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2,600	https://www.mspb.gov/decisions/nonprecedential/Emmenegger_Eveline__J_SF-0432-21-0258-I-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD EVELINE J. EMMENEGGER, Appellant, v. DEPARTMENT OF THE INTERIOR, Agency.DOCKET NUMBER SF-0432-21-0258-I-1 DATE: December 18, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Peter T. Jenkins and Kevin Bell , Silver Spring, Maryland, for the appellant. Jeff Ruch and Paula Dinerstein, Washington, D.C., for the appellant. Emily Bright Hays , Washington, D.C., for the agency. Kevin Mack , Sacramento, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The agency has filed a petition for review and the appellant has filed a cross petition for review of the initial decision, which found that the appellant proved her affirmative defense of whistleblower retaliation, that the agency failed to prove by clear and convincing evidence that it would have taken the personnel 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). actions even in the absence of the appellant’s protected disclosures, and that it effectively restored her to status quo ante. Generally, we grant petitions such as these only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that neither party has established any basis under section 1201.115 for granting the petition or cross petition for review. Therefore, we DENY the petition for review and the cross petition for review. Except as expressly MODIFIED to address the alternative to the knowledge/timing test set forth in Dorney and to address the analysis of the Carr factors, we AFFIRM the initial decision. BACKGROUND ¶2The appellant is a GS-12 Research Microbiologist in the Western Fisheries Research Center of the agency’s U.S. Geological Survey in Seattle, Washington. Initial Appeal File (IAF), Tab 6 at 7, 10. As a Research Microbiologist, the appellant was responsible for developing research projects to improve the detection and diagnosis of fish pathogens, understand the biology of fish pathogens; develop concepts and methodologies that control pathogens to reduce losses in fish populations due to disease, and determining the critical factors involved with fish immune system as it relates to host-pathogen interactions. IAF, Tab 35 at 5. According to the agency, the appellant’s position is considered a Research Grade Evaluation (RGE) Scientist position. Id. at 103, 123.2 On October 16, 2019, the agency placed the appellant on a Notice of Unacceptable Performance and Opportunity to Demonstrate Acceptable Performance (NODAP), which served as a performance improvement plan (PIP), based on unsatisfactory performance in critical element (4) Science Communicated. Id. at 147, 178-82. The NODAP was in place from October 16 until November 20, 2019. Id. On January 29, 2020, her first-level supervisor notified the appellant that she had failed to demonstrate acceptable performance during the NODAP period and proposed her removal. IAF, Tab 36 at 350-56. After the appellant responded, id. at 363-91, 394-402, the deciding official removed the appellant from her position effective March 5, 2021, IAF, Tab 41 at 92-104. ¶3On March 22, 2021, the appellant filed the instant Board appeal challenging her removal and requesting a hearing. IAF, Tab 1. The appellant alleged that her removal was the result of whistleblower retaliation. Id. at 7, 15. Subsequently, by letter dated April 9, 2021, the agency rescinded her removal and reinstated her to the Research Microbiologist or RGE Scientist position effective May 9, 2021.2 IAF, Tab 6 at 10. Thereafter, the administrative judge determined that a hearing was necessary to address whether the agency returned the appellant to status quo ante and her whistleblower retaliation affirmative defense.3 IAF, Tab 22 at 1. Following a hearing, the administrative judge issued an initial decision finding that the appellant proved her affirmative defense. IAF, Tab 112, Initial Decision (ID) at 2, 68, 72. He found that she proved disclosures (3), (10), (12), and (15) were protected disclosures under 5 U.S.C. § 2302(b)(8) and disclosure (9) was protected activity under 5 U.S.C. § 2302(b)(9). ID at 17, 29, 38, 42, 50. He also 2 The agency rescinded the appellant’s removal after receiving an initial decision that found the Office of Personnel Management had not approved its performance appraisal system. IAF, Tab 112, Initial Decision (ID) at 58-59; See Laminack v. Department of the Interior, MSPB Docket No. DA-0432-20-0177-I-1, Initial Decision at 1, 12-15 (Mar. 10, 2021). 3 The administrative judge identified, and the parties did not dispute, that the appellant asserted that she made 17 disclosures. ID at 9 n.5; IAF, Tab 73.3 found that she proved contributing factor and the agency failed to prove by clear and convincing evidence that it would have taken the same action absent the protected disclosure or activity. ID at 61-68. However, the administrative judge concluded that the agency provided her with status quo ante relief. ID at 69-72. Therefore, he did not award the appellant interim relief or back pay. ID at 72. ¶4The agency has filed a petition for review, largely arguing that the administrative judge erred in finding that it failed to prove by clear and convincing evidence that it would have taken the personnel action absent the protected disclosure or activity. Petition for Review (PFR) File, Tab 1 at 11-23. The appellant has filed a cross petition for review, arguing in part that the administrative judge erred in finding that some of her disclosures were not protected. PFR File, Tab 3 at 20-28. The appellant has also responded to the agency’s petition for review. Id. at 7-20. The agency has filed a response to the appellant’s cross petition for review and a reply to the appellant’s response to its petition for review. PFR File, Tabs 5-6.4 DISCUSSION OF ARGUMENTS ON REVIEW The agency’s petition for review presents no basis for disturbing the administrative judge’s finding of reprisal for whistleblowing. ¶5The agency has shown no error in the initial decision. PFR File, Tab 1. When whistleblower retaliation claims are made in the context of an otherwise appealable action, as here, the appellant must prove by preponderant evidence that she made a protected disclosure or engaged in protected activity and that the 4 The appellant has also filed a motion for leave to file a reply to the agency’s response to her cross petition for review. PFR File, Tab 8. The Office of the Clerk of the Board acknowledged the appellant’s motion but explained 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. PFR File, Tab 9 (citing 5 C.F.R. § 1201.114(a)(5)). It informed the appellant that the Board would decide to grant or deny her request. Id. at 1. We have reviewed the appellant’s motion for leave to file a reply to the agency’s response but are not persuaded by her argument regarding the need for the additional submission. 5 C.F.R. § 1201.114(a)(5). Accordingly, the appellant’s motion is denied.4 disclosure or activity was a contributing factor in the personnel action at issue. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 49. 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. Id. If the agency fails to meet its clear and convincing evidentiary burden, the Board shall grant the appellant corrective action. 5 U.S.C. § 1221(e)(1)-(2). ¶6The administrative judge found that the appellant presented a prima facie case of whistleblower reprisal. ID at 61-62. In particular, he first found that the appellant made protected disclosures under 5 U.S.C. § 2302(b)(8) and engaged in activity protected under 5 U.S.C. § 2302(b)(9)(C). Id. The administrative judge next found that the appellant satisfied the contributing factor criterion through the knowledge/timing test because the proposing official knew of protected disclosures (3) and (10), and both the NODAP and proposed removal occurred within 2 years of those protected disclosures. Id.; Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶¶ 18, 21 (2015) (stating that the contributing factor element can be shown if the personnel action occurred within 1 to 2 years after the protected disclosure). On review, the parties do not dispute that the appellant made protected disclosures (3) and (10) under 5 U.S.C. § 2302(b)(8) or that such disclosures were a contributing factor in her removal, and we discern no basis to disturb these findings. PFR File, Tab 1. ¶7Although not raised by the parties on review, the administrative judge concluded that the appellant failed to meet the knowledge/timing test with respect to protected disclosure (12) and protected activity (9). ID at 61-62. He reasoned that there was no indication that the officials taking the action were aware of the protected disclosure and activity, therefore the appellant failed to establish that they were a contributing factor in her removal. Id. However, the knowledge/timing test is not the only way an appellant can establish contributing factor. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012). The5 Board has held that, if an administrative judge determines that an appellant has failed to satisfy the knowledge/timing test, he shall consider other evidence, such as evidence pertaining to the strength or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing was personally directed at the proposing or deciding officials, and whether they had a desire or motive to retaliate against the appellant. Id., ¶ 15. Any weight given to a whistleblowing disclosure, either alone or in combination with other factors, can satisfy the contributing factor standard. Id. 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. ¶8Regarding the strength of the agency’s reasons for removing the appellant, as further explained below, we find its reasons to be weak. Regarding whether the protected disclosures and activity was directed at the officials involved in the removal action, the proposing official was named in the appellant’s Scientific Integrity Complaint which is the subject of protected activity (9). ID at 27-28. Regarding whether those responsible for the removal had a desire or motive to retaliate against the appellant, the findings in the Scientific Integrity Complaint identified issues that implicate the proposing official’s managerial and supervisory capabilities. IAF, Tab 42 at 22-26. As such, the appellant’s protected activity is sufficient to establish substantial retaliatory motive. See Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 33 (2013). However, protected disclosure (12) does not appear to be directed at any individual and the record lacks evidence of a motive to retaliate based on this disclosure. ID at 40-42. Thus, we find the appellant established that her protected activity was a contributing factor in her removal. ¶9To the extent that the administrative judge did not address the Dorney factors, he erred. However, because he properly found the appellant otherwise established contributing factor in the agency’s action, any such error was harmless. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 2826 (1984) (explaining that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). The agency failed to show by clear and convincing evidence that it would have removed the appellant absent her protected disclosures. ¶10Because the administrative judge found that the appellant established a prima facie case of whistleblower reprisal, the burden shifted to the agency to establish by clear and convincing evidence that it would have taken the same action in the absence of the appellant’s protected disclosures. Pridgen, 2022 MSPB 31, ¶ 49. 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). ¶11In determining whether an agency has shown by clear and convincing evidence that it would have taken the same personnel action in the absence of the protected activity, the Board will consider all of the relevant factors, including the following factors (“ Carr factors”): (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who did not engage in such protected activity, but who are otherwise similarly situated. Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 11; see also Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board does not view the Carr factors as discrete elements, each of which the agency must prove by clear and convincing evidence, but rather weighs these factors together to determine whether the evidence is clear and convincing as a whole. Soto, 2022 MSPB 6, ¶ 13. The Board must consider all the evidence, including evidence that detracts from the conclusion that the agency met its burden.7 Id., ¶ 11; see also Whitmore v. Department of Labor , 680 F.3d 1353, 1368 (Fed. Cir. 2012). ¶12The administrative judge analyzed these factors and concluded that the agency did not have strong evidence that it found “the appellant’s performance so deficient that it warranted removal.” ID at 62-68. On review, the agency challenges this finding and argues that the administrative judge made erroneous findings of material fact and improperly weighed the evidence in his decision, particularly as it pertains to his analysis of the first Carr factor. PFR File, Tab 1 at 11-23. We are not persuaded. ¶13In the initial decision, the administrative judge placed the most weight on the first Carr factor which he found weighed in the appellant’s favor.5 ID at 65. He concluded that the agency did not prove all of the elements of its performance-based removal under chapter 43. ID at 62-64; Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 15. Specifically, he found that the agency did not prove that the appellant’s performance remained unacceptable after an adequate improvement period. ID at 64-65; Lee, 2022 MSPB 11, ¶ 15. In so finding, he reasoned that under the higher clear and convincing standard, there is evidence that the appellant’s manuscript submitted during the NODAP was acceptable and published with revisions consistent with the usual journal publication process following her return to work. ID at 64-65. ¶14The Board has held that an agency need not establish the strength of its reasons under Carr factor 1 by any particular quantum of evidence, nor must it prove the elements of its charges by clear and convincing evidence. Soto, 2022 MSPB 6, ¶ 13 & n.4. Therefore, the administrative judge erred to the extent he required the agency to prove the elements of its chapter 43 removal by clear and convincing evidence. ID at 64-65. For the reasons set forth below, however, we find that any such error was not prejudicial. 5 Although the agency rescinded the removal, the administrative judge considered the strength of its reasons for taking the action in his evaluation of Carr factor 1. ID at 62.8 ¶15The agency asserts that it had strong evidence in support of its conclusion that the appellant’s performance was unacceptable because the appellant’s NODAP manuscript was published only after it went through significant edits and added a co-author. PFR File, Tab 1 at 12-23. While the appellant admittedly made revisions to her manuscript before its publication, Hearing Transcript (HT), Day 4 at 29-30, 228, 248, 252, the agency appears to mischaracterize the record evidence to support its argument that her manuscript was deficient, PFR File, Tab 1 at 13. For example, the agency asserts that when the appellant returned to work, she edited the NODAP manuscript before submitting it to her new supervisor who still considered it to be in draft format. Id. at 13. The agency characterizes his testimony as though he stated her manuscript was not ready to be sent for publication. However, her supervisor testified that while he thought “there was probably a more elegant way to look at the data,” he thought it was fine to send to a journal. HT, Day 3 at 104-05. ¶16The agency also points to the appellant’s testimony and asserts that “[she] explained that the journal sent her ‘moderate to major revisions,’” after which she enlisted a co-author who, according to the agency, “contributed to the necessary statistical revisions that she was unable or unwilling to complete.” PFR File, Tab 1 at 13-14. It also asserts that “[the manuscript] still contained significant statistical deficiencies and no co-author when [the] [a]ppellant first submitted it to the [j]ournal.”6 Id. at 14. Nonetheless, during her testimony, the appellant explained that she made minor edits before submitting it to the journal and in turn the journal sent her moderate revisions in the first round. HT, Day 4 at 27-30, 225-32, 248, 252. She also explained she solicited a co-author to complete a supplemental analysis using a different methodology to confirm her statistical analysis was correct.7 Id. at 228-33. The record lacks evidence to 6 The record lacks evidence that the journal considered the appellant’s statistical analysis to be “significantly deficient” as the agency suggests. IAF, Tab 83 at 57-59. 7 The agency appears to assert that the appellant admitted that her former supervisor advised her to enlist a co-author to conduct such an analysis. PFR File, Tab 1 at 14;9 support that the co-author made any statistical revisions as the agency appears to claim. PFR File, Tab 1 at 13-14. ¶17The agency further argued that the administrative judge erred in “plac[ing] enormous weight on [an] out-of-court, unsworn statement.”8 PFR File, Tab 1 at 15-16. To support its removal action, the agency heavily relied on deficiencies identified in the appellant’s NODAP manuscript by the proposing official and an external reviewer.9 IAF, Tab 35 at 311-14, Tab 36 at 60-74, Tab 41 at 92-103. However, as the administrative judge acknowledged, there is evidence in the record that the appellant’s manuscript was acceptable. ID at 64-65. This evidence is not limited to the internal review that the administrative judge explicitly identified in the initial decision. ID at 65. Particularly of note is the external reviewer’s feedback, wherein he states, amongst other things, that “[the] paper clearly represents a great deal of careful work and analysis,” and “[w]ith some simplification to the figures and discussion the paper is publishable.” IAF, Tab 35 at 313-14. This is consistent with the assessment of the internal reviewer finding the manuscript “in great shape.” IAF, Tab 35 at 316. Thus, in examining the strength of the evidence in support of the agency’s removal action, we find the agency’s evidence that the appellant’s performance remained deficient after the NODAP period to be weak. Accordingly, we agree with the administrative judge that this factor favors the appellant. ¶18We next consider the second Carr factor, the strength of any motive to retaliate on the part of any agency officials who were involved in the decision in question. We have found that “[t]hose responsible for the agency’s performance HT, Day 4 at 251. However, the appellant explains that she wanted to compare the newer analysis to the older analysis that her former supervisor told her to perform. HT, Day 4 at 251. 8 The agency characterizes the internal review finding the appellant’s NODAP manuscript “in great shape” as the “out-of-court, unsworn statement.” PFR File, Tab 1 at 15; IAF, Tab 35 at 316-17. 9 The deciding official testified that the external review had a substantial impact on his removal decision. HT, Day 2 at 184.10 overall may well be motivated to retaliate even if they are not directly implicated by the disclosures . . . as the criticism reflects on them in their capacities as managers and employees.” Wilson v. Department of Veterans Affairs , 2022 MSPB 7, ¶ 65 (quoting Whitmore, 680 F.3d at 1370); Smith v. Department of the Army, 2022 MSPB 4, ¶¶ 28-29 (same). The administrative judge determined that this factor weighed in favor of the agency, reasoning, amongst other things, that its action to respond to the appellant’s protected disclosures did not indicate a motive to retaliate and that the investigation into one of the appellant’s complaints did not find specific misconduct by the officials involved in her removal. ID at 65-67. ¶19Though not disputed by the parties on review, we find the administrative judge took an overly restrictive view of the second Carr factor. In particular, he did not address whether the appellant’s disclosure reflected on the responsible officials in their capacities as managers and employees, which is sufficient to establish a substantial retaliatory motive even when the disclosure does not directly implicate or harm them. See Chavez, 120 M.S.P.R. 285, ¶ 33. However, because we agree with the administrative judge’s ultimate disposition of this appeal, we further find that, to the extent he erred in addressing the institutional motive to retaliate, any such error did not prejudice the appellant’s substantive rights. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984). ¶20Turning to the third Carr factor—whether the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated—the administrative judge found that the agency presented evidence that it placed similarly situated non-whistleblowers on a NODAP. ID at 67-68. Thus, he concluded this factor weighed in favor of the agency. Id. However, the agency presented no evidence that it removed any similarly situated non-whistleblowers from Federal service. ¶21The absence of evidence on Carr factor 3 can either be neutral or “cut[] slightly against the Government,” depending on the circumstances . Miller v.11 Department of Justice , 842 F.3d 1252, 1262 (Fed. Cir. 2016) (citing Whitmore v. Department of Labor , 680 F.3d 1353, 1374 (Fed. Cir. 2012)). The agency “is required to come forward with all reasonably pertinent evidence” regarding this factor because it has greater access to such information. Whitmore, 680 F.3d at 1374-75. The agency does not have an affirmative burden to produce evidence concerning each and every Carr factor, including Carr factor 3, but the absence of any evidence relating to Carr factor 3 can effectively remove that factor from the analysis, and may well cause the agency to fail to prove its case overall. Id. Thus, given the lack of evidence that similarly situated non -whistleblowers were removed, we modify this initial decision to find that Carr factor 3 does not weigh in favor of the agency. Nonetheless, considering all of the Carr factors, we agree with the administrative judge that the agency failed to meet its burden of proving by clear and convincing evidence that it would have taken the same personnel action absent the appellant’s protected disclosures. ID at 68; Soto, 2022 MSPB 6, ¶ 11; see also Whitmore , 680 F.3d at 1368. We therefore agree with the administrative judge that the appellant proved her affirmative defense of whistleblower retaliation. ID at 68. The agency’s remaining argument provides no basis to disturb the initial decision. ¶22On review, the agency also argues that the administrative judge inadequately analyzed and improperly weighed relevant evidence and testimony. PFR File, Tab 1 at 16-20. Specifically, it argues that the administrative judge “completely failed to even acknowledge, let alone consider” the deciding official’s removal analysis or his testimony. Id. The agency also challenges the administrative judge’s credibility findings as it relates to its witnesses and the appellant. Id. at 20-23. In particular, the agency claims that the administrative judge found its witnesses credible, while finding against the credibility of the appellant, but “gave unfettered credence” to the appellant in concluding that Carr factor 1 weighed in her favor. Id. at 22-23. However, the record is devoid of evidence that the administrative judge found that the appellant lacked credibility.12 ¶23Having considered the agency’s arguments on review, which largely constitute mere disagreement with the administrative judge’s findings, we discern no reason to reweigh the evidence or substitute our assessment of the record evidence for that of the administrative judge. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative judge's findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility); Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987); see also Haebe v. Department of Justice , 288 F.3d 1288, 1302 (Fed. Cir. 2002) (holding that the Board may overturn credibility determinations only when it has “sufficiently sound” reasons for doing so). The administrative judge’s failure to discuss in depth all aspects of the deciding official’s analysis and hearing testimony does not mean that he did not consider them and is not a basis to overturn his well-reasoned findings. 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’s cross petition for review is denied. ¶24In her cross petition for review, the appellant argues that the administrative judge erred in finding that the agency restored her to status quo ante. PFR File, Tab 3 at 20-22. Returning an appellant to the status quo ante means placing her as nearly as possible in the same situation that she would have been in if the action rescinded had never occurred. Fairley v. U.S. Postal Service , 63 M.S.P.R. 10, 12 (1994). Status quo ante relief includes cancelling the action; reinstating the appellant to her former position or other substantially equivalent position, as appropriate; back pay; interest on back pay; and other employment benefits that she would have received had the action not occurred. Samble v. Department of Defense, 98 M.S.P.R. 502, ¶ 15 (2005). The administrative judge found, and the appellant does not dispute that the agency rescinded her removal, paid her back pay with interest, processed a within-grade-increase, processed Thrift Saving Plan13 contributions, removed the removal from her personnel file, and returned the appellant to the performance standards that were in place prior to her removal. ID at 69. Thus, we discern no basis for disturbing this finding. ¶25Instead, the appellant argues that she has not been restored to status quo ante because her duties differ from those that she held before her removal. PFR File, Tab 3 at 20. Specifically, she reasserts on review that the agency refused to restore her to the committees she previously served on, forbade her from resuming her old duties, and required her to raise her own funding. Id. at 21-22; IAF, Tab 109 at 16-18. In finding that the agency effectively restored the appellant to her position as an RGE Scientist with the full range of duties, the administrative judge concluded that the agency restructured the committees the appellant served on before its proposed removal and the old duties to which she referred were collateral duties. Id. at 71. He also credited the testimony of her new supervisor that RGE Scientists are required to obtain funding. Id. The appellant’s assertions on review constitute mere disagreement with the administrative judge’s findings, which we find no reason to disturb. Crosby, 74 M.S.P.R. 98, 105-06; Broughton, 33 M.S.P.R. 357, 359. The appellant’s remaining arguments on review do not provide a basis for reversing the initial decision. ¶26To the extent that the appellant challenges the administrative judge’s findings that disclosures (6), (11), (13), and (14) were not protected, her argument is unpersuasive. PFR File, Tab 3 at 23-24. Her primary concern in this regard is that she would be able to obtain additional damages if the administrative judge did not err in finding these disclosures to be not protected. Id. at 24. However, for the reasons explained in the initial decision, we agree with the administrative judge that disclosures (6), (11), (13), and (14) were not protected. ID at 38, 43-44, 47-48. ¶27We also find unpersuasive the appellant’s argument that the administrative judge erred in denying all her witnesses who were not also agency witnesses.14 PFR File, Tab 3 at 25-27. An administrative judge has wide discretion to control the proceedings, including the authority to exclude testimony he believes would be irrelevant, immaterial, or unduly repetitious. Parker v. Department of Veterans Affairs , 122 M.S.P.R. 353, ¶ 21 (2015). The appellant has not shown the administrative judge abused her discretion in denying her request for certain witnesses or in otherwise controlling the hearing-related proceedings. ¶28An administrative judge also 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). The appellant alleges that “[the administrative judge] denied [her] the opportunity to take any discovery in his procedural ruling of February 3, 2022.” PFR File, Tab 3 at 27-28. However, the administrative judge did not deny the appellant the opportunity to engage in discovery. Instead, he denied her discovery request because she failed to initiate discovery within the specified time limit. IAF, Tab 31 at 3-7. Thus, she has not shown that the administrative judge abused his considerable discretion in this regard. ¶29Accordingly, we deny the petition for review and cross petition for review and affirm the initial decision as modified by this Order. 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.15 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. 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).16 NOTICE OF APPEAL RIGHTS10 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 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 10 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.17 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, 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.11 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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	Emmenegger_Eveline__J_SF-0432-21-0258-I-1_Final Order.pdf	2023-12-18	EVELINE J. EMMENEGGER v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. SF-0432-21-0258-I-1, December 18, 2023	SF-0432-21-0258-I-1	NP
2,601	https://www.mspb.gov/decisions/nonprecedential/Bolger_Charles_H_PH-0714-18-0342-I-1_Remand Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHARLES H. BOLGER, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER PH-0714-18-0342-I-1 DATE: December 18, 2023 THIS ORDER IS NONPRECEDENTIAL1 Shaun C. Southworth , Atlanta, Georgia, for the appellant. Shelly S. Glenn , 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 affirmed his removal under the provisions of 38 U.S.C. § 714. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the case to the Northeastern 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 agency employed the appellant as a GS-07 Supervisory Police Officer. Initial Appeal File (IAF), Tab 4 at 16. On May 21, 2018, the agency removed him under the provisions of 38 U.S.C. § 714, based on a charge of conduct unbecoming a Federal employee. Id. at 16-28. In support of its charge, the agency alleged that on March 1, 2018, the appellant instructed a subordinate Police Office to assist him in dragging an incapacitated visitor and, with the assistance of this subordinate, took hold of and dragged the visitor by his arms and shoulders approximately 20 to 25 feet away from the entrance to the Baltimore Veterans Administration (VA) emergency room (ER). Id. at 27. ¶3The appellant filed a Board appeal, challenging the merits of his removal and asserting that his removal was the product of race discrimination. IAF, Tab 1, Tab 13 at 4. After a hearing, the administrative judge issued an initial decision affirming the removal. IAF, Tab 19, Initial Decision (ID). He found that the agency proved its charge by substantial evidence. ID at 3-5. He concluded that, because the agency took its action under 38 U.S.C. § 714, he must sustain the penalty of removal. ID at 5. The administrative judge did not address the appellant’s discrimination claim. ¶4The appellant has filed a petition for review, challenging the constitutionality of 38 U.S.C. § 714 and arguing that the actions underlying the charge did not constitute misconduct. Petition for Review (PFR) File, Tab 1. The agency has not filed a response. DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge properly determined that the agency proved its charge by substantial evidence. ¶5Regarding the merits of the charge, although the appellant does not dispute that he committed the conduct described, he argues that it was not conduct2 unbecoming under the circumstances. PFR File, Tab 1 at 6-7. We are not persuaded. ¶6A charge of conduct unbecoming has no specific elements of proof; it is established by proving that the employee committed the acts alleged in support of the broad label. Canada v. Department of Homeland Security , 113 M.S.P.R. 509, ¶ 9 (2010). Conduct is unbecoming if it is improper, unsuitable, or detracting from one’s character or reputation. Social Security Administration v. Levinson , 2023 MSPB 20, ¶ 20. Under 38 U.S.C. § 714, the Board reviews an agency’s charge under a substantial evidence standard. 38 U.S.C. § 714(d)(2)(A), (3)(B); Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290, 1297-98 (Fed. Cir. 2021). ¶7Briefly and by way of background, a man appeared at the VA Baltimore ER seeking treatment for a head injury and ER staff denied him care once his non-veteran status was established. IAF, Tab 12, Hearing Recording at 2:03:10, 2:08:40 (testimony of the appellant). Subsequently, at around 1:45 a.m., the appellant was called to the ER entrance to assist a subordinate officer who had found this same man, intoxicated, lying unresponsive on the ground. Id. at 2:02:30, 2:08:30 (testimony of the appellant). After unsuccessfully attempting to rouse the man, the appellant, assisted by the subordinate officer, took him under his arms and dragged him away from the hospital entrance. Id. at 2:06:30 (testimony of the appellant). The appellant then called dispatch to get an emergency vehicle from the University of Maryland Medical Center to transport the man there for treatment. Id. at 2:09:05 (testimony of the appellant). ¶8The administrative judge found that the appellant’s conduct was unbecoming in several respects. He reasoned that the appellant’s behavior was contrary to the VA Police Officer Standards of Conduct, which require officers to “render courteous assistance to patients, visitors and employees at all times.” ID at 4; IAF, Tab 5 at 5. Second, he found that the appellant’s actions violated agency Standard Operating Procedures, which provided that, if an officer3 encountered an individual who was incapacitated due to drugs or alcohol, the individual “should be transported to Emergency Room/Urgent Care for evaluation.” ID at 4-5; IAF, Tab 5 at 13-14. For the same reasons, the administrative judge found that the appellant’s instructions to his subordinate officer to drag the incapacitated man away from the emergency room were improper. ID at 5. ¶9On petition for review, the appellant argues that no reasonable person could interpret his actions as discourteous. PFR File, Tab 1 at 6. We disagree. The appellant’s act of dragging an incapacitated individual by his arms and shoulders could be reasonably viewed as not only discourteous, but as callous and degrading. Further, discourteous does not even begin to describe the dangerous act of removing such an individual from the nearest medical care. The appellant also argues that the administrative judge failed to cite any evidence to support his finding that the individual in question was incapacitated. PFR File, Tab 1 at 6. We discern no error in the administrative judge’s logical conclusion that the individual’s lying on the ground unresponsive and having to be physically moved by the officers was evidence of his incapacity. ID at 4-5. ¶10The appellant further argues that he was not in violation of the VA Standard Operating Procedures because those procedures do not specify to which ER an incapacitated individual must be transported. PFR File, Tab 1 at 8; IAF, Tab 5 at 14. Although the appellant’s interpretation might arguably be supported by a rigid reading of the provision, the Standard Operating Procedures pertain to the conduct of operations at VA hospitals. Therefore, we find that the better interpretation is that it calls for transportation to the VA ER. In any event, the agency did not reference the Standard Operating Procedures in its proposed removal. IAF, Tab 4 at 18-20, 27-28. A conduct unbecoming charge does not require proof of specific intent. Cross v. Department of the Army , 89 M.S.P.R. 62, ¶¶ 9-10 (2001). Therefore, even if the appellant did not technically violate these procedures, we would still find the agency proved its charge because the4 appellant’s actions were unsuitable and detracted from his character and reputation. See Levinson, 2023 MSPB 20, ¶ 20. ¶11Finally, the appellant argues that it would have been unreasonable to expect him to take this individual back inside the hospital where he had just been denied treatment. PFR File, Tab 1 at 6-7. He asserts that the individual’s alleged incapacity is a red herring that changed nothing because “the VA was still refusing treatment.” PFR File, Tab 1 at 7. Once again, we disagree. This individual’s sudden incapacity changed the circumstances; when he first sought and was denied emergency room treatment, he was ambulatory and acting on his own accord, but when the appellant came across him later, he was helpless and in urgent need of medical attention. Given this material change in condition, there is no reason to think that the VA hospital would have continued to refuse him treatment. In fact, according to agency policy, the hospital would at least have given him a medical evaluation notwithstanding his non-veteran status. IAF, Tab 5 at 14. ¶12We are mindful that a law enforcement officer’s duties involve making quick decisions under difficult circumstances, and that it is easier to judge those decisions in hindsight than it is to make them in real time. However, for the reasons stated above, we agree with the administrative judge that the agency proved that the judgments and actions at issue in this case constituted conduct unbecoming. ID at 3-5. This is particularly so in light of the Board’s substantial evidence standard of review for this 38 U.S.C. § 714 removal. See 38 U.S.C. § 714(d)(2)(A), (3)(B). Substantial evidence is “[t]he degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4(p). It is a lower standard of proof than preponderant evidence. 5 C.F.R. § 1201.4(p). 5 We remand the appeal for the administrative judge to provide the parties with an opportunity to present evidence regarding whether the agency’s error in reviewing the proposed removal for substantial evidence was harmful. ¶13The agency’s deciding official sustained the appellant’s removal based on her conclusion that substantial evidence supported the charge of conduct unbecoming. IAF, Tab 4 at 18. After the initial decision in this case was issued, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) decided Rodriguez, 8 F.4th at 1296-1301, in which it determined that the agency erred by applying a substantial evidence burden of proof to its internal review of a disciplinary action under 38 U.S.C. § 714. The court found that substantial evidence is the standard of review to be applied by the Board, not the agency. Id. at 1298-1300. Instead, the agency’s deciding official must use a preponderance of the evidence burden of proof to “determine[]” whether “the performance or misconduct . . . warrants” the action at issue.2 Id. at 1298-1301 (quoting 38 U.S.C. § 714(a)(1)). The holding in Rodriguez applies to all cases pending with the Board, regardless of when the events at issue took place. Semenov v. Department of Veterans Affairs , 2023 MSPB 16, ¶ 22. ¶14Here, in the decision letter, the deciding official concluded that the charge and associated specifications “were supported by substantial evidence.” IAF, Tab 4 at 18. Although both parties requested the deciding official as a witness, the administrative judge denied these requests on the basis that “her expected testimony was not relevant to any of the issues in this 0714 appeal.” IAF, Tab 11 at 6, Tab 13 at 4-5, Tab 17 at 2. The deciding official did not testify at the hearing and so there was no additional testimony addressing the burden of proof the agency applied in sustaining the appellant’s removal or suggesting that the charges were sustained based on more than substantial evidence. 2 Preponderance of the evidence is “[t]he degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q). 6 ¶15The administrative judge and the parties did not have the benefit of Rodriguez, and therefore were unable to address its impact on the appeal. We therefore must remand this case for adjudication of whether the agency’s application of the substantial evidence standard of proof was harmful error. See Semenov, 2023 MSPB 16, ¶ 22. A harmful error is an error by the agency in the application of its procedures that is likely to have caused the agency to reach a different conclusion from the one it would have reached in the absence or cure of the error. Id., ¶ 23; 5 C.F.R. § 1201.4(r). The appellant bears the burden of proving his affirmative defenses by preponderant evidence. Semenov, 2023 MSPB 16, ¶ 23; 5 C.F.R. § 1201.56(b)(2)(i)(C). On remand, the administrative judge shall provide the parties with an opportunity to present evidence and argument, including holding a supplemental hearing, addressing whether the agency’s use of the substantial evidence standard in the removal decision constituted harmful error. Semenov, 2023 MSPB 16, ¶ 24 . The administrative judge should approve the deciding official to testify on this issue if requested by either party. 5 C.F.R. § 1201.41(b)(8), (10) (recognizing the authority of administrative judges to rule on, and order the appearance of, witnesses). The administrative judge should then address this affirmative defense in his remand initial decision. On remand, the administrative judge should adjudicate the appellant’s affirmative defense of race discrimination. ¶16We note that the appellant raised a race discrimination claim in his initial filing. IAF, Tab 1 at 15. The appellant did not mention this claim in his prehearing submission, did not object to its absence from the prehearing conference summary, and did not raise it on petition for review. IAF, Tab 13 at 4. The Board has recently affirmed the general proposition that, when an appellant raises an affirmative defense, the administrative judge must address the affirmative defense in a close of record order or prehearing conference summary. Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 10, 17 n.7. Here, the7 administrative judge did not do so. On remand, the administrative judge should provide the appellant with notice of his burden to prove this affirmative defense and an opportunity to meet that burden, including at a supplemental hearing, if requested by the appellant. On remand, the administrative judge should apply the Douglas factors and review the agency’s penalty selection. 3 ¶17The administrative judge found that because the agency proved the charge by substantial evidence, the removal penalty must be affirmed. ID at 5. In the removal decision letter, the deciding official did not reference the Board’s decision in Douglas, or otherwise indicate that she considered the factors set forth in Douglas in reaching her decision. IAF, Tab 4 at 18-20. Again, the deciding official did not testify during the hearing. So, it is not clear from the record whether she considered any of the Douglas factors in connection with her decision to remove the appellant. ¶18After the initial decision was issued in this case, the Federal Circuit issued its decision in Connor v. Department of Veterans Affairs , 8 F.4th 1319 (Fed. Cir. 2021). In Connor, the Federal Circuit determined that the agency and the Board must consider and apply the Douglas factors in selecting and reviewing the penalty under 38 U.S.C. § 714. Connor, 8. F4th at 1325-26; see Semenov, 2023 MSPB 16, ¶¶ 44-50 (stating that, consistent with the Federal Circuit’s decision in Connor, 8 F.4th at 1325-26, the agency and the Board must apply the Douglas factors in reviewing the penalty in an action taken under 38 U.S.C. § 714). ¶19The administrative judge and the parties did not have the benefit of Connor, and thus were unable to address its impact on this appeal. Therefore, remand is also required regarding this issue. Connor, 8 F.4th at 1326-27. On remand, the administrative judge should permit the parties to submit additional evidence and 3 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board provided a nonexhaustive list of factors relevant to penalty determinations. 8 argument on the penalty issue, to include holding a supplemental hearing on the penalty issue at which the deciding official is permitted to testify, if requested. See Semenov, 2023 MSPB 16, ¶ 50. In reviewing the penalty, the administrative judge should determine whether the agency proved by substantial evidence that it properly applied the relevant Douglas factors and whether the agency’s penalty selection was reasonable and, if not, remand the appellant’s removal to the agency for a new removal decision.4 Id. (citing Connor, 8 F.4th at 1326-27; Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1375-76, 1379 (Fed. Cir. 2020)). If the appellant does not prevail on his affirmative defense on remand, and the administrative judge affirms the agency’s choice of penalty, the administrative judge may adopt his prior findings concerning the agency’s charges in his remand initial decision. 4 On petition for review, the appellant challenges the constitutionality of 5 U.S.C. § 714, arguing that it violates his right to due process because the Board’s substantial evidence standard of review is too low, the standard is unworkable as a practical matter, and the statute does not authorize the Board to mitigate the penalty. PFR File, Tab 1 at 5-6. The Federal Circuit has held that section 714 “requires the Board to review for substantial evidence the entirety of the VA’s removal decision—including the penalty— rather than merely confirming that the record contains substantial evidence that the alleged conduct leading to the adverse action actually occurred.” See Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1379 (2020). The Board’s adversarial hearing process and review of the penalty in a section 714 action for substantial evidence satisfies the requirements of due process. Rodriguez, 8 F.4th at 1305-06. Therefore, we are unpersuaded by the appellant’s due process arguments.9 ORDER ¶20For the reasons discussed above, we remand this case to the Northeastern Regional Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.10	Bolger_Charles_H_PH-0714-18-0342-I-1_Remand Order.pdf	2023-12-18	CHARLES H. BOLGER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0714-18-0342-I-1, December 18, 2023	PH-0714-18-0342-I-1	NP
2,602	https://www.mspb.gov/decisions/nonprecedential/Byron_Eric_C_AT-0752-18-0408-I-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ERIC C. BYRON, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER AT-0752-18-0408-I-1 DATE: December 18, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 A . Brian Henson and Christopher Vaughn , Esquire, Decatur, Georgia, for the appellant. Christopher M. Kenny and Robert Neil Rushakoff , Esquire, Fort Eisenhower, Georgia, 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 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 administrative judge’s finding that his speech is not protected by the First 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). Amendment. And the appellant challenges the administrative judge’s finding that he did not establish his claim of retaliation for protected equal employment opportunity (EEO) activity. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. 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). ¶2Before the administrative judge, the appellant argued that his removal was an act of retaliation against him because of his protected EEO activity, specifically, his having initiated contact with the agency’s EEO office in August 2017, 3 months before the agency issued him an initial notice of proposed removal. Initial Appeal File (IAF), Tab 1 at 3, Tab 20. In finding the claim not sustained, the administrative judge found that the appellant engaged in protected activity of which his supervisor was aware but failed to establish a nexus between the alleged retaliatory action and his protected activity. IAF, Tab 31, Initial Decision (ID) at 12. On review, the appellant argues that he did establish a prima facie case of retaliation but that the agency failed to articulate a legitimate, nondiscriminatory explanation for his removal and that its proffered reasons are mere pretext. Petition for Review File, Tab 1 at 15-18. 2 ¶3The appellant’s only argument on review is that the agency has not articulated a legitimate business reason for the removal because, in his view, it was based on nothing related to his job performance and therefore did not impact the efficiency of the service. Id. at 17-18. The administrative judge found, and we agree, that there is no evidence that the deciding official in this case was motivated in any way to retaliate against the appellant. ID at 12-13. Because we discern no error with the administrative judge’s motivating factor analysis, we need not resolve the issue of whether the appellant proved that retaliation was a “but-for” cause of the agency's decisions. See Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-22, 29-33. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 5 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Byron_Eric_C_AT-0752-18-0408-I-1_Final Order.pdf	2023-12-18	ERIC C. BYRON v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-18-0408-I-1, December 18, 2023	AT-0752-18-0408-I-1	NP
2,603	https://www.mspb.gov/decisions/nonprecedential/Honse_Michelle_C_SF-1221-17-0617-W-1_Remand Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHELLE C. HONSE, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER SF-1221-17-0617-W-1 DATE: December 15, 2023 THIS ORDER IS NONPRECEDENTIAL1 Michelle C. Honse , Anaheim, California, pro se. Thomas L. Davis , Los Angeles, California, 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 denied her request for corrective action.2 For the reasons discussed below, we 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 On May 5, 2020, the appellant filed a motion to withdraw her petition for review. Petition for Review (PFR) File, Tab 17. However, she did not respond to the Acting Clerk’s orders to confirm that request, and on July 5, 2022, the Acting Clerk returned the petition to the Board for consideration. PFR File, Tabs 18-20. The appellant has since confirmed that she does not intend to withdraw her petition. PFR File, Tab 21. GRANT the appellant’s petition for review, AFFIRM the initial decision in part, VACATE the initial decision in part, and REMAND the case to the Western Regional Office for further adjudication in accordance with this Remand Order. As to the appellant’s allegation of reprisal for engaging in activity protected under 5 U.S.C. § 2302(b)(9)(C), we find that the appellant established jurisdiction over this claim and remand it for adjudication on the merits. As to the appellant’s allegation of whistleblower reprisal under 5 U.S.C. § 2302(b)(8), we agree with the administrative judge’s jurisdictional finding and finding that the appellant established that she made a protected disclosure; however, we remand this claim for further consideration of the contributing factor criterion. We also vacate the administrative judge’s finding that the agency established by clear and convincing evidence that it would have suspended the appellant absent her protected disclosures. BACKGROUND ¶2The appellant, a Health Technician with the agency’s eye clinic, filed this individual right of action (IRA) appeal alleging that the agency retaliated against her for making protected disclosures by suspending her for 7 days effective June 21, 2015, and by proposing her removal on March 3, 2017. Initial Appeal File (IAF), Tab 1, Tab 46 at 38, Tab 47 at 8. As a Health Technician in the eye clinic, the appellant’s responsibilities included ensuring that staff could perform the competencies for proper cleaning of reusable medical equipment, including a probe and Prager shells used to measure axial length. IAF, Tab 47 at 68, Tab 50, Hearing Compact Disc (HCD). The administrative judge found that the appellant nonfrivolously alleged that she made one protected disclosure on May 6, 2015, when she disclosed to the former chief of sterile processing that she had concerns regarding unsafe cleaning or sterilization practices regarding reusable medical equipment. IAF, Tabs 20, 23. The administrative judge, accordingly, held a hearing. IAF, Tab 50.2 ¶3Thereafter, the administrative judge issued an initial decision denying the appellant corrective action. IAF, Tab 51, Initial Decision (ID). The administrative judge found that the appellant exhausted her administrative remedies with regard to her May 6, 2015 disclosure in her March 14, 2017 Office of Special Counsel (OSC) complaint. ID at 8. Specifically, she found that the appellant’s complaint stated that, on May 6, 2015, she disclosed to the chief of sterile processing that she suspected that equipment used in the eye clinic had not been properly cleaned, and contended that, in retaliation for her disclosure, the agency suspended her and proposed her removal.3 ID at 3. The administrative judge noted that, in response to the Board’s jurisdictional order, the appellant submitted a copy of a May 11, 2015 complaint she made to the agency’s Office of Inspector General (OIG) alleging, inter alia, “disregard . . . for working equipment used in patient care.” ID at 8 n.3. The administrative judge found, however, that the appellant did not raise her OIG complaint in the OSC complaint. Id. ¶4The administrative judge also found that the appellant established by preponderant evidence that, because she had a reasonable belief that she had disclosed a specific danger to public health or safety due to the risk of exposure to disease by reuse of improperly cleaned medical equipment, her disclosure was protected. ID at 7. However, the administrative judge found that the appellant failed to show that her protected disclosure was a contributing factor in her 7 -day suspension and proposed removal. ID at 8-11. She found that the appellant failed 3 The appellant also alleged that the agency retaliated against her by suspending her for 14 days in January 2016. IAF, Tab 1. The administrative judge found that the Board lacks jurisdiction over the 14-day suspension as an IRA appeal because the appellant elected to grieve that suspension before filing a complaint with OSC. IAF, Tab 20. In addition, the appellant brought a separate Board appeal concerning the agency’s decision to remove her from Federal service; the administrative judge reversed her removal. See Honse v. Department of Veterans Affairs , MSPB Docket No. SF -0752-17- 0400-I-1, Initial Decision (0400 ID) (Sept. 29, 2017). The initial decision became the final decision of the Board when neither party petitioned for review. 5 C.F.R. § 1201.113.3 to establish by preponderant evidence that the official taking the suspension action was aware of her protected disclosure. Id. Additionally, she found that, because the proposed removal occurred 22 months after the alleged disclosure, the appellant failed to establish by preponderant evidence that the proposed removal 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. ¶5Even though the administrative judge found that the appellant failed to prove by preponderant evidence that her disclosure was a contributing factor in the 7-day suspension and proposed removal, the administrative judge alternatively found that, even if the appellant proved the knowledge prong of the knowledge/timing contributing factor analysis as to the suspension, the agency showed by clear and convincing evidence that it would have suspended the appellant absent any whistleblowing. ID at 11-16. She denied the appellant’s request for corrective action. ID at 16. ¶6In her petition for review,4 the appellant alleges that the administrative judge erred in finding that she did not raise the issue of retaliation for filing her OIG complaint in her OSC complaint. Petition for Review (PFR), Tab 1. 4 On January 29, 2019, after the record closed on review, the appellant requested leave to file a copy of the Office of Special Counsel (OSC) file in this case. PFR File, Tab 4. The Acting Clerk of the Board granted the appellant’s request and the appellant filed a response. PFR File, Tabs 15-16. We have considered the appellant’s response in reaching our determination that remand is appropriate under the circumstances of this case. On August 6, 2020, the appellant filed a second motion to file additional evidence. PFR File, Tab 13. In her August 6, 2020 motion, the appellant requests leave to submit an order from the Court of Appeals for the Ninth Circuit and documentation from the Department of Labor relating to her separate removal appeal. The appellant also requests leave to submit copies of an email exchange between herself and agency counsel, which the appellant alleges reflects her interest in a global settlement. The appellant’s removal is not one of the personnel actions in the instant appeal and the appellant has not explained how the evidence she seeks to submit is material to any of the dispositive issues in this IRA appeal. Thus, we deny the appellant’s motion. See 5 C.F.R. § 1201.114(k) (stating that, once the record closes, no additional material will be accepted unless it is new and material).4 Additionally, the appellant alleges that her representative did not conduct the hearing thoroughly.5 Id. DISCUSSION OF ARGUMENTS ON REVIEW The appellant established jurisdiction over her allegation that the agency retaliated against her for filing a complaint with OIG, and we remand the appeal for further adjudication on this claim. ¶7To establish jurisdiction in an IRA appeal, an appellant generally must show by preponderant evidence that she exhausted her administrative remedies before OSC and make nonfrivolous allegations that (1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by Requena v. Department of Homeland Security , 2022 MSPB 39. For the reasons below, we find that the appellant established jurisdiction over her allegation that the agency retaliated against her for filing an OIG complaint, and we remand the appeal for further adjudication on this claim. ¶8Under 5 U.S.C. § 1214(a)(3), an employee is required to “seek corrective action from [OSC] before seeking corrective action from the Board” through an IRA appeal. Miller v. Federal Deposit Insurance Corporation , 122 M.S.P.R. 3, ¶ 6 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 2015). An appellant may demonstrate exhaustion of her OSC remedies through her initial OSC complaint and other written correspondence to and from OSC concerning her allegations. Benton-Flores v. Department of Defense , 121 M.S.P.R. 428, ¶ 6 (2014). As set 5 In her petition for review, the appellant also appears to allege that the agency is not in compliance with the decision reversing her removal. Id. Such matters are outside the scope of this appeal. Additionally, the initial decision reversing the appellant’s removal informed her that, if she believed that the agency has not fully complied with the Board’s reinstatement order, she may enforce the Board’s decision by filing a petition for enforcement. 0400 ID at 18 (Sept. 29, 2017).5 forth above, the administrative judge found that the appellant exhausted her administrative remedies with regard to her May 6, 2015 disclosure in her March 14, 2017 OSC complaint. ID at 8. The administrative judge found, however, that the appellant failed to exhaust her allegation that the agency retaliated against her for filing a complaint with the OIG. ID at 8 n.3. We disagree. ¶9In reaching this finding, the administrative judge noted that the appellant did not raise her OIG complaint in her OSC complaint. However, in her March 14, 2017 OSC complaint, which the appellant submitted both below and on review, the appellant alleges that the retaliating official had “documented evidence [the appellant] presented that [she] had contacted OIG.” IAF, Tab 17 at 10; PFR File, Tab 16 at 1. Under the broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), disclosing information to an agency’s OIG or to OSC is protected regardless of the content of the appellant’s complaints, as long as such disclosures are made “in accordance with applicable provisions of law.” We therefore find that, contrary to the administrative judge’s finding, the appellant exhausted her administrative remedies regarding her allegation that she was retaliated against for filing a complaint with OIG. ¶10We also find that the appellant nonfrivolously alleged that her OIG complaint was a contributing factor in the personnel actions at issue. One way an appellant may satisfy the contributing factor element at the jurisdictional stage is by making nonfrivolous allegations that the official taking the personnel action knew of the protected activity and that the personnel action occurred within a period of time such that a reasonable person could conclude that the activity was a contributing factor in the personnel action, which is known as the “knowledge/timing” test. See 5 U.S.C. § 1221(e)(1); Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446, ¶ 7 (2014). Here, the appellant alleges in her OSC complaint that a retaliating agency official had knowledge of her OIG complaint. IAF, Tab 17 at 10. While the appellant does not specify when the6 agency official allegedly gained such knowledge, she submitted a copy of her OIG complaint. The OIG complaint is dated May 11, 2015—within 2 years of the June 21, 2015 seven-day suspension and March 3, 2017 proposed removal. IAF, Tab 5 at 11-12; see Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 25 (2016) (observing that a personnel action that takes place within 2 years of an appellant’s disclosure satisfied the knowledge/timing test). Thus, we remand the appellant’s claim that the agency retaliated against her for her OIG complaint to the regional office for further adjudication, including a hearing on this allegation. Further adjudication is required to determine whether the appellant’s protected disclosure was a contributing factor in a personnel action. ¶11As noted above, the administrative judge found that the appellant established jurisdiction with respect to her claim of retaliation for protected disclosures under 5 U.S.C. § 2302(b)(8). 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. Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661, ¶ 9 (2015). Specifically, 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 a personnel action taken against her. 5 U.S.C. § 1221(e)(1); Lu v. Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). If the appellant makes out a prima facie case, the agency will be given the opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure. 5 U.S.C. § 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335, ¶ 7. ¶12We discern no error in the administrative judge’s finding that the appellant made a protected disclosure under 5 U.S.C. § 2302(b)(8).6 However, for the 6 In 2012, Congress passed the Whistleblower Protection Enhancement Act, Pub. L. No. 112-199, 126 Stat. 1465, (WPEA) amending the WPA to, in part, reiterate that the Act protects “any disclosure” of conduct described in 5 U.S.C. § 2302(b)(8), including any such disclosure made in the normal course of an employee’s duties. 