed to
assess possible alcohol abuse. He found that the appellant was “[c]learly . . .
minimizing his responses” and remarked that minimization is one common
indication of an alcohol problem. Id. Dr. S.L. found that some of the appellant’s
answers were obviously false. Id. In a follow-up letter to the arbitrator, Dr. S.L.
stated, “I suspect that [the appellant] meets the criteria for Alcohol
Dependency . . . but as indicated in my evaluation, [the appellant] was not
forthcoming and I was unable to review his [medical records from a treatment
facility]. As a result, I am unable to state that he has a diagnosis of Alcohol
Dependency . . . .” Id. at 30. Based on Dr. S.L.’s report, the arbitrator found that
the appellant “failed fully to submit” to the IME. IAF, Tab 10, Subtab 4H at 5.
On May 28, 2015, Regional Flight Surgeon H.L., M.D., ruled the appellant
medically disqualified on the basis of an established medical history or clinical
diagnosis of substance dependence. Id., Subtab 4G at 5. Dr. H.L.’s
disqualification was upheld on appeal to the Federal Air Surgeon, J.F., M.D., on
September 22, 2015. Id., Subtab 4F at 2-3.
4
Thereafter, the agency removed the appellant from his position, effective
June 10, 2016, based on a charge of Failure to Maintain Medical Certification.
Id., Subtabs 4A, 4C, 4L. Following a hearing, the administrative judge issued an
initial decision that sustained the charge and found that the appellant failed to
prove his affirmative defenses of harmful error and reprisal for filing a prior
Board appeal. IAF, Tab 23, Initial Decision (ID).
The appellant petitions for review of the initial decision. Petition for
Review (PFR) File, Tab 1. The agency responds to the petition for review, and
the appellant replies to the agency’s response. PFR File, Tabs 3-4.
The agency has shown by preponderant evidence that the appellant failed to
maintain his medical certification.
The administrative judge correctly found that, to prove a charge of failure
to fulfill a condition of employment, the agency must prove: (1) the requirement
at issue is a condition of employment; and (2) the appellant failed to meet that
condition. Gallegos v. Department of the Air Force, 121 M.S.P.R. 349, ¶ 6
(2014). Failing to maintain a medical certification under circumstances like
these, wherein a position has established medical standards that employees must
meet, is directly parallel to failing to fulfill a condition of employment, and the
administrative judge correctly found that the same elements of proof apply. ID
at 6-7. Moreover, the administrative judge correctly stated that the Board’s
authority generally extends to reviewing the merits of losing or withdrawing a
condition of employment. ID at 7 (citing Adams v. Department of the Army ,
105 M.S.P.R. 50, ¶ 10 (2007), aff’d, 273 F. App’x. 947 (Fed. Cir. 2008) (Table) ).
There is no dispute that maintaining a medical certification was a condition of
employment for an Air Traffic Control Specialist and that the appellant failed to
maintain his certification. ID at 7. The question in this appeal is whether the
agency’s decision to medically disqualify the appellant was justified.
The medical standard at issue is contained in Federal Aviation
Administration (FAA) Order 3930.3B, Appendix A:
5
5.Mental. No established medical history or clinical diagnosis of
any of the following:
. . . .
d.Substance dependence.
(1)Except where there is established clinical evidence,
satisfactory, to the [Federal Air Surgeon], of recovery,
including sustained total abstinence from the substance(s) for
not less than the preceding 2 years.
(2)As used in this section “substance” includes: alcohol . . . ;
and, “substance dependence” means a condition in which a
person is dependent on a substance, [other than tobacco and
caffeine], as evidenced by
(a)increased tolerance;
(b)manifestation of withdrawal symptoms;
(c)impaired control of use; or,
(d)continued use despite damage to physical health or
impairment of social, personal, or occupational functioning.
IAF, Tab 10, Subtab 4J at 28-30. Neither Drs. H.L. nor J.F. provided any detailed
medical findings in their disqualification letters to the appellant. Id., Subtab 4F
at 2, 4G at 1. The administrative judge found, however, that these doctors based
their conclusions about an “established medical history” of alcohol dependence as
evidenced by the appellant’s two driving under the influence (DUI) arrests in
2004 and 2010, his continued use of alcohol after his first arrest, no demonstrable
attempt at rehabilitation, and his increased tolerance of alcohol based on blood
alcohol content readings of .306 and .21 taken after his arrests. ID at 8-10.
For his part, the appellant does not dispute any of the facts that the flight
surgeons relied on, but he disputes their conclusion that he is alcohol dependent.
He argues that the agency cannot prove that he is alcohol dependent because no
professional has clinically diagnosed his alcohol dependence after an actual
physical examination. IAF, Tab 1 at 6, Tab 18 at 4-8; PFR File, Tab 1 at 5-6, 8,
10-13. The appellant is correct to the extent that the agency’s doctors stated that
their determinations were based solely on reviewing available medical records.
6
IAF, Tab 10, Subtab 4G; Tab 19 at 22-29. Dr. S.L.’s findings were inconclusive,
and there are no other medical records available. IAF, Tab 19 at 22-29.
However, Dr. S.L.’s inability to make a definitive diagnosis and the absence of
medical records are the direct result of the appellant’s refusal to cooperate both
during and after the IME. Id. We agree with the flight surgeons that the
appellant’s 2004 and 2010 DUIs were, by themselves, sufficient to establish that
the appellant was substance dependent within the meaning of FAA
Order 3930.3B. IAF, Tab 10, Subtab 4G, Subtab J at 28-30; Tab 19 at 22-29.
Nevertheless, the arbitration award gave the appellant an opportunity, through an
IME, to avoid revocation of his medical certification by giving the agency
evidence of recovery. IAF, Tab 10, Subtab 4I at 2-3. The appellant’s failure to
avail himself of this opportunity does not detract from the agency’s otherwise
sufficient evidence of alcohol dependency. We therefore agree with the
administrative judge’s finding that the agency proved its charge that the appellant
failed to maintain his medical certification based on his alcohol dependency. ID
at 8-10.
The appellant failed to prove his affirmative defenses.