5 U.S.C.7 reasons discussed below, we find that the administrative judge did not correctly analyze whether the appellant established that her protected disclosure was a contributing factor in the contested personnel actions, i.e., her 7-day suspension and proposed removal. ¶13One way to establish the contributing factor criterion is through the knowledge/timing test, under which an employee may prove that the disclosure was a contributing factor in a personnel action through preponderant 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. See Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 10 (2013). Here, the administrative was mistaken in finding that the time period of 22 months between the appellant’s disclosure and the proposed removal was too long to satisfy the timing component of the test. See Scoggins, 123 M.S.P.R. 592, ¶ 25. Nonetheless, we discern no basis for disturbing the administrative judge’s finding that the appellant failed to establish that the responsible agency officials § 2302(f)(2) (2013); S. Rep. No. 112-155, at 5. In a subsequent case, the Board found that the WPEA amendments to 5 U.S.C. § 2302(f)(2) required a heightened evidentiary burden for appellants who made disclosures in the normal course of their duties. Benton-Flores v. Department of Defense , 121 M.S.P.R. 428, ¶ 15 (2014). Citing the Senate Report for the WPEA, the Board found that such disclosures provide a basis for a section 2302(b)(8) claim only if the employee proves the agency took the personnel action “with an improper retaliatory motive.” Id. (citing S. Rep. No. 112-155, at 5-6 (2012), reprinted in 2012 U.S.C.C.A.N. 589, 593-94). However, in December 2017, Congress passed and the President signed the National Defense Authorization Act for Fiscal Year 2018 (NDAA). The NDAA amended 5 U.S.C. § 2302(f)(2) to provide that the higher burden of proof applies only to disclosures “made during the normal course of duties of an employee, the principal job function of whom is to regularly investigate and disclose wrongdoing.” Pub. L. No. 115-91, § 1097(c)(1)(B)(ii), 131 Stat. 1283, 1618 (2017). While the events relevant to this appeal took place before the NDAA’s enactment, the Board has since determined that the new statutory provision applies retroactively. Salazar v. Department of Veterans Affairs , 2022 MSPB 42, ¶ 21. As there is nothing in the record to suggest that the appellant’s principal job function was to regularly investigate and disclose wrongdoing, we find that her disclosures were not subject to a higher burden of proof under 5 U.S.C. § 2302(f), even if they were made during the normal course of her duties. See Salazar, 2022 MSPB 42, ¶ 22. 8 had knowledge of the appellant’s disclosure. Thus, we agree with the administrative judge that, with regard to her protected disclosure, the appellant failed to establish the contributing factor standard under the knowledge/timing test. ¶14However, the knowledge/timing test is not the only way for an appellant to satisfy the contributing factor standard. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012). If an administrative judge determines that an appellant has failed to satisfy the knowledge/timing test, she should consider other evidence, such as: (1) evidence pertaining to the strength or weakness of the agency’s reasons for taking the personnel action; (2) whether the whistleblowing was personally directed at the proposing or deciding officials; and (3) whether these individuals had a desire or motive to retaliate against the appellant. Id. Any weight given to the whistleblowing disclosure, either alone or in combination with other factors, can satisfy the contributing factor standard. Id. ¶15Upon finding that the appellant did not meet the contributing factor standard under the knowledge/timing test, the administrative judge should have proceeded to address the Dorney factors as discussed above. We further note that the first Dorney factor, i.e., evidence pertaining to the strength or weakness of the agency’s reasons for taking the personnel action, may be of particular importance in this case given the agency’s failure to prove any of the charges underlying the appellant’s proposed removal. See Honse v. Department of Veterans Affairs , MSPB Docket No. SF -0752-17-0400-I-1, Initial Decision (Sept. 29, 2017; finality date November 3, 2017). Accordingly, on remand, the administrative judge should reassess whether, in light of the Dorney factors, the appellant established by preponderant evidence that her protected disclosure was a contributing factor in either or both of the contested personnel actions. While we do not anticipate that this issue will itself require further development of the record, the administrative judge should nonetheless consider any relevant evidence that may arise during the additional proceedings regarding the appellant’s OIG complaint.9 We vacate the administrative judge’s alternative finding that the agency proved by clear and convincing evidence that it would have imposed a 7-day suspension in the absence of the appellant’s whistleblowing. ¶16As noted, only if the appellant establishes a prima facie case of retaliation for whistleblowing does the burden shift to the agency to prove by clear and convincing evidence that it would have taken the personal action absent the appellant’s protected activity. Lu, 122 M.S.P.R. 335, ¶ 7. Here, however, having determined that the appellant did not establish a prima facie case of retaliation, the administrative judge considered whether the agency met its clear and convincing evidence burden with regard to the 7-day suspension. This was error. See Scoggins, 123 M.S.P.R. 592, ¶ 28. Accordingly, we vacate that portion of the initial decision finding that the agency proved by clear and convincing evidence that it would have suspended the appellant for 7 days absent her protected disclosure. The appellant’s allegation of error by her attorney provides no basis to grant the petition for review. ¶17The appellant’s claim of inadequate representation does not constitute a basis for reversing the initial decision. Sparks v. Department of the Interior , 62 M.S.P.R. 369, 371 (1994). Even if true that her representative did not conduct the hearing thoroughly, the presence of inadequate counsel is not a basis for reversal. The appellant is held responsible for the action or inaction of her counsel. See Sofio v. Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981) (finding that the appellant is responsible for the errors of his chosen representative).10 ORDER ¶18For 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 Washington, D.C.11	Honse_Michelle_C_SF-1221-17-0617-W-1_Remand Order.pdf	2023-12-15	MICHELLE C. HONSE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-17-0617-W-1, December 15, 2023	SF-1221-17-0617-W-1	NP
2,604	https://www.mspb.gov/decisions/nonprecedential/Greene_Larry_S_SF-0752-22-0365-I-1_Remand Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LARRY S. GREENE, JR., Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER SF-0752-22-0365-I-1 DATE: December 15, 2023 THIS ORDER IS NONPRECEDENTIAL1 Larry S. Greene, Jr. , Elk Grove, California, pro se. Charmaine Betty-Singleton , Sacramento, California, 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 removal 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 ¶2Effective January 6, 2019, the California Army National Guard (CANG) appointed the appellant to the position of GS-9 Information Technology (IT) Specialist (Information Security). Initial Appeal File (IAF), Tab 1 at 7. On March 30, 2022, it proposed his removal for failure to meet a condition of his employment. IAF, Tab 10 at 212-14. The CANG issued a decision to remove him on April 26, 2022, which was effective 3 days later. IAF, Tab 12 at 4-5, 51. ¶3The appellant filed the instant appeal of his removal. IAF, Tab 1 at 3, 5. He raised claims of whistleblower reprisal and race discrimination. IAF, Tab 1 at 5, 11-14, Tab 5 at 8-10. The administrative judge ordered the agency to address the authority under which the appellant was hired, if he was a tenured Federal employee with the right to appeal his removal to the Board under chapter 75 of Title 5, and if the CANG or some other entity was his employer. IAF, Tab 15 at 1-2. The agency responded to the order, acknowledging that the appellant was a tenured Federal employee with adverse action appeal rights but asserting that he had failed to state a claim upon which relief could be granted. IAF, Tab 16. As to its contention that the appellant failed to state a claim upon which relief could be granted, the agency argued that the appellant’s employer was the California Adjutant General, and that the Board lacks the authority to order an adjutant general to provide relief. Id. The appellant replied, in relevant part, by agreeing he was a tenured Federal employee and indicating that his supervisor, not the Adjutant General, was his employer. IAF, Tab 17 at 4-6. ¶4The administrative judge issued an initial decision dismissing the appeal without holding the appellant’s requested hearing. IAF, Tab 1 at 2, Tab 18, Initial Decision (ID) at 1, 8. He found that the Board has chapter 75 jurisdiction over the appellant’s removal. ID at 4-5. However, relying on the U.S. Court of Appeals for the Federal Circuit’s decision in Singleton v. Merit Systems Protection Board , 244 F.3d 1331 (Fed. Cir. 2001), he concluded that the Board lacked the authority to grant the appellant any relief. ID at 5-7. He reasoned that2 the appellant was an employee of the CANG and its Adjutant General, and “the Board does not have power to order adjutant generals to comply with Board orders.” ID at 6. ¶5The appellant has filed a petition for review, to which the agency has not responded. Petition for Review (PFR) File, Tab 1. On May 12, 2023, the Office of the Clerk of the Board issued an order to the parties to address whether the appellant was a dual status National Guard technician at the time of his removal and, if not, to identify the agency’s appointing authority and the appellant’s employer. PFR File, Tab 3. Both parties have responded.2 PFR File, Tabs 4-5. DISCUSSION OF ARGUMENTS ON REVIEW We agree with the administrative judge that the Board has chapter 75 jurisdiction over the appellant’s removal but correct his reasoning. ¶6The parties do not dispute the administrative judge’s determination that the Board has chapter 75 jurisdiction over this appeal. ID at 4-5. Nonetheless, we revisit the issue of jurisdiction here to correct the basis for concluding that the appellant was employed by an Executive agency. See Ney v. Department of Commerce, 115 M.S.P.R. 204, ¶ 7 (2010) (stating that the issue of the Board’s jurisdiction is always before the Board, and it may be raised by either party or sua sponte by the Board at any time). The administrative judge properly concluded that the appellant, a preference eligible in the excepted service, had more than 1 year of service when he was subjected to an action appealable under chapter 75. ¶7The Board has chapter 75 jurisdiction when an agency takes an “action” under 5 U.S.C. § 7512 against an individual who meets the definition of an “employee” under 5 U.S.C. § 7511(a)(1). 5 U.S.C. § 7513(d); Moncada v. 2 The agency filed its response to the Acting Clerk’s Order 1 day late. PFR File, Tab 3 at 1, 3, Tab 5. However, because the record on jurisdiction had not yet closed and because the agency may have intended its submission to be a timely reply to the appellant’s response to the Acting Clerk’s Order, we have considered the agency’s pleading. PFR File, Tab 3 at 3.3 Executive Office of the President, Office of Administration , 2022 MSPB 25, ¶¶ 13, 24. The administrative judge found that the appellant was subjected to an action under 5 U.S.C. § 7512. ID at 4. We agree. A removal is an action over which the Board has chapter 75 jurisdiction. 5 U.S.C. § 7512(1); Moncada, 2022 MSPB 25, ¶ 14. ¶8The administrative judge also found that the appellant satisfied the definition of “employee” under 5 U.S.C. § 7511(a)(1). ID at 4-5. Again, we agree. As relevant here, an “employee” for purposes of chapter 75 includes “a preference eligible in the excepted service who has completed 1 year of current continuous service in the same or similar positions . . . in an Executive agency.” 5 U.S.C. § 7511(a)(1)(B)(i). The appellant is preference eligible and at the time of his removal had completed more than 1 year of service in the same position. IAF, Tab 1 at 7, Tab 12 at 25, 51. The administrative judge thus found that the appellant satisfied the length of service requirement set forth in the definition of “employee.” ID at 4-5. We discern no basis to disturb this finding. We correct the administrative judge’s reasoning as to why the appellant worked for an “Executive agency.” ¶9The administrative judge found that the appellant was employed by an Executive agency. ID at 4-5. The definitions of “employee” for individuals in competitive-service positions and nonpreference-eligible individuals in excepted-service positions do not require employment by an agency. Moncada, 2022 MSPB 25, ¶¶ 15, 24. However, as indicated above, the definition of “employee” for a preference -eligible excepted-service individual like the appellant is one who serves, as relevant here, “in an Executive agency.” 5 U.S.C. § 7511(a)(1)(B)(i). In Moncada, 2022 MSPB 25, ¶ 15 n.4, the Board recognized this distinction. However, it declined to reach the issue of whether the Board’s chapter 75 jurisdiction over actions taken against preference -eligible individuals in the excepted service requires that an “Executive agency” take the action. Id.4 For purposes of our analysis here we assume, without deciding, that there is such a requirement. ¶10The Department of Defense (DOD) and the Department of the Army are Executive agencies for purposes of Title 5. 5 U.S.C. §§ 101 (listing the DOD as an “Executive department”), 105 (defining “Executive agency” to include an “Executive department”); 10 U.S.C. § 111(a)-(b) (providing that DOD is an “executive department” that is “composed of,” among other entities, “the Department of the Army”); see Poole v. Department of the Army , 117 M.S.P.R. 516, ¶ 3 n.1 (2012) (explaining that the Board has viewed military departments as components of the Department of Defense, and therefore as executive agencies within the meaning of 5 U.S.C. § 105); Francis v. Department of the Navy , 53 M.S.P.R. 545, 547-52 (1992) (explaining that the Department of the Army and Department of the Navy are separate from each other and from DOD for purposes of tacking service to fulfill a 1-year service requirement). The administrative judge reasoned that the CANG was also an “Executive agency” within the meaning of Title 5 because under 10 U.S.C. § 10106, “[t]he Army National Guard while in the service of the United States is a component of the Army.” ID at 5 (quoting 10 U.S.C. § 10106). ¶11This reasoning oversimplifies the nature of the National Guard. The National Guard is a hybrid state and Federal entity, serving the needs of each at different times. Singleton, 244 F.3d at 1333. The governor of each state is in charge of the state’s National Guard units except when the unit is called into active Federal service. Erdel v. Department of the Army , 2023 MSPB 27, ¶ 6 (citation omitted). In most instances, a state’s National Guard is administered by the state adjutant general. Id. (citation omitted). While serving the United States, the Army National Guard is part of the Army, but “[w]hen not on active duty, members of the Army National Guard . . . shall be administered, armed, equipped, and trained in their status as members of the Army National Guard.” Compare 10 U.S.C. § 10106 (quoted above), with 10 U.S.C. § 10107 (quoted here); see5 10 U.S.C. § 12405 (indicating that members of a National Guard are subject to Army or Navy “laws and regulations,” as applicable, when “called into Federal service”). We therefore do not agree with the administrative judge that the Army National Guard functions, at all times, within the Department of the Army. ¶12In order to clarify the nature of the appellant’s employment, the Clerk’s Office instructed the parties to address whether the appellant was a dual status National Guard technician and, if not, to identify the authority under which he was appointed and the nature of his employment. PFR File, Tab 3 at 2. In addition, the Clerk’s Office ordered the parties to indicate whether the appellant was employed by the Army, the CANG, or both. Id. at 2-3. In response, the agency argues, as it did below, that the appellant was a CANG employee who could be separated by the California Adjutant General. PFR File, Tab 5 at 5; IAF, Tab 16. The appellant asserts that he was “a [F]ederal employee that worked with the [CANG],” but he disputes that the Adjutant General had the authority to separate him. PFR File, Tab 4 at 4-5. While the parties agree that the appellant was not a dual status National Guard technician, they do not identify the authority under which he was hired. PFR File, Tab 4 at 4, Tab 5 at 4-5. Therefore, we have looked to the record to determine the relevant appointing authority. ¶13The Standard Form 50 (SF-50) memorializing the appellant’s appointment reflects that he is employed by the CANG and the California Adjutant General. IAF, Tab 12 at 25. It also states that his appointment was authorized under the National Defense Authorization Act for Fiscal Year 2017 (2017 NDAA), Pub. L. No. 114-328, §§ 932, 1084, 130 Stat. 2000, 2363-64, 2421-22 (2016) (codified in relevant part at 10 U.S.C. §§ 10217, 10508). One of these statutory provisions, 10 U.S.C. § 10217, contains a prohibition on hiring non-dual status technicians after September 30, 2017. 10 U.S.C. § 10217(e)(1), (4). Therefore, the CANG could not lawfully have hired the appellant as a non-dual status technician. ¶14The other statutory provision, 10 U.S.C. § 10508, concerns “[t]he manpower requirements of the National Guard Bureau as a joint activity of the [DOD].”6 10 U.S.C. § 10508(a). It states that “[t]he Chief of the National Guard Bureau may . . . appoint, employ, [and] administer . . . persons” within the Bureau and the National Guard of each jurisdiction under certain listed sections of Title 5 or Title 32. 10 U.S.C. § 10508(b)(1). The National Guard Bureau is a component within the DOD, and is a “joint activity of the [DOD].” 10 U.S.C. § 10501. The National Guard Bureau Chief is not an employee of a state National Guard or an adjutant general. Rather, he is a military officer appointed by and serving at the will of the President, and “a member of the Joint Chiefs of Staff.” 10 U.S.C. § 10502(a)-(b), (d). The Chief can delegate his 10 U.S.C. § 10508(b)(1) appointing, employing, and managing authority to the various adjutants general. 10 U.S.C. § 10508(b)(2); S. Rep. No. 114-255, at 256 (2016). Congress intended 10 U.S.C. § 10508 to “enhance the personnel management authority” of the National Guard Bureau Chief. S. Rep. 114-255, at 255-56. It anticipated that individuals hired under 10 U.S.C. § 10508 would be Federal civilian employees. S. Rep. No. 114-255 at 256. ¶15In exercising this delegated authority, the adjutant general for each jurisdiction is tasked with taking any “adverse actions under title 5” against such employees. 10 U.S.C. § 10508(b)(3). The individual state National Guard is the “employing agency” in any administrative claim challenging the agency’s action. 10 U.S.C. § 10508(b)(3)(A). While the responding state National Guard must defend its action and comply with any final order, “settlement, judgment, or costs . . . shall be paid from appropriated funds allocated to the National Guard of the jurisdiction concerned.” 10 U.S.C. § 10508(b)(3)(B), (E); see S. Rep. No. 114-255, at 256 (“The payment of any costs associated with such [administrative] decisions would be paid out of federal funds appropriated to the jurisdiction concerned.”). Thus, section 10508(b)(3) provides that an adverse action, such as the removal at issue here, is appealable to the Board and any resulting judgment is paid from Federal funds, notwithstanding the fact that the action was taken by a state adjutant general of a National Guard. We find that,7 under this arrangement, a state National Guard acts through the authority delegated to it by the National Guard Bureau and its Chief, which are integrated into the DOD. As such, in removing an employee appointed under 10 U.S.C. § 10508(b)(1), an adjutant general acts under the authority of the DOD, and thus as an “Executive agency” for purposes of 5 U.S.C. § 7511(a)(1)(B)(i). ¶16In reaching this conclusion, we began with the appellant’s SF-50. However, an SF-50 is not a legally operative document controlling on its face an employee’s status and rights. Scott v. Department of the Air Force , 113 M.S.P.R. 434, ¶ 8 (2010). Although the issuance of an executed SF-50 is the customary documentation for a Federal personnel action, it does not constitute the personnel action itself. Id. Rather, the Board looks at the totality of the circumstances in determining the nature of the appointment. Id. ¶17As noted above, the appellant’s appointing SF-50 refers to 10 U.S.C. § 10508 as authorizing his hiring. IAF, Tab 12 at 25. Further, in both its proposed removal and removal decision, the agency advised the appellant of his right to appeal to the Board. IAF, Tab 10 at 213, Tab 12 at 4-5. The SF-50 is consistent with the position of the parties that the Board has jurisdiction over the appellant’s removal. PFR File, Tab 4 at 4-5, Tab 5 at 4. Under the totality of the circumstances, we conclude that the appellant was appointed under 10 U.S.C. § 10508(b), and thus effectively was a DOD employee for purposes of an adverse action under Title 5. Because the DOD is an “Executive agency,” the appellant meets the definition of “employee” under 5 U.S.C. § 7511(a)(1)(B)(i), and we have jurisdiction over this appeal. The appellant stated a claim upon which relief can be granted. ¶18The 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 court determined that the Board could not order an adjutant general to provide relief to a National Guard technician employee. It reasoned that an8 adjutant general is not a Federal employee, and a state National Guard, even if an agency, “can only act through its adjutant general.” Id. The administrative judge relied on Singleton in dismissing the instant appeal. ID at 5-7. ¶19However, the 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 32 U.S.C. § 709. Erdel, 2023 MSPB 27, ¶¶ 11-16. In any event, both parties agree that the appellant was not a dual status National Guard technician. PFR File, Tab 4 at 5, Tab 5 at 4-5; see Erdel, 2023 MSPB 27, ¶ 8 n.3 (explaining that National Guard technicians are appointed under 32 U.S.C. § 709, and not under section 932 of the 2017 NDAA, which is codified at 10 U.S.C. § 10508). Further, as explained above, 10 U.S.C. § 10217(e) prevented his appointment as a non-dual status National Guard technician. Therefore, even if Singleton had not been abrogated, it would not be controlling here. ¶20We have found that the totality of the evidence supports the conclusion that the appellant was appointed under 10 U.S.C. § 10508(b). Under that provision, an employee may file an “administrative complaint, grievance, claim or action” challenging a Title 5 adverse action. 10 U.S.C. § 10508(b)(3). It would be implausible for Congress to have specifically provided for an administrative remedy for adverse actions under Title 5, but for there to be no relief available from the Board, which has jurisdiction to adjudicate such claims as to a tenured Federal employee like the appellant. 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 U.S. Code to provide for Board appeal rights to National Guard technicians, but for there to be no relief available from the Board). In the 2017 NDAA, Congress provided that the applicable adjutant general and National Guard “shall promptly implement all aspects of any final administrative order, judgment, or decision” in connection with an administrative proceeding challenging its adverse action against an individual9 hired under 10 U.S.C. § 10508(b). 2017 NDAA, § 932, 130 Stat. at 2363-64 (codified at 10 U.S.C. § 10508(b)(3)(B)). This language effectively authorizes the Board to enforce orders against the various National Guards. ¶21Further, as noted above, the costs of compliance are paid from Federal funds, eliminating any concern that state funds will be burdened. 10 U.S.C. § 10508(b)(3)(E). In fact, if an adverse action is challenged in “any court . . ., the United States shall be the sole defendant or respondent,” and the U.S. Attorney General “shall defend” it. 10 U.S.C. § 10508(b)(3)(C)-(D). Accordingly, the Board may order relief in this appeal. We vacate the initial decision, which came to the opposite conclusion.3 ORDER ¶22For 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. 3 To the extent that the appellant has made arguments regarding the merits of the appeal and the parties have submitted documents on review, they are not relevant to the jurisdictional issue and we have not considered them. E.g., PFR File, Tab 1, Tab 4 at 4-5, 8-60, Tab 5 at 7-33. The parties may raise these arguments and submit these documents on remand, consistent with the orders of the administrative judge.10	Greene_Larry_S_SF-0752-22-0365-I-1_Remand Order.pdf	2023-12-15	null	SF-0752-22-0365-I-1	NP
2,605	https://www.mspb.gov/decisions/nonprecedential/Crandall_PatriciaSF-3443-18-0312-I-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PATRICIA CRANDALL, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER SF-3443-18-0312-I-1 DATE: December 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Patricia Crandall , Antelope, California, pro se. Susan J. Sandidge , Esquire, Dallas, Texas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed her appeal for lack of jurisdiction. On petition for review, the appellant provides a summary of the events that resulted in her separation from service for cause, she denies the alleged misconduct, and she asks the Board to reinstate her employment. Petition for Review (PFR) File, Tab 1 at 5-7. The appellant also submits supplemental documentation, including but not limited 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). emails, letters, and statements of support. Id. at 8-31; PFR File, Tab 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). ¶2In dismissing this appeal for lack of jurisdiction, the administrative judge correctly found that the appellant was an employee of a nonappropriated fund instrumentality, and thus lacked appeal rights under chapter 75 and was not covered by the whistleblower protections in 5 U.S.C. § 2302(b). Initial Appeal File, Tab 12, Initial Decision at 4-6. The appellant does not dispute these findings on review, and we lack the authority to adjudicate her arguments on the merits of her termination and alleged reprisal. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of5 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Crandall_PatriciaSF-3443-18-0312-I-1_Final Order.pdf	2023-12-15	PATRICIA CRANDALL v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-3443-18-0312-I-1, December 15, 2023	SF-3443-18-0312-I-1	NP
2,606	https://www.mspb.gov/decisions/nonprecedential/Ruiz_Enrique_SF-0752-17-0167-I-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ENRIQUE RUIZ, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER SF-0752-17-0167-I-1 DATE: December 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 David Ross , Esquire, Beverly Hills, California, for the appellant. Lauren J. Johnson , San Diego, California, 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 affirmed his removal. On petition for review, the appellant argues that the administrative judge should not have credited other witnesses’ statements over his in sustaining charge 1 and asserts, only generally, that the administrative judge erred in sustaining charge 4 and in finding that the penalty of removal was 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). reasonable. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you3 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.6	Ruiz_Enrique_SF-0752-17-0167-I-1_Final Order.pdf	2023-12-15	ENRIQUE RUIZ v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-17-0167-I-1, December 15, 2023	SF-0752-17-0167-I-1	NP
2,607	https://www.mspb.gov/decisions/nonprecedential/Wilson_Timothy_D_SF-0752-18-0350-I-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TIMOTHY D. WILSON, Appellant, v. DEPARTMENT OF THE INTERIOR, Agency.DOCKET NUMBER SF-0752-18-0350-I-1 DATE: December 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Chungsoo J. Lee , Jenkintown, Pennsylvania, for the appellant. Anna Roe , Portland, Oregon, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which sustained his removal and denied his affirmative defenses. On petition for review, the appellant argues that the administrative judge either omitted or misrepresented several facts that could have altered the outcome of his 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.2 Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 2 In finding that the appellant failed to prove his affirmative defense of age discrimination, the administrative judge relied on the Board’s decision in Savage v. Department of the Army , 122 M.S.P.R. 612 (2015), overruled in part by Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25. We find that the administrative judge properly considered the evidence as a whole in finding that the appellant failed to show that discrimination was a motivating factor in his removal. See Pridgen, 2022 MSPB 31, ¶ 24. Because we find that the appellant failed to prove that age discrimination was a motivating factor in his removal, we do not separately address the issue of whether it was a but-for cause of the removal. See Johnson v. Department of Veterans Affairs , 2023 MSPB 9, ¶ 5 n.2. 3 In finding that the appellant failed to prove his affirmative defense of retaliation for engaging in protected equal employment opportunity activity, the administrative judge relied on the standard in Warren v. Department of the Army , 804 F.2d 654, 656 -58 (Fed. Cir. 1986). We find that applying the analytical framework in Pridgen does not change the result in this case. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of5 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Wilson_Timothy_D_SF-0752-18-0350-I-1_Final Order.pdf	2023-12-15	TIMOTHY D. WILSON v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. SF-0752-18-0350-I-1, December 15, 2023	SF-0752-18-0350-I-1	NP
2,608	https://www.mspb.gov/decisions/nonprecedential/Wilson_Timothy_D_SF-0752-18-0326-I-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TIMOTHY D. WILSON, Appellant, v. DEPARTMENT OF THE INTERIOR, Agency.DOCKET NUMBER SF-0752-18-0326-I-1 DATE: December 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Chungsoo J. Lee , Jenkintown, Pennsylvania, for the appellant. Anna Roe , Portland, Oregon, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his alleged constructive suspension appeal for lack of jurisdiction. On petition for review, the appellant argues that the administrative judge either omitted or misrepresented several facts that could have altered the outcome of the 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 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	Wilson_Timothy_D_SF-0752-18-0326-I-1_Final Order.pdf	2023-12-15	TIMOTHY D. WILSON v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. SF-0752-18-0326-I-1, December 15, 2023	SF-0752-18-0326-I-1	NP
2,609	https://www.mspb.gov/decisions/nonprecedential/Adler_Thomas_F_NY-0752-16-0266-I-2_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD THOMAS F. ADLER, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER NY-0752-16-0266-I-2 DATE: December 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Joel J. Kirkpatrick , Esquire, Canton, Michigan, for the appellant. Gregg A. Hand , Springfield, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which 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). the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that 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 consider the appellant’s additional claims of harmful error and to supplement the administrative judge’s analysis of his disparate penalties claim, we AFFIRM the initial decision. BACKGROUND ¶2Effective May 29, 2016, the agency removed the appellant from his Supervisory Criminal Investigator position with the Drug Enforcement Administration (DEA), Caribbean Division, in San Juan, Puerto Rico. Adler v. Department of Justice , MSPB Docket No. NY-0752-16-0266-I-1, Initial Appeal File (IAF), Tab 8 at 35, 39-40. The agency based the appellant’s removal on the following five charges: (1) making false statements (1 specification); (2) conduct unbecoming a DEA Special Agent (3 specifications); (3) failure to properly supervise (5 specifications); (4) poor judgment (3 specifications); and (5) failure to follow written instructions (1 specification). Id. at 39-40, 157-65. ¶3The initial decision contains a thorough discussion of the underlying circumstances surrounding the first two charges. Adler v. Department of Justice , MSPB Docket No. NY-0752-16-0266-I-2, Appeal File (I-2 AF), Tab 38, Initial Decision (ID) at 4-12. The appellant does not challenge that discussion on review, and we decline to repeat it in its entirety. Petition for Review (PFR) File, Tab 3 at 29. Briefly, charges 1 and 2 are related to the appellant’s efforts (while serving as the Country Attaché of the Caracas Country Office in Venezuela) to2 obtain an education allowance for his three children to attend the Department of Defense (DOD) Domestic Dependent Elementary and Secondary Schools (DDESS) in Fort Buchanan, Puerto Rico, for the 2007-2008 school year. IAF, Tab 8 at 157-62. The appellant indicated in his June 2007 request for an education allowance that he was pursuing such educational benefits pursuant to Department of State (DOS) Standardized Regulation 276.3, IAF, Tab 11 at 101, which prohibits an education allowance for a child in the United States who has a parent residing in the United States, except, as relevant here, “where the employee establishes that the parent residing in the [United States] is divested of legal custody of the child,” IAF, Tab 12 at 91. He included with his request a sworn affidavit dated June 20, 2007, in which his wife claimed that she was “divested of all legal custody” of their children. IAF, Tab 11 at 103. The agency granted the appellant’s request for an education allowance. I-2 AF, Tab 7 at 21-22. However, the notice of proposed removal states that, in accordance with DDESS and DOS regulations, the appellant’s children were not eligible to attend DDESS at Fort Buchanan for the 2007-2008 school year because he was assigned to Caracas.2 IAF, Tab 8 at 157. ¶4The appellant appealed his removal to the Board, and he requested a hearing. IAF, Tab 1 at 1-8. He raised the affirmative defenses of a violation of due process rights and harmful procedural error, and he made a disparate penalties claim. Id. at 6. The appeal was dismissed without prejudice and was refiled automatically. I-2 AF, Tab 2 at 1; IAF, Tab 20, Initial Decision at 1-2. ¶5After holding a hearing, the administrative judge issued an initial decision affirming the agency’s removal action. ID at 2, 32. Specifically, she sustained all five charges and found the existence of nexus and that the penalty of removal is within the limits of reasonableness. ID at 12-27, 29-32. She further found that 2 The appellant admitted in his hearing testimony that the regulations did not allow his children to attend school in Puerto Rico at the agency’s expense for the 2007-2008 school year. I-2 AF, Hearing Transcript at 526-27.3 the appellant failed to prove the affirmative defenses of a denial of due process or harmful error, or his disparate penalties claim. ID at 27-28, 31. ¶6The appellant has filed a petition for review. PFR File, Tab 3. The agency has filed a response, PFR File, Tab 5, to which the appellant has replied, PFR File, Tab 7. DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge properly sustained the charges. ¶7As properly stated in the initial decision, an agency must prove its charges in an adverse action appeal by preponderant evidence. ID at 2; see 5 U.S.C. § 7701(c)(1)(B). For the following reasons, we find that the administrative judge properly sustained all five of the agency’s charges. ID at 12-27. Charge 1: making false statements ¶8The agency charged the appellant with making false statements in his July 10, 2007 email to the Executive Assistant to the Deputy Chief of Operations, Office of Global Enforcement. IAF, Tab 8 at 159. Based on the appellant’s request for an education allowance indicating that he had sole custody of his children and that they did not reside with him (in Venezuela), the Executive Assistant sent the appellant an email asking him to clarify with whom his children lived. IAF, Tab 11 at 99-100. The appellant responded that his children lived at his permanent residence in Puerto Rico, “with their grandparents who care for them and transport them daily to their current school,” and that such childcare arrangements had been in effect since his arrival as the Country Attaché of the Caracas Country Office in November 2006. Id. at 99. The appellant further represented that his spouse transferred custody of their children to him “because she has a teaching contract that routinely takes her off-island for lengthy periods.” Id. ¶9As properly explained in the initial decision, to establish a charge of misrepresentation, falsification, or lying, an agency must prove that the employee4 (1) supplied wrong information, and (2) knowingly did so with the intention of defrauding, deceiving, or misleading the agency for his own private material gain. ID at 14; see Boo v. Department of Homeland Security , 122 M.S.P.R. 100, ¶¶ 10-12 (2014). Here, the administrative judge found that the agency proved that the appellant intentionally made false statements in his July 10, 2007 email to the Executive Assistant for his own private material gain, i.e., obtaining an education allowance. ID at 14. In making that finding, the administrative judge relied on the Executive Assistant’s sworn statement dated June 3, 2008, and the hearing testimony of the appellant, his wife, and his wife’s childhood friend. ID at 12-14; IAF, Tab 11 at 113-15; I-2 AF, Hearing Transcript (HT). In particular, the Executive Assistant stated that it was her belief that the appellant’s wife “did not live with the children.” IAF, Tab 11 at 113. The appellant’s wife testified that, before and after she signed the divestiture affidavit in June 2007, she resided with the children and took care of them. HT at 414-18 (testimony of the appellant’s wife). She further testified that, in the summer of 2007, she did not have a job outside of Puerto Rico. HT at 420-23 (testimony of the appellant’s wife). The friend of the appellant’s wife testified that she worked for a teaching program in Illinois and that no formal offer of employment was made to the appellant’s wife. HT at 430-31, 436 (testimony of the appellant’s wife’s friend). ¶10In his petition for review, the appellant argues that the administrative judge erred in sustaining the false statements charge because the evidence does not prove that he made a false statement with an intent to deceive the agency. PFR File, Tab 3 at 5-7, 13, 18-20, 23, Tab 7 at 4. Specifically, the appellant makes the following claims on review: his wife testified that she had intended to take a teaching position in Illinois for the upcoming school year starting in September 2007; the undisputed testimony demonstrates that his wife was planning to relocate to the United States in the weeks before June 20, 2007; the hearing testimony does not support the administrative judge’s conclusion that his wife did not have a job offer outside of Puerto Rico on July 10, 2007; he testified5 that “everything that was required by the rules at the time to obtain the [education allowance] occurred”; and the former Special Agent in Charge (SAC) V.G. testified that former SAC J.H. would have approved his request for an education allowance. PFR File, Tab 3 at 5-6, 19, Tab 7 at 5-6. The appellant further alleges that the administrative judge failed to consider that he had “numerous telephone conversations” with the Executive Assistant concerning his children’s schooling. PFR File, Tab 7 at 6. ¶11After considering the appellant’s arguments on review, we discern no reason to disturb the initial decision. We find that the appellant provided an inaccurate response to the Executive Assistant’s inquiry into his children’s living situation because he did not reveal that his wife lived with and cared for them in Puerto Rico. Moreover, the administrative judge acknowledged as true that the appellant’s wife wanted to return to the United States and was interested in the teaching program. ID at 14. However, the administrative judge correctly analyzed the appellant’s email as stating that his wife had a teaching contract that routinely required her to be off the island, and not stating that she might obtain employment outside of Puerto Rico in the future. Id. Further, we find that the above-described hearing testimony of the appellant’s wife and her friend supports the administrative judge’s conclusion that his wife did not have a job offer outside of Puerto Rico on July 10, 2007. Id. Therefore, we find that the appellant falsely stated in his email that his wife “has a teaching contract that routinely takes her off-island