Below, the appellant identified numerous alleged violations of various
agency rules and policies. IAF, Tabs 1, 18. The appellant reiterates these claims
on review. PFR File, Tab 1. However, harmful error cannot be presumed; an
agency error is harmful only when the record shows that the procedural error was
likely to have caused the agency to reach a conclusion different from the one it
would have reached in the absence or cure of the error. Stephen v. Department of
the Air Force, 47 M.S.P.R. 672, 681, 685 (1991). The administrative judge
correctly found that the appellant made no showing that any of these alleged
errors likely caused the agency to reach a different outcome. ID at 10-11. The
appellant’s arguments on review provide no reason to disturb these findings.
The appellant also contended on appeal that the removal constituted
retaliation for his prior successful Board appeal of an enforced leave case. IAF,
7
Tab 1. The administrative judge found that the appellant failed to show that the
deciding official had any knowledge of the prior appeal or that any of the
principals in this case harbored a retaliatory motive. ID at 11-12. On review, the
appellant asserts that Dr. H.L. fabricated her diagnosis because the Board had
rejected her diagnosis that formed the basis for his earlier appeal concerning the
agency’s decision to place him on enforced leave. PFR File, Tab 1 at 6-7.
However, the appellant has identified no evidence of record showing that the
deciding official was aware of his Board appeal, and he has not pointed to any
evidence that would impute Dr. H.L.’s motive, if it existed, to the deciding
official. Therefore, we find that the administrative judge correctly found that the
appellant failed to prove his affirmative defense of retaliation for having filed a
prior Board appeal.3
The penalty of removal is reasonable.
The administrative judge found that the penalty of removal was within
tolerable limits of reasonableness. ID at 13. We agree. The Board has found that
removal is a reasonable penalty when, as here, the appellant has failed to maintain
a term or condition of employment. Penland v. Department of the Interior ,
115 M.S.P.R. 474, ¶ 11 (2010).
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).
3 The appellant did not argue that he was seeking corrective action under the
Whistleblower Protection Enhancement Act of 2012 for reprisal as a result of filing a
previous appeal with the Board. See 5 U.S.C. § 2302(b)(9)(A)(i) (prohibiting an agency
from retaliating against an employee for “the exercise of any appeal, complaint, or
grievance right” related to whistleblowing); Hicks v. Merit Systems Protection Board ,
819 F.3d 1318, 1320-21 (Fed. Cir. 2016).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
10
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
11
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Repetto_Robert_J_PH-0752-16-0358-I-1__Final_Order.pdf | 2023-12-20 | ROBERT J. REPETTO v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. PH-0752-16-0358-I-1, December 20, 2023 | PH-0752-16-0358-I-1 | NP |
2,595 | https://www.mspb.gov/decisions/nonprecedential/Moore_Cecil_D_DC-315I-18-0687-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CECIL DEWAYNE MOORE,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-315I-18-0687-I-1
DATE: December 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cecil Dewayne Moore , Stuttgart, AE, pro se.
Scott Stauffer , APO, AE, 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 and individual right of action (IRA) appeal for lack of
jurisdiction. On petition for review, the appellant argues that the agency’s action
was without merit, effected without proper notice and opportunity to respond,
done in reprisal for whistleblowing, and was discriminatory. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b). For the reasons discussed below, we FORWARD the appellant’s
IRA appeal for docketing as a separate appeal.
Under 5 U.S.C. § 1214(a)(3), an employee is required to exhaust his
administrative remedies with the Office of Special Counsel (OSC) before seeking
corrective action from the Board. Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 8 (2011). An appellant filing an IRA appeal has not satisfied
the exhaustion requirement unless he has filed a complaint with OSC and either
OSC has notified him that it was terminating its investigation of his allegations or
120 calendar days have passed since he first sought corrective action. Simnitt v.
Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 8 (2010).
We agree with the administrative judge that, at the time of the initial
decision’s issuance, the appellant had not shown that OSC had completed its
investigation of his complaint or 120 days had passed since he filed them;
therefore, the Board lacked jurisdiction over the appeal. Initial Appeal File
(IAF), Tab 1 at 4, Tab 8, Initial Decision at 1, 5; see 5 U.S.C. § 1214(a)(3).
However, now that 120 days have passed since the appellant filed his OSC
complaint, his IRA appeal is ripe for adjudication. IAF, Tab 1 at 4; see 5 U.S.C.2
§ 1214(a)(3)(B); Simnitt, 113 M.S.P.R. 313, ¶ 9 (explaining that the Board’s
practice is to adjudicate an appeal that was premature when it was filed but
becomes ripe while pending with the Board). Accordingly, we forward the
appellant’s whistleblower reprisal claims for docketing as an IRA appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Moore_Cecil_D_DC-315I-18-0687-I-1__Final_Order.pdf | 2023-12-20 | CECIL DEWAYNE MOORE v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-315I-18-0687-I-1, December 20, 2023 | DC-315I-18-0687-I-1 | NP |
2,596 | https://www.mspb.gov/decisions/nonprecedential/Coggins_Crystal_M_DC-844E-19-0411-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRYSTAL M. COGGINS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-844E-19-0411-I-1
DATE: December 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Crystal M. Coggins , Jonesville, North Carolina, pro se.
Linnette L. Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s decision denying her application
for disability retirement benefits. On petition for review, the appellant challenges
the administrative judge’s processing of the appeal. 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.
Please read 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 obtain
4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Coggins_Crystal_M_DC-844E-19-0411-I-1__Final_Order.pdf | 2023-12-19 | CRYSTAL M. COGGINS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-844E-19-0411-I-1, December 19, 2023 | DC-844E-19-0411-I-1 | NP |
2,597 | https://www.mspb.gov/decisions/nonprecedential/Coggins_Crystal_M_DC-844E-18-0734-I-1__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRYSTAL M. COGGINS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-844E-18-0734-I-1
DATE: December 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Crystal M. Coggins , Jonesville, North Carolina, pro se.