for lengthy periods.” IAF, Tab 11 at 99. ¶12In addition, as properly explained in the initial decision, the element of intent may be established by circumstantial evidence, and whether intent has been proven must be resolved from the totality of the circumstances. ID at 14; see Hawes v. Office of Personnel Management , 122 M.S.P.R. 341, ¶ 21 (2015). Here, the administrative judge properly considered the appellant’s testimony that he and his wife did not intend to deceive the agency and that his wife signed the divestiture affidavit because she was planning to leave Puerto Rico. ID at 13; HT6 at 491-94, 505 (testimony of the appellant). Further, we acknowledge that the appellant testified regarding his belief that he was eligible for an education allowance and that the children would be taken care of by their grandparents in Puerto Rico when his wife left to teach in Illinois. HT at 544, 557, 560, 562 (testimony of the appellant). However, we agree with the administrative judge’s finding that the agency proved the requisite element of intent. ID at 14. We find that, to support his request for an education allowance, the appellant made misrepresentations to the agency regarding his wife’s involvement with the children with a reckless disregard for the truth or with a conscious purpose to avoid learning the truth. See Boo, 122 M.S.P.R. 100, ¶ 10 (stating that intent may be inferred when an appellant makes a misrepresentation with a reckless disregard for the truth or with a conscious purpose to avoid learning the truth). Thus, the appellant’s allegedly mistaken belief that he qualified for an education allowance based on his anticipation of future events does not preclude finding intent. Notably, the Executive Assistant stated in her sworn statement that, based on the appellant’s response and the divestiture affidavit, she was satisfied that “he had complied with regulations.” IAF, Tab 11 at 113. Moreover, we find that the appellant’s arguments regarding having many telephone conversations with the Executive Assistant and testimony speculating that former SAC J.H. would have approved his request for an education allowance fail to provide a reason to disturb the initial decision. Accordingly, we find that the administrative judge properly sustained charge 1. Charge 2: conduct unbecoming a DEA Special Agent ¶13The conduct unbecoming charge contains three specifications. IAF, Tab 8 at 160-62. Regarding specification 1, the agency alleged that the appellant obtained Diplomatic passports in the summer of 2007 for his children, who used the passports to travel to Caracas, Venezuela, on August 6, 2007, before departing for school in Puerto Rico on August 11, 2007. Id. at 160. The agency further alleged that the children were not entitled to receive the Diplomatic passports7 because they did not accompany the appellant to his Caracas assignment and were not residing with him at any time in Caracas. Id. Regarding specification 2, the agency claimed that the appellant requested reimbursement for travel expenses incurred by his wife and children when they visited Caracas in August 2007. Id. at 160-61. The agency further claimed that the sole purpose of their trip was to obtain educational benefits to which the children were not entitled. Id. Regarding specification 3, the agency asserted that the appellant obtained an education allowance for his children’s attendance at the DDESS in Fort Buchanan, Puerto Rico, for the 2007-2008 school year and that he was not entitled to such educational benefits. Id. at 161-62. ¶14For the reasons described in the initial decision, we find that the administrative judge properly sustained all three specifications of the conduct unbecoming charge. ID at 15-17; IAF, Tab 10 at 99-112; I-2 AF, Tab 7 at 5-11, 15-22, Tab 10 at 14-16; HT at 483-84, 490, 571-76 (testimony of the appellant); see also Canada v. Department of Homeland Security , 113 M.S.P.R. 509, ¶ 9 (2010) (observing that a charge of conduct unbecoming has no specific elements of proof and is established by proving that the employee committed the acts alleged in support of the broad label). ¶15The appellant argues on review that charges 1 and 2 are “inextricably linked” such that, if the Board determines that the false statements charge cannot be sustained, then the conduct unbecoming charge also cannot be sustained. PFR File, Tab 3 at 7. Specifically, he asserts that, if he did not have an intent to deceive the agency regarding his eligibility for educational benefits, then both charges must fail. Id. at 29-30. We are not persuaded by this argument because, as described above, we find that the administrative judge properly sustained the false statements charge and correctly found that the agency proved intent regarding that charge. Moreover, the Board has noted that a charge of conduct unbecoming does not involve an element of intent. Boo, 122 M.S.P.R. 100, ¶ 14.8 ¶16In addition, the appellant disputes the administrative judge’s finding that his claim that the Executive Assistant ordered him to have his children report to Caracas lacks merit. PFR File, Tab 7 at 6; ID at 16. For the reasons described in the initial decision, we agree with that finding. ID at 16. In particular, the administrative judge explained that the information provided by the Executive Assistant was based on the appellant’s own misleading statements. Id. Charges 3-5: failure to properly supervise, poor judgment, and failure to follow written instructions ¶17For the reasons described in the initial decision, we find that the administrative judge properly sustained the remaining charges of failure to properly supervise,3 poor judgment, and failure to follow written instructions.4 ID at 17-27. The appellant has failed to prove the affirmative defenses of a violation of due process rights and harmful error. ¶18An appellant bears the burden of proving an affirmative defense by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C). Here, the administrative judge found that the appellant failed to prove the affirmative defenses of a denial of due process or harmful error based on the deletion of his agency email account. 3 The administrative judge sustained two of the five specifications of the charge of failure to properly supervise; thus, she properly sustained that charge. ID at 17-22; see Burroughs v. Department of the Army , 918 F.2d 170, 172 (Fed. Cir. 1990) (holding that, when more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge). 4 For the first time in his reply to the agency’s response to the petition for review, the appellant challenges the administrative judge’s findings regarding charges 3-5. PFR File, Tab 7 at 6-8. The agency did not raise a factual or legal issue regarding those charges in its response. PFR File, Tab 5. Therefore, we decline to consider the appellant’s arguments regarding charges 3-5 that he raised in his reply. E.g., Elder v. Department of the Air Force , 124 M.S.P.R. 12, ¶ 22 n.3 (2016) (declining to consider the agency’s arguments that it raised for the first time in its reply to the appellant’s response to the petition for review); see also 5 C.F.R. § 1201.114(a)(4) (providing that a reply to a response to a petition for review is limited to the factual and legal issues raised by another party in the response, and that it may not raise new allegations of error).9 ID at 27-28. The appellant disputes that finding on review and reasserts his claims that the agency committed harmful procedural error and violated his due process rights by deleting his email account, which allegedly resulted in the loss of exculpatory evidence. PFR File, Tab 3 at 20-23, Tab 7 at 4-6; I-2 AF, Tab 5 at 31-33. ¶19For the reasons described in the initial decision, we agree with the administrative judge’s finding that the appellant failed to prove his due process or harmful error claims. ID at 27-28. In particular, the record shows that the agency provided the appellant with notice of the charges underlying his proposed removal, an explanation of and access to the agency’s evidence, and an opportunity to respond orally and in writing to the deciding official before he was removed. IAF, Tab 8 at 39, 43, 45, 75-153, 157-69; see Cleveland Board of Education v. Loudermill , 470 U.S. 532, 546 (1985) (finding 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). Moreover, the administrative judge properly relied on the deciding official’s undisputed testimony that he did not consider anything that was not provided to the appellant and that any missing emails would not have negated the appellant’s responsibility to tell the truth. ID at 27-28; HT at 109, 119-20 (testimony of the deciding official); see 5 C.F.R. § 1201.4(r) (defining “harmful error” as an error by the agency 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). ¶20The appellant further raises on review the following allegations of harmful procedural error that were not addressed in the initial decision: documents that the Program Analyst referenced in her interview statement were not included in the report of investigation (ROI) despite her testimony that she provided the documents to agency investigators; the ROI contains a fraudulent document10 attributed to the DDESS in Fort Buchanan, as testified by the school’s Registrar; the deciding official could not account for the significant lapse of time from when the agency initiated its investigation in 2007, until the appellant’s removal in 2016; agency investigators failed to re-interview the appellant during the supplemental investigation and failed to interview his wife, a Foreign Support Specialist, and a State Department official; and agency investigators failed to keep a record of interviews with key witnesses that were conducted.5 PFR File, Tab 3 at 20-23, Tab 7 at 4-6, 8. As follows, we modify the initial decision to consider those additional claims of harmful error. ¶21Even assuming, without deciding, that the agency committed the procedural errors discussed above, we find that the appellant has failed to prove that such errors were harmful, i.e., that they caused substantial harm or prejudice to his rights. See 5 C.F.R. § 1201.4(r). Specifically, the deciding official testified that, although he read the Program Analyst’s interview statement, he thought he had enough information to make a decision despite the missing documents referenced in her statement.6 HT at 129-31 (testimony of the deciding official); IAF, Tab 12 at 53. The deciding official further testified that, even if the DDESS document were fraudulent, it would not negate the false statements that the appellant made 5 In his prehearing submission, the appellant timely raised the issues of the lengthy investigation, the agency’s failure to re-interview him and to keep a record of interviews, and the missing documents referenced in the Program Analyst’s interview statement. I-2 AF, Tab 5 at 9-12. The administrative judge did not issue a prehearing conference summary limiting the issues before the Board, and it appears that the appellant raised the above-described claims during the hearing. Accordingly, we find that those claims were timely raised before the close of the record. See 5 C.F.R. § 1201.59 (providing that, when there is a hearing, the record ordinarily will close at the conclusion of the hearing). 6 We find that the appellant has failed to prove his assertion on review that the agency relied on the missing documents referenced in the Program Analyst’s interview statement. PFR File, Tab 3 at 22. In particular, the appellant does not dispute the deciding official’s testimony that he did not see the documents referenced in the Program Analyst’s interview statement and that he did not consider anything that was not provided to the appellant. HT at 109, 130-31 (testimony of the deciding official).11 to the Executive Assistant. HT at 137-39 (testimony of the deciding official); IAF, Tab 10 at 118-20. Moreover, we find that the appellant has failed to prove that substantial harm or prejudice to his rights resulted from the lapse of time from when the agency initiated its investigation, until his removal, or from the agency’s failure to re-interview him, to interview other witnesses, and to keep a record of key witness interviews. In particular, the appellant had the opportunity at the hearing to testify on his behalf and to examine and cross -examine witnesses, including his wife. The agency proved nexus and the reasonableness of the penalty. ¶22The appellant does not dispute, and we discern no reason to disturb, the administrative judge’s finding that the agency proved the existence of a nexus between the sustained misconduct and the efficiency of the service. ID at 2, 29; see 5 U.S.C. § 7513(a); see also Connett v. Department of the Navy , 31 M.S.P.R. 322, 328 (1986) (finding that falsification is inherently destructive of the agency’s faith in an employee’s trustworthiness and honesty, which are essential elements in the employer-employee relationship), aff’d, 824 F.2d 978 (Fed. Cir. 1987) (Table). ¶23However, the appellant challenges the reasonableness of the penalty on review by reasserting his disparate penalties claim and by alleging that the deciding official failed to consider alternative sanctions. PFR File, Tab 3 at 7, 24-28, 30-33; I-2 AF, Tab 5 at 33, 38-39. For the reasons described in the initial decision, we agree with the administrative judge’s finding that the deciding official properly considered the relevant Douglas factors,7 including the mitigating circumstances of the appellant’s length of service and the lack of a prior disciplinary record. ID at 29-31; HT at 95 (testimony of the deciding official). We find that the appellant incorrectly asserts that the deciding official 7 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board articulated a nonexhaustive list of 12 relevant factors to be considered in determining the appropriateness of an imposed penalty.12 testified that he did not consider alternative sanctions. PFR File, Tab 3 at 27. Based on our review of the hearing testimony, we find that the administrative judge properly characterized the deciding official’s testimony as stating that he considered imposing a penalty other than removal, such as a demotion. ID at 31; HT at 96 (testimony of the deciding official). Thus, we find that the deciding official properly considered alternative sanctions. Moreover, we agree with the administrative judge’s finding that the penalty of removal is within the limits of reasonableness. ID at 32; see, e.g., Phillips v. Department of the Interior , 95 M.S.P.R. 21, ¶ 18 (2003) (holding that the agency’s removal penalty for the sustained charge of falsification was within the bounds of reasonableness), aff’d, 131 F. App’x 709 (Fed. Cir. 2005). We modify the initial decision to supplement the administrative judge’s analysis of the appellant’s disparate penalties claim. ¶24The consistency of the penalty with those imposed upon other employees for the same or similar offenses is one of the factors for consideration in determining the reasonableness of the penalty. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305 (1981). The appellant submitted exhibits N through W, as evidence of alleged comparator employees for purposes of his disparate penalties claim. I-2 AF, Tab 11 at 48-72, Tabs 12-13, Tab 14 at 4-11. The administrative judge found that the alleged comparators were not sufficiently similar to the appellant to lead a reasonable person to conclude that he was treated differently than similarly situated employees. ID at 31. In considering the disparate penalties claim, the administrative judge cited Ellis v. U.S. Postal Service, 121 M.S.P.R. 570, ¶ 11 (2014), for a proposition set forth in Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657, ¶¶ 15-16, 18 (2010). ID at 31. ¶25Since the issuance of the initial decision, the Board has issued Singh v. U.S. Postal Service, 2022 MSPB 15, ¶¶ 10-18, a precedential decision reinstating our former law governing the analysis of disparate penalties claims and overruling Lewis and other decisions. As follows, we modify the initial decision to analyze13 the appellant’s disparate penalties claim consistent with Singh. The fact that two employees come from different work units and/or supervisory chains remains an important factor in determining whether it is appropriate to compare the penalties they are given. Id., ¶ 13. In most cases, employees from another work unit or supervisory chain will not be proper comparators. Id. There must be a close connection between the misconduct or some other factor for an employee from another work unit or supervisory chain to be a proper comparator for disparate penalty purposes. Id. ¶26Here, we find that the appellant has failed to allege a valid comparator because none of the proffered employees purportedly engaged in “the same or similar offenses,” i.e., a supervisory law enforcement officer who intentionally made false statements, engaged in conduct unbecoming and poor judgment, and failed to properly supervise and to follow instructions. Douglas, 5 M.S.P.R. at 305; PFR File, Tab 3 at 25-28; see Singh, 2022 MSPB 15, ¶ 17 (observing that the Board should not attempt to weigh the relative seriousness of various offenses in order to determine whether two employees who committed different acts of misconduct were treated disparately). Therefore, we find that the appellant has failed to establish that the agency imposed disparate penalties. We further find that the deciding official’s testimony that he searched for, but did not find, comparable cases of employees charged with similar misconduct proves that the agency considered the corresponding Douglas factor. HT at 82-87 (testimony of the appellant); see Douglas, 5 M.S.P.R. at 305. ¶27Accordingly, we affirm the agency’s removal action. 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 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.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.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 9 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 18 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.19	Adler_Thomas_F_NY-0752-16-0266-I-2_Final Order.pdf	2023-12-15	THOMAS F. ADLER v. DEPARTMENT OF JUSTICE, MSPB Docket No. NY-0752-16-0266-I-2, December 15, 2023	NY-0752-16-0266-I-2	NP