Moraima Alvarez , 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) rescinded its 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 final decision
disallowing her application for disability retirement under the Federal
Employees’ Retirement System. Initial Appeal File (IAF), Tabs 1-2, Tab 8
at 65-68. During the proceedings below, OPM notified the administrative judge
that it had rescinded its final decision and intended to issue a new decision in this
matter. IAF, Tab 11 at 4. The administrative judge dismissed the appeal for lack
of jurisdiction because OPM had rescinded its final decision in this matter. IAF,
Tab 12. On petition for review, the appellant argues that OPM did not fully
rescind its final decision. Petition for Review (PFR) File, Tab 1 at 1-2. She
asserts that, following OPM’s rescission of its final decision, OPM issued a new
initial decision that denied her application for disability retirement based on an
erroneous calculation and that OPM has prevented the Board from reviewing her
appeal.2 PFR File, Tab 1 at 1-2, Tab 6 at 2-3. The appellant’s arguments do not
2 The appellant filed a reply to OPM’s opposition in which she requested permission to
withdraw her petition. PFR File, Tab 4. The Office of the Clerk of the Board informed
the parties that, pursuant to a May 11, 2018 delegation of authority, the Office of the
Clerk of the Board had been “delegated authority to grant a petitioner’s request to
withdraw her petition for review.” PFR File, Tab 5 at 1. The order noted the
appellant’s November 2018 submission requesting to withdraw her petition for review
3
demonstrate that OPM has failed to fully rescind its final decision. The record
reflects that OPM fully rescinded its final decision and issued a new initial
decision, which afforded the appellant the right to request reconsideration of the
decision. IAF, Tab 11 at 4; PFR File, Tab 1 at 5. We take notice that the
appellant did, in fact, request reconsideration of that decision, whereupon OPM
issued a new final decision, which is the subject of a separate Board appeal.
Coggins v. Office of Personnel Management , MSPB Docket No. DC-844E-19-
0411-I-1. Accordingly, we affirm the administrative judge’s finding that the
Board lacks jurisdiction over this appeal, and thus, the appeal must be dismissed.
See Smith v. Office of Personnel Management , 113 M.S.P.R. 259, ¶ 6 (2010)
(providing that, if OPM completely rescinds a final decision its rescission divests
the Board of jurisdiction over the appeal in which that decision is at issue, and the
appeal must be dismissed).
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
and, consistent with the Office of the Clerk of the Board’s delegation of authority,
ordered the appellant to submit a confirmation of her request to withdraw her petition
for review. Id. at 1-2. The appellant’s response to the Office of the Clerk of the
Board’s order stated that she no longer wished to withdraw her petition because she did
not want to waive the opportunity to contest the dismissal of her appeal. PFR File,
Tab 6 at 2-3. A voluntary withdrawal must be clear, decisive, and unequivocal.
Lincoln v. U.S. Postal Service , 113 M.S.P.R. 486, ¶ 7 (2010). After reviewing the
appellant’s submissions, we cannot conclude that the appellant’s request to withdraw
her petition is voluntary, and we have addressed her petition on the merits.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Coggins_Crystal_M_DC-844E-18-0734-I-1__Final Order.pdf | 2023-12-19 | CRYSTAL M. COGGINS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-844E-18-0734-I-1, December 19, 2023 | DC-844E-18-0734-I-1 | NP |
2,598 | https://www.mspb.gov/decisions/nonprecedential/Herman_Ronald_J_DC-1221-10-0164-B-5_Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONALD J. HERMAN,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DC-1221-10-0164-B-5
DATE: December 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dennis L. Friedman , Philadelphia, Pennsylvania, for the appellant.
Joseph McCluskey , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
denied his request for corrective 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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. Except as MODIFIED by this Final Order to expressly find that the
appellant did not prove by preponderant evidence that he had a reasonable belief
that he made a protected disclosure, we AFFIRM the initial decision and DENY
the petition for review.
BACKGROUND
The Initial Appeal
¶2The appellant was a GS-13 Human Resource Management Examiner with
the agency’s Bureau of Prisons.2 In that position, he reviewed and evaluated
programs at each of the agency’s 116 correctional facilities and its central Human
Resources Department. Following a September 25, 2009 closure letter from the
Office of Special Counsel (OSC), the appellant filed an individual right of action
(IRA) appeal alleging that the agency retaliated against him for protected
whistleblowing. Herman v. Department of Justice , 115 M.S.P.R. 386 (2011);
Herman v. Department of Justice , MSPB Docket No. DC-1221-10-0164-W-1,
Initial Decision (Feb. 19, 2010) (W-1 ID). He alleged that he made the following
disclosures protected under the Whistleblower Protection Act (WPA): (1) a
manager violated the Privacy Act by telling the appellant’s second-level
supervisor that the appellant’s review of the agency’s Consolidated Employee
Services Center may have been unduly harsh because his daughter, who had
2 During the course of the proceedings before the Board, the appellant retired from the
Federal Government.2
worked there, had been disciplined; (2) his first-level supervisor abused her
authority and engaged in gross mismanagement by issuing and then retracting a
letter of counseling and threatening to detail the appellant to another position
while indicating that if the appellant applied for another position she would make
everything go away; and (3) both his first- and second-level supervisors abused
their authority during a number of facility reviews by arriving late, not interacting
with the review team, making sarcastic and inappropriate comments in front of
the team, and delegating to an inmate the handling of sensitive documents.3
Herman, 115 M.S.P.R. 386, ¶ 2. The appellant alleged that, in retaliation for his
disclosures, the agency took the following personnel actions: (1) issued him two
letters of counseling; (2) gave him an unfavorable performance review; and
(3) reassigned him to a different position. Id.
¶3On February 19, 2010, the administrative judge issued an initial decision
that dismissed the appeal for lack of jurisdiction, finding that the appellant failed
to make a nonfrivolous allegation that he had made a protected disclosure. W-1
ID. On January 7, 2011, the Board reversed the initial decision, found that the
appellant had made a nonfrivolous allegation that he made protected disclosures,
thus establishing Board jurisdiction, and remanded the appeal for a hearing.
Herman, 115 M.S.P.R. 386, ¶¶ 12-14; see Peterson v. Department of Veterans
Affairs, 116 M.S.P.R. 113, ¶ 8 (2011) (stating that once an appellant establishes
jurisdiction over his IRA appeal, he is entitled to a hearing on the merits of his
claim).
First Remand
¶4On remand, the administrative judge assumed that the appellant had made a
prima facie case of retaliation under the WPA and proceeded directly to whether
the agency proved by clear and convincing evidence that it would have taken the
3 The appellant also asserted that having an inmate copy the documents was a violation
of a law, rule, or regulation. Herman v. Department of Justice , MSPB Docket No. DC-
1221-10-0164-W-1, Initial Appeal File, Tab 4 at 12-13. 3
same actions absent the appellant’s whistleblowing, without first deciding
whether he had established by preponderant evidence that he made a protected
disclosure and whether that disclosure was a contributing factor to a personnel
action.4 Herman v. Department of Justice , 119 M.S.P.R. 642, ¶ 5 (2013). The
administrative judge allowed testimony only on the issue of whether the agency
established its affirmative defense by clear and convincing evidence, found that
the agency met its burden of proof, and denied the appellant’s request for
corrective action in a September 28, 2011 remand initial decision. Id., ¶ 6;
Herman v. Department of Justice , MSPB Docket No. DC-1221-10-0164-B-2,
Remand Initial Decision (Sept. 28, 2011). On January 19, 2012, the appellant
again petitioned for review, arguing that the administrative judge erred in his fact
findings and credibility determinations and prevented him from fully developing
his case. Herman v. Department of Justice , MSPB Docket No. DC-1221-10-
0164-B-2, Petition for Review File, Tab 5.
¶5On August 12, 2013, the Board issued an Opinion and Order finding that the
record was not sufficiently developed for it to determine whether the agency
carried its burden by clear and convincing evidence. Herman, 119 M.S.P.R. 642,
¶¶ 12-20. The Board remanded the appeal for “further adjudication of the
appellant’s prima facie case of whistleblower reprisal” and, if necessary, a new
analysis of whether the agency established by clear and convincing evidence that
it would have taken the personnel actions at issue absent the disclosures.
Id., ¶ 21.
4 This case arose under the Whistleblower Protection Act (WPA), and, under that
statute, administrative judges often assumed that an appellant had established his prima
facie case of retaliation by preponderant evidence and proceeded directly to the
agency’s affirmative defense, i.e., whether the agency proved by clear and convincing
evidence that it would have taken the same action absent the whistleblowing. See
Sutton v. Department of Justice , 94 M.S.P.R. 4, ¶ 17 (2003), aff’d, 97 F. App’x 322
(Fed. Cir. 2004). 4
Second Remand
¶6A different administrative judge was assigned to adjudicate the appeal on
the second remand. The new administrative judge allowed the parties to present
evidence, including hearing testimony, regarding whether the appellant had made
a protected disclosure and whether that disclosure was a contributing factor to the
personnel actions, i.e., an opportunity to make a prima facie case of reprisal for
whistleblowing. The new administrative judge, in a June 20, 2014 remand initial
decision, determined that the appellant had not met his burden to prove his prima
facie case of retaliation, finding that he had failed to prove by preponderant
evidence that he had made protected disclosures. Herman v. Department of
Justice, MSPB Docket No. DC-1221-10-0164-B-3, Remand Initial Decision
(June 20, 2014) (B-3 RID).
¶7In his petition for review, the appellant contended that the administrative
judge was precluded by the law of the case doctrine from finding that the
appellant had failed to make protected disclosures. Herman v. Department of
Justice, MSPB Docket No. DC-1221-10-0164-B-3, Remand Order, ¶ 6 (July 6,
2015) (B-3 Remand Order). He asserted that the Board found in Herman,
115 M.S.P.R. 386, that he had made protected disclosures. Id. He also asserted
that the administrative judge erred in denying his motion to compel discovery of
email exchanges between various agency officials, including the appellant’s first-
and second-level supervisors, to which the agency had access, as these emails
were relevant to his burden to prove his prima facie case. Id.
¶8The Board found, contrary to the appellant’s assertion, that it previously did
not decide that he had made protected disclosures in Herman, 115 M.S.P.R. 386.
Id., ¶ 7. Rather, the Board agreed with the administrative judge that the appellant
had exhausted his procedural remedies before OSC, and that, under the
“knowledge/timing” test, had made a nonfrivolous allegation that his disclosures
were a contributing factor to the alleged retaliatory personnel actions, thus5
establishing jurisdiction over his IRA appeal. Id.; Herman, 115 M.S.P.R. 386,
¶¶ 9-12; see Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed.
Cir. 2001) (stating that the Board has jurisdiction over an IRA appeal if the
appellant has exhausted his administrative remedies before OSC and makes
nonfrivolous allegations that: (1) he engaged in whistleblowing activity by
making a protected disclosure; and (2) the disclosure was a contributing factor in
the agency’s decision to take or fail to take a personnel action). Thus, the Board
found that its prior decision merely precluded the administrative judge from
dismissing the appellant’s IRA appeal for lack of jurisdiction. B-3 Remand
Order, ¶ 5.
¶9However, the Board found that the administrative judge abused her
discretion in denying the appellant’s motion to compel discovery. Id., ¶¶ 8-15.
The Board noted that the appellant had attempted to discover emails, notably
those initiated by the first- and second-level supervisors, to meet his burden of
establishing a prima facie case of reprisal for whistleblowing. Id., ¶ 9.
Specifically, according to the appellant, the emails would show, among other
things, that his second-level supervisor communicated with various agency
officials, including his first-level supervisor, in an effort to control and influence
agency actions involving the appellant. Id.
¶10The Board also found that the record showed that the agency had two email
systems, Netmail and GroupWise. Id., ¶ 14. The Board indicated that GroupWise
and Netmail are different email systems, that the content of the two systems,
while similar in some ways, is not identical, and that based on the testimony of an
agency information technology employee, the agency did not search GroupWise
pursuant to the appellant’s discovery request. Id. The Board found further that
the GroupWise email system may contain emails, notably those to or from the
first- and second-level supervisors, that may be relevant to the appellant’s prima
facie case, including the reasonableness of his belief that one of the matters he
disclosed is protected, the knowledge of his disclosures by agency officials, and6
the motivation of the first- and second-level supervisors, or other agency officials
to retaliate against him.5 Id. Even if the agency carried out its policy to delete
the first- and second-level supervisor’s email accounts after they left the agency,
other employees remained at the agency who may have been the recipients of
emails from the first- and second-level supervisors, emails that may remain in
their GroupWise personal archives because they would have predated the
agency’s efforts to pull GroupWise’s personal archived emails into Netmail. Id.
¶11Because the appellant bears the burden of establishing his prima facie case,
and the emails in the GroupWise system appeared to be relevant or possibly lead
to the discovery of relevant evidence, the Board vacated the initial decision and
remanded this appeal for the administrative judge to reopen discovery, allow the
appellant to request a supplemental hearing to address issues arising as a result of
the agency’s responses to his discovery requests, and issue a new initial decision.
Id., ¶ 15.