2,610	https://www.mspb.gov/decisions/nonprecedential/Capestany_Joaquin_DE-0752-21-0134-A-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOAQUIN CAPESTANY, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DE-0752-21-0134-A-1 DATE: December 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jeffrey H. Jacobson , Tucson, Arizona, for the appellant. Eric McNeilus , Tucson, Arizona, 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 addendum initial decision, which denied his attorney fee petition. For the reasons discussed below, we GRANT the appellant’s petition for review, REVERSE the addendum initial decision, and award the requested fees in the amount of $81,830.00. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 ¶2On February 19, 2021, the agency removed the appellant on a charge of inability to perform the essential duties of his position due to a medical condition. Capestany v. Department of Homeland Security , MSPB Docket No. DE-0752-21- 0134-I-1, Initial Appeal File (IAF), Tab 1. The appellant filed a Board appeal on March 3, 2021. Id. Following a hearing, the administrative judge issued an initial decision finding that the agency failed to prove its charge. IAF, Tab 41, Initial Decision (ID). In reaching that finding, the administrative judge determined that the medical opinions of E.N., Psy.D., whose reports the appellant had provided the agency prior to its final decision, and I.L., M.D., whose reports were submitted for the first time on appeal, were due more weight than the opinion of B.M., M.D., which the agency had relied upon in taking the removal action. ID at 26-29. The initial decision became final on January 31, 2022, when neither party filed a petition for review. ¶3On March 28, 2022, the appellant filed a petition for attorney fees. Capestany v. Department of Homeland Security , MSPB Docket No. DE-0752-21- 0134-A-1, Attorney Fee File (AFF), Tab 1. He claimed fees in the amount of $79,130.00 and argued that an award of fees was in the interest of justice under Allen categories (2) and (5).2 Id. at 6-10, 12. The agency responded to the appellant’s motion, and the appellant replied to the agency’s response, amending his fee request to include an additional $2,250.00, for a total amount of $81,830.00. AFF, Tabs 3-4. ¶4On June 29, 2022, the administrative issued an initial decision denying the appellant’s fee petition. AFF, Tab 7, Addendum Initial Decision (AID). The 2 In Allen v. U.S. Postal Service , 2 M.S.P.R. 420, 434-35 (1980), the Board listed several examples of circumstances in which an attorney fee award would be warranted in the interest of justice: (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 gross procedural error; or (5) the agency knew or should have known that it would not prevail on the merits. 2 administrative judge determined that the only issue in dispute was whether an award of fees was in the interest of justice and that only Allen categories (2) and (5) were pertinent to that inquiry. AID at 2-3. With regard to Allen category (2), the administrative judge found that only the “clearly without merit” subcategory was applicable to removals based on medical inability to perform. AID at 4-7. He further found that the removal action was not “clearly without merit,” because his decision to reverse the action was based primarily on the report and testimony of Dr. I.L., and “[a]t the time of [the appellant’s] removal, the agency did not have the benefit of [Dr. I.L.’s] opinion.” AID at 7-8. The administrative judge went on to find that an award of fees was not warranted under Allen category (5), because there was credible, probative evidence supporting the agency’s charge at the time it took the action. AID at 9-10. ¶5On review, the appellant argues that the administrative judge erred in his analysis of both Allen category (2) and category (5). Petition for Review (PFR) File, Tab 5. The agency has filed a response, to which the appellant has replied. PFR File, Tabs 9-10. DISCUSSION OF ARGUMENTS ON REVIEW ¶6To establish entitlement to an award of attorney fees under 5 U.S.C. § 7701(g)(1), an appellant must show that (1) he was the prevailing party; (2) he incurred attorney fees pursuant to an existing attorney-client relationship; (3) an award of fees is warranted in the interest of justice; and (4) the amount of fees claimed is reasonable. Driscoll v. U.S. Postal Service , 116 M.S.P.R. 662, ¶ 7 (2011). The agency has stipulated that an attorney-client relationship existed, that the appellant incurred fees, and that the appellant was the prevailing party. IAF, Tab 3 at 7. As to the amount of fees incurred, the administrative judge found that that the itemized charges and hours, as well as the hourly rate, were reasonable on their face, and the agency does not dispute that finding on review. AID at 3 n.2. Hence, the only issue in dispute is whether a fee award is3 warranted in the interest of justice. The appellant contends that a fee award is warranted in the interest of justice under Allen category (2), which applies where the agency action was clearly without merit or wholly unfounded, or the employee was substantially innocent of the charge; and category (5), which applies where 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). ¶7We find that a fee award is warranted under Allen category (2) because the appellant was “substantially innocent” of the charge on which the removal action was based. It is well settled that substantial innocence, in itself, is an adequate ground for the allowance of fees even in a close case where the charges may not have been “clearly without merit” or “wholly unfounded.” See Boese v. Department of the Air Force , 784 F.2d 388, 391 (Fed. Cir. 1986); see also Van Fossen v. Merit Systems Protection Board , 788 F.2d 748, 749 (Fed. Cir. 1986) (stating that the court’s cases “make it clear that ‘substantial innocence’ is an operative Allen guideline in and of itself”). Our precedent also makes clear that the substantial innocence standard is not limited to charges of misconduct. See Social Security Administration v. Goodman , 33 M.S.P.R. 325, 331 (1987) (awarding fees under the substantial innocence standard where the agency sought to remove an administrative judge for alleged low productivity and the Board did not uphold the charge); Young v. Department of the Air Force , 29 M.S.P.R. 589, 590-91 (1986) (awarding fees where the appellant was substantially innocent of the charge that she failed to meet the performance requirements for her position). ¶8In the instant case, the administrative judge’s ruling that the substantial innocence standard is inapplicable to a charge of medical inability to perform was based in large part on several Board decisions. AID at 4-6; (citing Gollis v. Department of the Navy , 54 M.S.P.R. 38 (1992), overruled on other grounds , 989 F.2d 1203 (Fed. Cir. 1993) (nonprecedential); Kent v. Office of Personnel Management, 33 M.S.P.R. 361 (1987); and Simmons v. Office of Personnel Management, 31 M.S.P.R. 559 (1986)). However, Kent and Simmons were4 disability retirement appeals in which there was no charge of any kind brought against the appellant. In Gollis, as here, the appellant was removed for medical inability to perform, but in Gollis, the agency’s charge was sustained, and the removal was reversed only because the appellant subsequently recovered. Thus, the Board had no occasion in Gollis to decide whether the “substantially innocent” prong of Allen category (2) would apply to a case such as this one, where the agency failed to prove its charge. ¶9Although we do not find fault with the agency’s efforts to determine whether the appellant had a medical condition that prevented him from safely performing his law enforcement duties, Congress did not intend the substantially innocent standard to punish agency misconduct but “to minimize the burden an unsubstantiated accusation places upon innocent employees.” Yorkshire v. Merit Systems Protection Board , 746 F.2d 1454, 1457 (Fed. Cir. 1984). Here, the agency could not sustain the fundamental basis for its removal action before the Board, and thus, we agree with the appellant that he was substantially innocent of the charge against him and is entitled to an award of attorney fees in the interest of justice.3 See Boese, 784 F.2d at 391. ORDER ¶10We ORDER the agency to pay the attorney of record $81,830.00 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)). ¶11We 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 3 In light of this finding, it is unnecessary to determine whether a fee award would also be warranted under Allen category (5) or under the “clearly without merit” or “wholly unfounded” prongs of Allen category (2), nor is it necessary to address the appellant’s remaining arguments on review. See Yorkshire, 746 F.2d at 1457.5 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). ¶12No 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 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.6 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain7 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 8 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.10	Capestany_Joaquin_DE-0752-21-0134-A-1__Final_Order.pdf	2023-12-15	JOAQUIN CAPESTANY v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DE-0752-21-0134-A-1, December 15, 2023	DE-0752-21-0134-A-1	NP
2,611	https://www.mspb.gov/decisions/nonprecedential/Bearden_George_DC-844E-21-0215-I-2__Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD GEORGE BEARDEN, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DC-844E-21-0215-I-2 DATE: December 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Christopher Forasiepi , Bobby Devadoss , and Shane Robertson , Dallas, Texas, for the appellant. Jo Antonette Bell , 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 affirmed an Office of Personnel Management (OPM) reconsideration decision denying his disability retirement application. On petition for review, the appellant argues, among other things, that his former employing agency failed to submit a Standard Form 3112B, Supervisor’s Statement, for his disability 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). retirement application that would have helped establish his disability, and that the administrative judge failed to consider all of his medical records, but instead selectively cited certain portions to affirm OPM’s denial of his disability retirement application. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established 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). ¶2We agree with the administrative judge that the appellant failed to demonstrate that he was disabled for purposes of entitlement to disability retirement benefits. The appellant’s post-removal assertions and evidence of his disability are entitled to little weight. The U.S. Court of Appeals for the Federal Circuit found in Reilly v. Office of Personnel Management , 571 F.3d 1372, 1380-82 (Fed. Cir. 2009), that post-separation evidence of an appellant’s medical condition may be considered in determining eligibility for disability retirement benefits, and can be very probative of a prior disability “[w]here proximity in time, lay testimony, or some other evidence provides the requisite link to the relevant period.” However, the court added that there are circumstances when such evidence would be irrelevant or entitled to little weight, such as when a later medical condition is attributable to some incident that occurred after the period in2 question, or when there is a substantial lapse of time and a lack of evidence connecting the prior condition to the more recent medical evidence. Id. at 1382. These are the precise circumstances presented here. The appellant’s claim for disability retirement benefits relies heavily on an August 31, 2020 doctor’s letter, in which findings are based on the state of the appellant’s medical conditions as of that date. Bearden v. Office of Personnel Management , MSPB Docket No. DC-844E-21-0215-I-1, Initial Appeal File (IAF), Tab 20 at 4-7. What is missing from this letter is an evidentiary link demonstrating that the appellant was disabled during the relevant period, i.e., prior his February 26, 2019 removal from his former employing agency for misconduct. The absence of this link, combined with the lapse in time between the appellant’s removal and the August 2020 letter, renders the letter entitled to little weight. Further, to the extent that the letter describes the appellant’s subjective reports of disabling conditions extending to before his removal, such reports are not entitled to weight because they are contradicted by the most competent medical evidence, which is the evidence contemporaneous with the appellant’s pre-removal service or following, but not significantly after his removal, none of which indicates that the appellant was disabled during his Federal service for purposes of entitlement to disability retirement benefits.2 IAF, Tabs 10-21. 2 On review, the appellant argues for the first time that his former employing agency failed to submit a Standard Form (SF) 3112B, Supervisor’s Statement, as part of his disability retirement application that would have helped establish his entitlement to disability retirement benefits, and that the Department of Veterans Affairs had upgraded his disability rating from 90% to 100% “total and permanent.” Petition for Review (PFR) File, Tab 3 at 4-5. The appellant did not explain why he was unable to raise these arguments prior to the close of the record on appeal and we thus need not consider them. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016). In any event, the appellant makes no proffer of the information that a completed SF-3112B would have contained or the particular import of his upgraded disability rating, and we are thus unable to assess the relevance of his claims. Further, the appellant could have obtained the information sought on the SF-3112B from his former employing agency through the discovery process. Brownscombe v. Office of Personnel Management , 37 M.S.P.R. 382, 386 (1988), aff’d, 871 F.2d 1097 (Fed. Cir. 1989) (Table); 5 C.F.R. § 1201.73 . Similarly, we need not consider the March 18, 2020 doctor’s note the appellant submits for the first time on review, PFR File, Tab 3 at 6, because he fails to show that it was3 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 unavailable, despite the exercise of due diligence, before the record closed below. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). In any event, the letter post-dates the appellant’s removal by over 1 year and does not establish that he was disabled prior to his removal. Finally, regarding the appellant’s argument that the administrative judge did not consider all of the evidence and cited only selected portions to support her finding that he failed to establish his entitlement to disability retirement benefits, PFR File, Tab 3 at 5, the fact that the administrative judge did not mention all of the evidence does not mean that she did not consider it in reaching her decision. Marques v. Department of Health and Human Services , 22 M.S.P.R. 129, 132 (1984). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file5 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 6 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.8	Bearden_George_DC-844E-21-0215-I-2__Final Order.pdf	2023-12-14	GEORGE BEARDEN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-844E-21-0215-I-2, December 14, 2023	DC-844E-21-0215-I-2	NP
2,612	https://www.mspb.gov/decisions/nonprecedential/Marquand_Veronica_PH-0752-14-0636-B-1__Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD VERONICA MARQUAND, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER PH-0752-14-0636-B-1 DATE: December 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Veronica Marquand , Hamden, Connecticut, pro se. Norman Thompson , Esquire, Baltimore, Maryland, for the agency. Mark E. Stopa , Esquire, and Adam Janeczek , Esquire, East Hartford, Connecticut, 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 remand initial decision, which sustained her removal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the remand initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). BACKGROUND ¶2On September 27, 2010, the agency appointed the appellant to a GS-12 Contract Price/Cost Analyst position with the Defense Contract Management Agency (DCMA), Sikorsky Aircraft, in Stratford, Connecticut. Marquand v. Department of Defense , MSPB Docket No. PH-0752-14-0636-I-1, Initial Appeal File (IAF), Tab 57 at 56. This position falls within the DCMA’s Acquisition, Technology, and Logistics (AT&L) Workforce. IAF, Tab 58 at 8. Effective March 28, 2014, the agency removed the appellant for failing to meet a condition of employment, namely, achieving Defense Acquisition Workforce Improvement Act (DAWIA) Level II Certification within 40 months of her entrance on duty. Id. at 25-36, 50-54. ¶3The appellant filed a Board appeal, contesting the merits of her removal and raising affirmative defenses of harmful procedural error and violation of due process. IAF, Tabs 1, 14. She waived her right to a hearing. IAF, Tab 42. The administrative judge issued an initial decision sustaining the appellant’s removal. IAF, Tab 65, Initial Decision (ID) at 2, 52. She found that the agency proved its2 charge, the appellant failed to prove her affirmative defenses, and the appellant’s removal promoted the efficiency of the service. ID at 4-52. ¶4The appellant filed a petition for review, Petition for Review File, Tab 7, which the Board granted, Marquand v. Department of Defense , MSPB Docket No. PH-0752-14-0636-I-1, Remand Order (July 7, 2016). The Board agreed with the administrative judge that the agency proved its charge and affirmed that portion of the initial decision as modified. Remand Order, ¶ 1 n.2, ¶¶ 15-3. However, the Board disagreed with one of the administrative judge’s discovery rulings, so it remanded the appeal for further adjudication, to include permitting the appellant additional discovery about the agency’s treatment of other employees who failed to meet a condition of employment. Remand Order, ¶¶ 31-41. ¶5After further proceedings on remand, the administrative judge issued a new initial decision again sustaining the appellant’s removal. Marquand v. Department of Defense , MSPB Docket No. PH-0752-14-0636-B-1, Remand Appeal File (RAF), Tab 52, Remand Initial Decision (R ID). She found that the agency did not unjustifiably treat the appellant any differently than any similarly situated employees and that removal was a reasonable penalty. RID at 7-11. The administrative judge further found that the appellant failed to prove a due process violation in connection with the comparator evidence submitted on remand. RID at 11-13. ¶6The appellant has filed a petition for review of the remand initial decision and a supplemental petition for review. Marquand v. Department of Defense , MSPB Docket No. PH-0752-14-0636-B-1, Remand Petition for Review (RPFR) File, Tabs 6, 10. 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. RPFR File, Tabs 12-13. 3 ANALYSIS The appellant’s motion for leave to submit additional briefing is denied. ¶7After the close of the record on review, the appellant requested “leave to reference and apply” precedent that has been issued by the Board and the U.S. Court of Appeals for the Federal Circuit during the pendency of the petition for review. RPFR File, Tab 28. We have considered the appellant’s pleading, but we find that the decisions that she cites would be immaterial to the outcome of this appeal. We therefore deny the appellant’s motion. See 5 C.F.R. § 1201.114(k). Notwithstanding this ruling, in arriving at our decision, to the extent that there have been relevant developments in the case law after the remand initial decision was issued, we have considered them in arriving at our decision. The scope of the issues before the Board on remand was limited to the issues discussed in the Remand Order. ¶8On review, the appellant asserts that she is renewing all of the arguments she has made throughout her appeal. RPFR File, Tab 6 at 4. Pursuant to the Board’s Remand Order, however, the issues before the Board on remand were limited to the penalty analysis and a related due process issue. Remand Order, ¶ 40. We therefore do not address the appellant’s arguments regarding issues that are beyond the scope of the Board’s Remand Order. See Zelenka v. Office of Personnel Management , 110 M.S.P.R. 205, ¶ 15 n.3 (2008) (declining to address the appellant’s arguments because they exceeded the scope of the issues to be addressed on remand), rev’d on other grounds , 361 F. App’x 138 (Fed. Cir. 2010). The agency did not violate the appellant’s right to due process. ¶9On review, the appellant argues that the agency violated her due process rights when the deciding official considered aggravating penalty factors that were not contained in the proposal notice. RPFR File, Tab 6 at 5-7. For a tenured public employee facing removal from her position, minimum due process requires prior notice and an opportunity to respond. Cleveland Board of Education v.4 Loudermill, 470 U.S. 532, 546 (1985). An agency violates an employee’s due process rights when the deciding official relies upon new and material ex parte information as a basis for his decision. 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, 1376-77 (Fed. Cir. 1999). In Ward, the court held that, if an employee has not been given “notice of any aggravating factors supporting an enhanced penalty,” an ex parte communication with the deciding official regarding such factors may constitute a due process violation. Ward, 634 F.3d at 1280. Consistent with Ward, the Board has held that, when a deciding official considers aggravating factors that were not included in the proposal notice, the appellant is no longer on notice of portions of the evidence relied upon by the agency in imposing the penalty, resulting in a possible violation of her right to due process. See Lopes v. Department of the Navy , 116 M.S.P.R. 470, ¶ 8 (2011). ¶10Nevertheless, 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 will violate the due process guarantee of notice. Ward, 634 F.3d at 1279; Stone, 179 F.3d at 1376-77; Solis v. Department of Justice , 117 M.S.P.R. 458, ¶ 8 (2012). Ultimately, the inquiry is whether the ex parte communication is so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances. Ward, 634 F.3d at 1279; Stone, 179 F.3d at 1377; Solis, 117 M.S.P.R. 458, ¶ 8. ¶11In analyzing the penalty factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the deciding official referred to “the need for employees similarly situated to meet the condition of employment.” IAF, Tab 57 at 35. In its Remand Order, the Board directed the administrative judge to address the appellant’s due process claim related to these “similarly situated” but unidentified employees. Remand Order, ¶ 39. The Board found that further discovery regarding potential comparators might yield relevant evidence5 regarding that claim. Id. On remand, the agency submitted a declaration from the deciding official, in which he stated that he “did not consider any other specific employee but considered that allowing an employee not to meet a condition of employment in the manner that occurred here would prospectively cause other employees to believe they did not have to meet the condition of employment.” RAF, Tab 45 at 65 . In light of this unrebutted evidence, the administrative judge found that the appellant did not prove a due process violation. RID at 13 (citing Norris v. Securities and Exchange Commission , 675 F.3d 1349, 1353-54 (Fed. Cir. 2012) (finding no due process violation when the deciding official testified that the information in question played no role in her consideration of the Douglas factors or her ultimate decision to remove the appellant)). We agree with the administrative judge’s analysis. The appellant is not entitled to additional discovery. ¶12On remand, the chief issue in terms of penalty was whether the agency treated the appellant more harshly than it treated other similarly situated employees. Remand Order, ¶ 40. As directed by the Board, the administrative judge permitted the appellant’s discovery request for the disciplinary records of all DCMA AT&L employees who were charged with the same or similar offenses for the 5-year period preceding her removal. Remand Order, ¶ 40; RAF, Tab 2 at 2. The agency provided the appellant this information, but only from July 8, 2012, onward (approximately 21 months prior to the appellant’s removal). The agency explained that employee disciplinary records predating July 8, 2012, had been destroyed pursuant to its records retention schedule. RAF, Tab 22 at 18-20. The appellant filed a motion to compel, but the administrative judge denied it, finding that the agency had already provided all of the responsive information within its possession.2 RAF, Tab 21 at 4, Tab 23, Tab 26 at 2-3. 