Third Remand
¶12On remand, the appellant initiated discovery and was dissatisfied with the
search results provided by the agency in response to his discovery requests. The
agency then agreed to conduct a search of the email system using search terms
provided by the appellant. Herman v. Department of Justice , MSPB Docket
No. DC-1221-10-0164-B-5, Appeal File (B-5 AF), Tab 5 at 1. Prior to
conducting the search, however, the agency had a “disruption of service” on the
relevant email systems, did not resolve the problem, and thus did not run the
search using the terms that the appellant provided. Id. at 2. The administrative
judge ordered the agency to submit the specific discovery requests to which it
provided responses to the appellant and to explain why it believed it had
complied with the Board’s previous order. Id. at 3. The administrative judge also
5 The Board, in its second remand order, specifically determined that the appellant must
be permitted to develop the record on the substance of his allegedly protected
disclosures as well as the extent to which his second-level supervisor was aware of it.
Herman, 119 M.S.P.R. 642, ¶¶ 12-20.7
ordered the appellant to respond to the agency’s submission, and to explain how
the agency’s response was deficient and why additional searches were necessary.
Id. Further, the administrative judge ordered both parties to address what, if any,
adverse inference would be appropriate if the agency was unable to recover
access to its email records. Id.
¶13In response, the agency argued that it had satisfied its discovery obligation
in compliance with the Board’s remand order. B-5 AF, Tab 9 at 5-6. The
appellant argued for adverse inferences related exclusively to the contributing
factor and clear and convincing evidence aspects of the case. Id., Tab 10 at 4-9.
The appellant did not provide any new evidence that supported his assertion that
he made a protected disclosure and did not claim that any discovery that he
requested that was not provided would assist him in establishing that he made a
protected disclosure. Id. at 7-9.
¶14In an August 12, 2016 remand initial decision, the administrative judge
found that the Board did not reverse her finding that the appellant failed to prove
by preponderant evidence that he made a protected disclosure, and that all of the
adverse inferences for the agency’s inability to complete discovery that the
appellant requested related to the appellant’s burden of establishing contributing
factor and/or his ability to rebut the agency’s claim that it would have taken the
same action absent his disclosure; therefore, she reaffirmed her finding that the
appellant failed to prove by preponderant evidence that he made a protected
disclosure. Herman v. Department of Justice , MSPB Docket No. DC-1221-10-
0164-B-5, Remand Initial Decision at 7-9 (Aug. 12, 2016) (B-5 RID). She also
found that, because the appellant failed to prove by preponderant evidence that he
made a protected disclosure, she need not proceed to the issues of whether the
appellant established by preponderant evidence that his alleged protected
disclosures were a contributing factor to the adverse personnel actions and
whether the agency proved by clear and convincing evidence that it would have
taken the same actions in the absence of his whistleblowing. B-5 RID at 9-10. 8
¶15On October 4, 2016, the appellant petitioned for review of the third remand
initial decision and that matter is now before us. In his petition for review, the
appellant asserts that the administrative judge erred by failing to allow him a
supplemental hearing based on the agency’s responses to his discovery requests.
Herman v. Department of Justice , MSPB Docket No. DC-1221-10-0164-B-5,
Petition for Review (PFR) File, Tab 3. The agency responded to the petition,
PFR File, Tab 6, and the appellant replied to the response, PFR File, Tab 9.
DISCUSSION OF ARGUMENTS ON REVIEW6
¶16As noted, the Board has jurisdiction over the appellant’s IRA appeal. In
contrast to the nonfrivolous allegations necessary to establish Board jurisdiction,
to establish a prima facie case of reprisal for whistleblowing under the WPA, the
appellant must prove, by preponderant evidence, that he made a disclosure
described under 5 U.S.C. § 2302(b)(8) and 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). Jenkins v. Environmental Protection Agency ,
118 M.S.P.R. 161, ¶ 16 (2012). To establish that an appellant made a protected
disclosure under 5 U.S.C. § 2302(b)(8), he need not prove that the matter
disclosed actually established one of the categories of wrongdoing listed under
section 2302(b)(8); rather, he must show that the matter disclosed was one which
a reasonable person in his position would believe evidenced any of the situations
specified in 5 U.S.C. § 2302(b)(8). Schnell v. Department of the Army ,
114 M.S.P.R. 83, ¶ 19 (2010); see Scoggins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 11 (2016) (applying the same principle after enactment of
the Whistleblower Protection Enhancement Act). Only if the appellant makes a
prima facie case does the agency have the burden to prove by clear and
6 The events at issue in this appeal all occurred prior to the 2012 enactment of the
Whistleblower Protection Enhancement Act. See Pub. L. No. 112-199, 126 Stat. 1465.
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.9
convincing evidence that it would have taken the same action in the absence of
the appellant’s whistleblowing. Jenkins, 118 M.S.P.R. 161, ¶ 16.
¶17As noted, in the Board’s decision on the petition for review of the second
remand initial decision, after affording the appellant a hearing, the administrative
judge found that the appellant failed to establish that he made a protected
disclosure. B-3 Remand Order, ¶ 5. Thus, she did not reach the issue of whether
the appellant proved contributing factor by preponderant evidence, and did not
shift the burden to the agency to prove by clear and convincing evidence that it
would have taken the same action in the absence of the protected disclosure.
¶18When the Board remanded the appeal for the third time, it did so to assure
that the appellant would have the opportunity to discover evidence that might
allow him to prove by preponderant evidence that the matters he disclosed were
ones which a reasonable person in his position would believe evidenced any of
the situations specified in 5 U.S.C. § 2302(b)(8). B-3 Remand Order, ¶¶ 8-15.
Here, we agree with the administrative judge that the additional evidence that the
appellant discovered and that he sought in discovery was not relevant to that
issue. B-5 RID. Indeed, in his petition for review, the appellant admits that the
evidence that he sought related to whether he established that his protected
disclosures were a contributing factor to the personnel actions and to his rebuttal
of the evidence that the agency would have taken the same action absent his
whistleblowing. PFR File, Tab 3 at 5-7. Because the appellant failed to show
that issues regarding whether he established that he made protected disclosures
arose as a result of the agency’s responses to his discovery request or as a result
of the agency’s inability to respond to his discovery requests, he was not entitled
to a supplemental hearing, and the administrative judge did not err in failing to
afford him such a hearing. 10
The appellant did not show by preponderant evidence that he had a reasonable
belief that his disclosures evidenced any of the situations specified in 5 U.S.C.
§ 2302(b)(8).
¶19We agree with the administrative judge that the Board did not reverse her
earlier finding that the appellant failed to prove by preponderant evidence that his
disclosures were ones that a reasonable person in his position would believe
evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8). B-5 RID at 7.
However, because the Board vacated the remand initial decision, we now address
whether the appellant met his burden. The test in assessing whether the appellant
had a reasonable belief is whether a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by the appellant could
reasonably conclude that the actions disclosed could be a violation of law, rule, or
regulation, gross mismanagement, a gross waste of funds, abuse of authority or a
substantial and specific danger to public health and safety. Lachance v. White ,
174 F.3d 1378, 1381 (Fed. Cir. 1999).
The appellant failed to show that he reasonably believed that an agency manager
violated a law, rule, or regulation by revealing information about his daughter’s
disciplinary history.
¶20The appellant stated he made his first disclosure to his fourth-level
supervisor when he told her that the Deputy Assistant Director, Human Resources
Management Division at the Consolidated Employee Services Center, violated the
Privacy Act by informing the appellant and the appellant’s second-level
supervisor that the appellant’s daughter, who previously worked at the facility,
had been suspended for misconduct. Herman, 115 M.S.P.R. 386, ¶ 2. The stated
reason for providing this information was a concern about the appellant’s
objectivity, but the appellant asserted that questions about his daughter’s
suspension were unrelated to the Consolidated Employees Services Center review
and that there was “no supportable evidence of [his] alleged bias or retaliation or
any finding of bias or retaliation.” Herman v. Department of Justice , MSPB
Docket No. DC-1221-10-0164-W-1, Petition for Review File, Tab 3 at 2. The11
Board previously found that, because there was no record evidence that the
appellant’s duties required him to be familiar with the intricacies of the Privacy
Act, he made a nonfrivolous allegation that, if proven, could establish a protected
disclosure. Herman, 115 M.S.P.R. 386, ¶ 10. As discussed below, however, the
appellant has failed to establish by preponderant evidence that this disclosure was
protected.
¶21In his hearing testimony, the appellant stated that reviews are a “big deal”
and affect an institution’s accreditation. Herman v. Department of Justice , MSPB
Docket No. DC-1221-10-0164-B-3, Appeal File (B-3 AF), Hearing Transcript
(B-3 HT) at 197 (testimony of the appellant). Because of the consequences of the
reviews, it is critical that they be performed in an objective and unbiased manner.
The appellant acknowledged that it would be proper to notify a manager if there
was concern about an employee’s neutrality or if there was reason to believe that
an employee was unprofessional. Id. at 203 (testimony of the appellant).
¶22If, as here, the family member of a Human Resource Management Examiner
was disciplined by management in the reviewed office, it is reasonable to
consider whether the Examiner could be biased in his review. As noted above,
the appellant acknowledged in his testimony that it would be proper to notify
management if there was a concern about an employee’s neutrality and he has not
identified any other potential basis for the Consolidated Employee Services
Center manager to provide information about the appellant’s daughter. Thus, we
conclude that, while he was not an expert in the Privacy Act, the appellant
understood the importance of impartial reviews and the agency’s interests in
ensuring that reviewers had no potential bias. Thus, we conclude that he failed to
prove by preponderant evidence that he reasonably believed that he disclosed a
violation of law, rule, or regulation.12
The appellant failed to show that he reasonably believed that agency managers
abused their authority and engaged in gross mismanagement by issuing him a
letter of counseling and discussing a reassignment with him.
¶23The appellant stated he also disclosed that his supervisor issued him and
then retracted a letter of counseling, made derogatory log entries about him, and
detailed him to another position while indicating that, if he applied for a position
elsewhere, she would make this all go away. Herman, 115 M.S.P.R. 386, ¶ 11.
The appellant stated that he made the disclosure to his third-level supervisor and
that the agency’s action constituted gross mismanagement and an abuse of
authority. Herman v. Department of Justice , MSPB Docket No. DC-1221-10-
0164-W-1, Initial Appeal File (IAF), Tab 4 at 12.
Gross Mismanagement
¶24Gross mismanagement means an action or inaction that creates a substantial
risk of a significant adverse impact on the agency’s ability to accomplish its
mission; it is more than de minimis wrongdoing or negligence. Jensen v.
Department of Agriculture , 104 M.S.P.R. 379, ¶ 9 (2007). The appellant has not
provided any evidence or argument regarding how the agency’s action or inaction
in this instance created a substantial risk of a significant adverse impact on the
agency’s ability to accomplish its mission. Therefore, we find that he has not
shown that he had a reasonable belief that his disclosure evidenced gross
mismanagement.
Abuse of Authority
¶25Abuse of authority occurs when there is an arbitrary or capricious exercise
of power by a Federal official or employee that adversely affects the rights of any
person or results in personal gain or advantage to himself or preferred other
persons. Herman, 115 M.S.P.R. 386, ¶ 11. There is no de minimis standard for
abuse of authority as a basis of a protected disclosure under the WPA. Id.
Harassment or intimidation of other employees may constitute an abuse of13
authority. A supervisor’s use of her influence to denigrate staff members in an
abusive manner and to threaten the careers of staff members with whom she
disagrees constitutes abuse of authority.7 Id.
The appellant has failed to prove that he reasonably believed that the
issuance of the letter of counseling was an abuse of authority.
¶26The appellant asserts that he disclosed to his third-level supervisor that his
first-level supervisor improperly gave him a letter of counseling and threatened to
reassign him. B-3 HT at 163-65 (testimony of the appellant). The appellant’s
first-level supervisor testified that she issued the appellant a letter of counseling
because she observed, and was made aware of, communication and interpersonal
skills issues that were unprofessional and not productive. B-3 AF, Tab 52 at 320
(testimony of the appellant’s first-level supervisor).8 The letter specifically
addressed the appellant’s communication with management and stated that the
appellant was defensive and argumentative when questioned about work
assignments or review schedules. Herman v. Department of Justice , MSPB
Docket No. DC-1221-10-0164-B-2, Appeal File (B -2 AF), Tab 3, Subtab 7C.
Further, the appellant’s first-level supervisor stated that the appellant needed to
focus on the mission of the division, rather than on his personal preferences. Id.
7 In her initial decision, the administrative judge adopted her previous findings that,
among other things, the letter of counseling and the suggested reassignment of the
appellant were not arbitrary and capricious and thus not an abuse of authority. B-5 RID
at 9; B-3 RID at 10-13. To establish that the appellant had a reasonable belief that a
disclosure met the criteria of 5 U.S.C. § 2302(b)(8), he need not prove that the matter
he disclosed actually constituted an abuse of authority; rather, the appellant must show
that the matter disclosed was one which a reasonable person in his position would
believe evidenced an abuse of authority. Schnell, 114 M.S.P.R. 83, ¶ 19. Any error in
this regard by the administrative judge did not prejudice the appellant’s substantive
rights because, as discussed below, the appellant failed to show that he disclosed a
matter that a reasonable person in his position would believe evidenced an abuse of
authority.
8 This citation is to the transcript of the August 17, 2011 hearing in the appellant’s case.
Portions of the transcript of that hearing were submitted into the record by the agency
as exhibits to its closing argument. The appellant has not alleged any errors in the
transcript provided by the agency. 14
She testified that the appellant acknowledged issues with his communications,
B-3 AF, Tab 52 at 321 (testimony of the appellant’s first-level supervisor), and
stated in his performance appraisal, prepared in April 2008, that the appellant
recognized the need to improve his communications and that he had, in fact,
improved, B-2 AF, Tab 3, Subtab 5. She explained that she withdrew the letter of
counseling after the appellant acknowledged that he “needed to tone it down a
little bit” and demonstrated a willingness to “change his tone.” B-3 AF, Tab 52
at 321 (testimony of the appellant’s first-level supervisor).
¶27The appellant acknowledged receiving the letter of counseling. B-3 HT
at 162-63 (testimony of the appellant). He testified that he thought that his
communication skills were “pretty good.” Id. at 165 (testimony of the appellant).
He stated that he spoke to his third-level supervisor on March 5, 2008, about the
letter of counseling, id. at 165-66 (testimony of the appellant), but the appellant’s
third-level supervisor did not testify about a meeting with the appellant in
March 2008, but rather stated that she met with him regarding his complaints
about his supervisors in July 2008, B-3 AF, Tab 52 at 264 (testimony of the
appellant’s third -level supervisor). The appellant’s third-level supervisor did not
testify regarding speaking to the appellant’s first-level supervisor about the
communication letter of counseling,9 and the first-level supervisor stated she did
not recall speaking to the third-level supervisor about it. Id. at 345-46 (testimony
of the appellant’s first-level supervisor).
¶28The agency has presented testimony and documentary evidence from the
appellant’s first-level supervisor that the appellant acknowledged his
communications issues. This acknowledgement is consistent with the agency’s
withdrawal of the letters of counseling based on the appellant’s recognition of his
9 The appellant’s third-level supervisor stated she spoke to the appellant about letters of
counseling in July 2008, and not the March 3, 2008 letter. B-3 AF, Tab 52 at 269
(testimony of the appellant’s third-level supervisor). According to the appellant’s
third-level supervisor, the letters of counseling she discussed with the appellant were
not in the record because “they were pulled.” Id. at 270 (testimony of the appellant’s
third-level supervisor).15
problem and need for improvement. Furthermore, while he asserts that he spoke
to his third-level supervisor about the letter of counseling, which could suggest
that he disagreed with the letter, the agency witnesses do not support his version
of events.
¶29Based on our review of the record evidence, the appellant acknowledged
that he had some communications issues. A reasonable person would not find the
issuance of a letter of counseling regarding an acknowledged weakness to
constitute an abuse of authority. Thus, we find that the appellant has not
demonstrated by a preponderance of the evidence that he reasonably believed that
the agency engaged in an abuse of authority.
¶30Furthermore, even if the appellant did not agree with his first-level
supervisor’s assessment that he had communication issues, that disagreement
does not mean that the appellant reasonably believed that his supervisor’s actions
constituted an abuse of authority. It is not reasonable for an employee to believe
that a letter of counseling about an assessment of his performance, with which he
disagrees, without more, such as a threatened disciplinary action or a significant
change in duties, constitutes an abuse of authority by his supervisor. The
whistleblower protection statutes were never intended to cover individual
complaints and grievances about how an employee was treated. Rzucidlo v.
Department of the Army , 101 M.S.P.R. 616, ¶ 18 (2006) (finding that the
appellant’s disclosures, which were “ fundamentally his own complaints and
grievances about how he was treated by the agency,” were not protected
disclosures); Mc Corcle v. Department of Agriculture , 98 M.S.P.R. 363, ¶ 24
(2005) (finding that the appellant’s “ personal complaints and grievances about
how he was treated by the agency or mere debatable disagreements with the
agency’s policy decisions” did not constitute protected disclosures); see Willis v.
Department of Agriculture , 141 F.3d 1139, 1144 (Fed. Cir. 1998) (explaining that
the WPA “is intended to protect government employees who risk their own
personal job security for the advancement of the public good by disclosing abuses16
by government personnel”), superseded by statute on other grounds as stated in
Salazar v. Department of Veterans Affairs , 2022 MSPB 42; Frederick v.
Department of Justice , 73 F.3d 349, 353 (Fed. Cir. 1996) (recognizing that the
purpose of the WPA is to “root out real wrongdoing”). Thus, we conclude that
the appellant did not make a protected disclosure of an abuse of authority.
The appellant has failed to prove that he reasonably believed that
discussing, but not directing, a reassignment was an abuse
of authority.
¶31The appellant testified that his first-level supervisor told him that he would
be reassigned to another section at the time he received the letter of counseling in
March 2008, that she explained it was to get him off his second-level supervisor’s
“radar,” and that if he applied for another job “everything would go away.” B-3
AF, Tab 52 at 79-82 (testimony of the appellant). The appellant’s first-level
supervisor acknowledged that she discussed a possible reassignment with the
appellant in March 2008, but that when he objected to the reassignment, another
employee who volunteered for the assignment was reassigned instead.10 Id.
at 346-50 (testimony of the appellant’s first-level supervisor).
¶32As discussed above, an abuse of authority occurs when there is an arbitrary
or capricious exercise of power by a Federal official or employee that adversely
affects the rights of any person or results in personal gain or advantage to himself
or preferred other persons. Herman, 115 M.S.P.R. 386, ¶ 11. Here, the record
shows that the appellant’s first-level supervisor discussed with the appellant a
possible reassignment to a similar position with the appellant’s organization, but
when he objected to the proposed reassignment, no action was taken. Thus, there
was never an exercise of power or authority taken by any agency official that
adversely affected the rights of anyone, including the appellant, or resulted in
personal gain or advantage.
10 The fact that another employee volunteered for the reassignment and was in fact
reassigned shows that the possible reassignment discussed with the appellant was
legitimate. 17
¶33Likewise, the appellant’s complaint about the reassignment was, at most, his
mere disagreement with a possible agency action that might have affected a single
individual—himself—which does not otherwise constitute a protected disclosure
under the WPA. On the record before us, we find that the appellant alleged facts
that showed the agency’s course of action of talking to him about a possible
reassignment was simply a reasonable exercise of management discretion in
handling a potential personnel matter. Accordingly, applying the disinterested
observer standard to these facts, we find that the appellant did not have a
reasonable belief that his disclosure regarding a possible reassignment was
protected because he did not sufficiently allege an abuse of authority. See
generally White v. Department of the Air Force , 391 F.3d 1377, 1382 (Fed. Cir.
2004) (holding that a policy disagreement cannot serve as the basis for a
protected disclosure unless the legitimacy of a particular policy choice is not
debatable among reasonable people).
The appellant failed to show that he reasonably believed that agency managers
abused their authority through their conduct during program reviews.
¶34According to his OSC complaint, on July 23, 2008, the appellant disclosed
to his third-level supervisor that, during program reviews, the appellant’s first-
and second-level supervisors arrived late, were not interacting with the team,
made sarcastic and inappropriate comments in front of the team, and delegated to
an inmate orderly the handling of sensitive documents. Herman, 115 M.S.P.R.
389, ¶ 12; IAF, Tab 4 at 12. The appellant stated that he met with his
second-level supervisor after speaking with his third-level supervisor and
discussed these issues with his second-level supervisor. IAF, Tab 4 at 13. The
Board found in a previous decision that the appellant made a nonfrivolous
allegation of abuse of authority based on his disclosure that his supervisors
harassed or intimidated the review team by making sarcastic remarks in front of
them. Herman, 115 M.S.P.R. 389, ¶ 12.18
¶35The appellant acknowledged that he did not know what his supervisors were
doing before they arrived at the program reviews, that they could have been doing
other work, and that it was not his place to question what his supervisors were
doing. B-3 HT at 218-19 (testimony of the appellant). Beyond his supervisor’s
tardiness, in his OSC complaint the appellant made general statements about his
supervisor’s unprofessional interaction with the institution staffs and the members
of the facility review team, including the purported making of sarcastic and
inappropriate comments in front of the team. IAF, Tab 4 at 12-13, 20-21. He did
not provide any specific information regarding these actions.
¶36As noted above, an abuse of authority involves the arbitrary and capricious
exercise of power by a Federal official or employee that adversely affects the
rights of any person or results in personal gain or advantage to himself or
preferred other persons. Herman, 115 M.S.P.R. 386, ¶ 11. The appellant has not
shown how the general allegations of purported wrongdoing set forth above
establish that a reasonable person with the knowledge of someone in his position
would have a reasonable belief that his supervisors engaged in an abuse of
authority.11
11 The appellant also alleged that his second-level supervisor directed an inmate orderly
to make copies of time and attendance documents. IAF, Tab 4 at 13, 21. He appears to
allege that this was a violation of a law, rule, or regulation. Ordinarily, to make a
protected disclosure of a violation of a law, rule, or regulation, an employee must
identify the specific law, rule, or regulation that was violated. Langer v. Department of
the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001). However, the employee need not
identify a statutory or regulatory provision by title or number when the employee’s
statements and the circumstances of those statements clearly implicate an identifiable
law, rule, or regulation. Id.; Mogyorossy v. Department of the Air Force , 96 M.S.P.R.
652, 660 (2004). Here, the appellant has failed to identify any specific law, rule, or
regulation that prohibits requesting an inmate orderly to copy time and attendance
documents, nor is there one that is readily identifiable by surrounding circumstances.
Indeed, the appellant provided no evidence regarding the role of inmate orderlies, and
provided no basis to conclude they would be precluded from making copies of office
records. The fact that the records at issue contained allegedly “sensitive” information
does not in itself provide a basis for finding it prohibited absent some evidence to
support such a conclusion. Accordingly, we find the appellant has provided insufficient
evidence to satisfy his burden of proof that a disinterested observer with knowledge of
the essential facts known to and readily ascertainable by him could reasonably conclude19
Conclusion
¶37Based on the foregoing, we find the appellant has failed to establish that he
made a protected disclosure. For that reason, we affirm the initial decision as
modified and deny the appellant’s request for corrective action. Except as
modified by this Final Order, the initial decision of the administrative judge is the
Board’s final decision.
NOTICE OF APPEAL RIGHTS12
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.
that the actions disclosed were a violation of law, rule, or regulation. Lachance,
174 F.3d at 1381.
12 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.20
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you21
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S.420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 22
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.13 The court of appeals must 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
13 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 23
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 24
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.25 | Herman_Ronald_J_DC-1221-10-0164-B-5_Final Order.pdf | 1221-10-01 | RONALD J. HERMAN v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-1221-10-0164-B-5, December 18, 2023 | DC-1221-10-0164-B-5 | NP |
2,599 | https://www.mspb.gov/decisions/nonprecedential/Francis_Kaytrena_J_SF-3330-18-0512-I-1_Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAYTRENA J. FRANCIS,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-3330-18-0512-I-1
DATE: December 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kaytrena J. Francis , APO, Armed Forces Pacific, pro se.
Andrea Campanile , Esquire, APO, Armed Forces Pacific, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her appeal under the Veterans Employment Opportunities Act of 1998
(VEOA) as untimely filed. On petition for review, the appellant argues that the
administrative judge erred in using the date that the Department of Labor (DOL)
first notified her that it was closing her claims to determine the timeliness of her
appeal. Rather, she claims that the administrative judge should have calculated
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
her deadline using dates associated with her resubmitted claims, which DOL
determined were duplicative. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Because we find that the administrative judge properly dismissed the appeal as
untimely filed, we do not address the appellant’s arguments concerning the merits of
her VEOA claims. See Chavez v. Office of Personnel Management , 46 M.S.P.R. 390,
392 n.2 (1990).
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Francis_Kaytrena_J_SF-3330-18-0512-I-1_Final Order.pdf | 2023-12-18 | KAYTRENA J. FRANCIS v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-3330-18-0512-I-1, December 18, 2023 | SF-3330-18-0512-I-1 | NP |
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