2 The appellant’s motion extended to other information that the agency destroyed pursuant to its records retention schedule, and the administrative judge denied those portions of the appellant’s motion for the same reason. RAF, Tab 2 at 2, Tabs 23, 26.6 ¶13On review, the appellant argues that, by denying her motion to compel, the administrative judge effectively limited discovery about comparators to a 2-year period, rather than the 5-year period specified by the Board. RPFR File, Tab 6 at 17-19. However, we agree with the administrative judge’s decision not to order the agency to produce information that was no longer in its possession.3 RAF, Tabs 23, 26. As the administrative judge explained, pursuant to the DCMA records retention schedule, employee disciplinary records are not permanent records and must be destroyed between 4 and 7 years after they are created. RAF, Tab 22 at 53, 108, Tab 26 at 2-3. Furthermore, the agency submitted unrebutted evidence to show that the records in question were actually destroyed after 4 years. RAF, Tab 22 at 132-34; cf. Abbott v. U.S. Postal Service , 27 M.S.P.R. 442, 445 n.3 (“The agency has not specifically alleged that records beyond three years have been destroyed pursuant to its record retention guidelines.”). ¶14We see nothing improper with the agency’s records retention schedule and no indication that the agency destroyed the records knowing that they would be subject to discovery in the instant appeal. See Jandreau v. Nicholson , 492 F.3d 1372, 1375 (Fed. Cir. 2007) (holding that an adverse inference for spoliation of evidence requires proof that evidence was destroyed “with a culpable state of mind” and that it was “relevant to the party’s claim or defense”). Therefore, to the extent that the appellant is seeking an adverse inference or other sanction against the agency, we find that no sanction is warranted. ¶15The appellant also appears to contest the Board’s prior ruling that she should be able to discover the disciplinary records of similarly situated DCMA 3 On November 27, 2018, the appellant filed a motion requesting leave to issue subpoenas to obtain evidence that she claims was “wrongly denied” during discovery. RPFR File, Tab 18 at 4. In support of her motion, the appellant argues that the requested subpoenas are necessary because the administrative judge abused her discretion in denying the appellant’s motion to compel. For the reasons discussed above, however, we find that the administrative judge did not abuse her discretion regarding discovery. Therefore, we deny the appellant’s motion.7 AT&L employees; she argues that the Board should have expanded the scope of discovery to the entire Department of Defense acquisition workforce. RPFR File, Tab 6 at 17-19. However, the Board will not reconsider issues that have already been decided in an appeal unless there is new and material evidence, controlling authority has made a contrary decision of law, or the prior decision was clearly erroneous and would work a manifest injustice. O’Connell v. Department of the Navy, 73 M.S.P.R. 235, 240 (1997). We find that none of these circumstances are present here, and we therefore decline to revisit the Board’s previous ruling on the scope of discovery. This is particularly so in light of the Board’s intervening decision in Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 13, in which it held that the universe of potential comparators may, depending on the circumstances, be limited to other employees in the same work unit as the appellant.4 The administrative judge correctly found that removal is a reasonable penalty. ¶16When the agency’s charge is sustained, as in this case, the Board will review an agency-imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion within tolerable limits of reasonableness. Penland v. Department of the Interior , 115 M.S.P.R. 474, ¶ 7 (2010). In making this determination, the Board must give due weight to the agency’s primary discretion in maintaining employee discipline and efficiency, recognizing that the Board’s function is not to displace management’s responsibility, but to ensure that managerial judgment has been properly exercised. Id. The Board will modify or mitigate a penalty only when it finds that the agency failed to weigh the relevant factors or that the penalty clearly exceeds the bounds of reasonableness. Id. The deciding official need not show that he considered all the mitigating factors, and the Board will independently weigh the relevant factors only if the deciding official failed to demonstrate that 4 To the extent that the appellant argues that the administrative judge should have certified some discovery issues for interlocutory review, RPFR File, Tab 6 at 24 n.14, we find that the issue is now moot. See Herman v. Department of Justice , 119 M.S.P.R. 642, ¶ 11 n.3 (2013).8 he considered any specific, relevant mitigating factors before deciding on a penalty. Batara v. Department of the Navy , 123 M.S.P.R. 278, ¶ 5 (2016). ¶17The Board has held that, in an adverse action resulting from an employee’s failure to maintain a condition of employment, the most relevant Douglas factors generally are (1) the nature of the offense; (2) its effect on an appellant’s performance of the job; and (3) the availability and effect of alternative sanctions. Penland, 115 M.S.P.R. 474, ¶ 8. Regarding the first two factors, the deciding official considered that the appellant was required to achieve Level II Certification in Contracting because she occupied an acquisition position and that her failure to do so disqualified her from membership in the Acquisition Corps. IAF, Tab 46 at 17-18. He also considered that the appellant’s failure to achieve Level II Certification resulted in a lack of professional development that diminished her ability to serve in an acquisition position. IAF, Tab 57 at 34. ¶18As for the availability and effectiveness of alternative sanctions, the record indicates that the deciding official did not seek a waiver of the deadline for obtaining the required certification due to the appellant twice cancelling courses she was scheduled to take and her lack of cooperation when the agency attempted to ensure her compliance with the certification requirement. Id. at 33-34. Further, the deciding official sought to place the appellant in a non-acquisition position as an alternative to removal; however, no such positions were available at Sikorsky. IAF, Tab 46 at 21, Tab 57 at 36. ¶19As explained above, the parties in this case also filed extensive evidence and argument concerning the consistency of the penalty with those previously imposed on other employees for the same or similar offenses. In her initial decision, the administrative judge considered evidence pertaining to 11 other DCMA AT&L employees who failed to attain a required DAWIA certification, but she found that none of them were similarly situated to the appellant for purposes of the penalty analysis. RID at 9-10. She further found that, even if the agency had treated the appellant more harshly than another similarly situated9 employee, considering the Douglas factors as a whole, removal was still a reasonable penalty. RID at 10 n.8. ¶20On petition for review, the appellant argues that, regarding this Douglas factor, the administrative judge incorrectly placed the burden of proof on her. RPFR File, Tab 6 at 9-11. However, we find that, regardless of the language that the administrative judge used to describe her analysis of this issue, the record is fully developed, and the appellant’s substantive rights have not been prejudiced. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984). The record shows that, of the 11 DCMA AT&L employees who failed to attain a required DAWIA certification, 3 of them were removed, 2 retired or resigned before receiving a final decision on a proposed removal, 3 were downgraded to vacant positions that did not require DAWIA Certification, and 3 received proposed downgrades to such positions. RID at 9; RAF, Tab 22 at 133. We find that this evidence shows that the agency’s treatment of the appellant was consistent with its treatment of other employees who failed to attain a DAWIA certification. Removal is the standard penalty in such cases when, as here, there are no non-acquisition positions available to which the employee could be demoted or reassigned. ¶21For these reasons, we agree with the administrative judge that the deciding official properly considered the relevant Douglas factors and that removal did not exceed the bounds of reasonableness. RID at 10-11; ID at 52. The appellant has not shown that the administrative judge was biased . ¶22Finally, the appellant raises a claim of adjudicatory bias on review. RPFR File, Tab 6 at 13-14, 23 n.3. She alleges that, throughout the appeal, the administrative judge has “spoken on behalf of” and demonstrated a bias for the agency, and has not acted reasonably. Id. at 13. 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 administrative10 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)); Smets v. Department of the Navy , 117 M.S.P.R. 164, ¶ 15 (2011), aff’d, 498 F. App’x 1 (Fed. Cir. 2012). The appellant’s allegations on review, which do not relate to any extrajudicial conduct by the administrative judge, do not rise to this level. 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. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.11 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,12 and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 13 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 14 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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.15	Marquand_Veronica_PH-0752-14-0636-B-1__Final Order.pdf	2023-12-14	VERONICA MARQUAND v. DEPARTMENT OF DEFENSE, MSPB Docket No. PH-0752-14-0636-B-1, December 14, 2023	PH-0752-14-0636-B-1	NP
2,613	https://www.mspb.gov/decisions/nonprecedential/Barger_Bryan_AT-0752-18-0093-I-1__Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BRYAN BARGER, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER AT-0752-18-0093-I-1 DATE: December 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Arlene Richardson , Esquire, Highland Home, Alabama, for the appellant. Robert Stolzman , Esquire, and Mark E. Stopa , Esquire, East Hartford, Connecticut, 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 on due process grounds. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ORDER ¶2We ORDER the agency to cancel the appellant’s removal and to restore him effective October 13, 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. ¶3We 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. ¶4We 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 3 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 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. 4 NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of 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.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ 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.	Barger_Bryan_AT-0752-18-0093-I-1__Final Order.pdf	2023-12-14	BRYAN BARGER v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-0752-18-0093-I-1, December 14, 2023	AT-0752-18-0093-I-1	NP
2,614	https://www.mspb.gov/decisions/nonprecedential/McDonald_Lawrence_DC-0752-17-0619-I-1__Remand Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LAWRENCE MCDONALD, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DC-0752-17-0619-I-1 DATE: December 14, 2023 THIS ORDER IS NONPRECEDENTIAL1 Kevin Curtis Crayon Jr. , Esquire, Kennesaw, Georgia, for the appellant. David R. Daniels , Esquire, and Kelly Wilkinson , Alexandria, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member REMAND ORDER ¶1The agency has filed a petition for review and the appellant has filed a cross petition for review of the initial decision, which reversed the appellant’s removal. For the reasons discussed below, we GRANT the petition for review, VACATE the administrative judge’s finding that the agency failed to afford the appellant due process, AFFIRM her finding that the appellant failed to prove discrimination 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). or retaliation for prior equal employment opportunity (EEO) activity, DENY the cross petition for review, and REMAND the case to the Washington Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2The agency proposed to remove the appellant from his GS-12 Program Support Specialist position based on three charges: (1) insubordination; (2) failure to request leave in accordance with established procedures; and (3) failure to carry out assigned duties. Initial Appeal File (IAF), Tab 1 at 15-16. In selecting the removal penalty, the proposal relied on the appellant’s prior misconduct, a 14-day suspension. Id. at 16. The appellant responded to the proposal, and the deciding official sustained the removal action, finding that the appellant engaged in the charged misconduct and that the removal penalty was reasonable. Id. at 10-14. ¶3The appellant filed an EEO complaint alleging discrimination and reprisal for prior EEO activity. IAF, Tab 11. The agency issued a final agency decision finding no discrimination or retaliation, id. at 6-22, and the appellant filed a timely Board appeal, IAF, Tab 1. He requested a hearing, id. at 2, that was held on December 5, 2017, IAF, Tab 36. ¶4The administrative judge issued an initial decision reversing the removal action. IAF, Tab 38, Initial Decision (ID). Specifically, she found that the agency violated the appellant’s due process rights when, in considering the Douglas factors,2 the deciding official considered that there was an “environment of fear” linked to the appellant’s presence and that his colleagues were allegedly afraid of him. ID at 4-12. The administrative judge considered the deciding official’s testimony that statements from the appellant’s coworkers showed that 2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981), the Board set forth a list of factors appropriate for consideration in determining the appropriate penalty with respect to an adverse action taken under 5 U.S.C. chapter 75. These factors are often referred to as the Douglas factors. 2 they were fearful of him. ID at 8. However, the administrative judge found that the record does not reflect that any such statements were part of the evidence package that the deciding official received and reviewed. ID at 8. The administrative judge also found that the notice of proposed removal and the decision letter did not put the appellant on notice that the agency intended to rely upon the fearfulness of his colleagues as an aggravating factor in his removal action. ID at 10. Therefore, she determined that the deciding official relied on ex parte evidence that was not cumulative to sustain the removal. ID at 11. She also found that the ex parte information was material, and, accordingly, she reversed the agency’s action. ¶5In light of the reversal of the agency’s action on the basis of a due process violation, the administrative judge found that she need not reach the merits of the appeal or determine whether the appellant proved his additional claims alleging violations of due process. ID at 12. Nevertheless, she found that the appellant’s allegations of discrimination and reprisal must be adjudicated. ID at 12-13. She found that the appellant failed to prove discrimination or reprisal for EEO activity. ID at 13-21. ¶6In its petition for review, the agency contends that the administrative judge erred in finding that the deciding official relied on ex parte evidence. It argues that the appellant’s coworkers’ statements that the deciding official relied upon were made available to the appellant and were entered into the record of the appeal. Petition for Review (PFR) File, Tab 1 at 5.3 ¶7The appellant has responded in opposition to the agency’s petition and filed a cross petition for review. PFR File, Tab 3. In his cross petition, the appellant contends that the administrative judge erred in finding that he failed to show that the removal action was taken in reprisal for his EEO activity. Id. at 6. The 3 In the initial decision, the administrative judge ordered interim relief. Attached to the agency’s petition for review is a certificate that it has complied with the administrative judge’s interim relief order. PFR File, Tab 1 at 6, 8.3 agency has responded in opposition to the appellant’s cross petition. PFR File, Tab 5. ANALYSIS The agency’s petition for review is persuasive. ¶8Our reviewing court has held that a deciding official violates an employee’s due process rights when he or she relies upon new and material ex parte information as a basis for a decision on the merits of a proposed charge or the penalty to be imposed. 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, 1376-77 (Fed. Cir. 1999). Furthermore, the Board has held that an employee’s due process right to notice extends to both ex parte information provided to a deciding official and information known personally to the deciding official if the information was considered in reaching the decision and not previously disclosed to the appellant. Solis v. Department of Justice , 117 M.S.P.R. 458, ¶ 7 (2012). In Stone, the U.S. Court of Appeals for the Federal Circuit identified the following factors to be used to determine if ex parte information is new and material: (1) whether the ex parte information introduced 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. ¶9Here, the administrative judge determined that the deciding official relied on new and material ex parte information in determining the penalty— specifically, that there was an “environment of fear” linked to the appellant’s presence. The deciding official testified that she considered statements from the appellant’s coworkers indicating that they were fearful of him and that these statements were included in the evidentiary package in the removal action submitted to her and made available to the appellant. However, the4 administrative judge found that, apart from an unsworn statement written by a colleague of the appellant, no such statements were in the record. ID at 8. In addition, the administrative judge found that neither the agency nor the appellant indicated that this unsworn statement was part of the evidence package concerning the proposed removal. Id. ¶10We agree with the agency’s contention in its petition for review that the administrative judge’s finding that no such statements existed in the record constituted factual error. The agency submitted below statements made by coworkers of the appellant stating that they were fearful of him. IAF, Tab 7 at 3, 6-8. These statements are reflected in the deciding official’s testimony regarding her specific rationale for upholding the removal penalty. Hearing Transcript (HT) at 15, 21. She testified that she considered the impact the appellant had on his coworkers and the fact they were fearful of him. Id. She further stated that there was an “environment of fear” when the appellant was present and explained that some employees were afraid to ride the elevator with him. HT at 15. Consistent with the deciding official’s testimony, each statement indicates that an element of fear existed in the work area where the appellant was assigned. One employee stated, apparently referencing the appellant, that “[n]o employee or supervisor should have to work in that type of environment of being fearful of what that employee might do.” IAF, Tab 7 at 6. Another stated that “[k]nowing that [the appellant] was in the building made me very uncomfortable, as we left out of office we heard the elevator door opened, immediately we ran down the steps.” Id. at 7. Yet another of the appellant’s coworkers stated that the appellant’s presence caused him anxiety, and he requested leave for the remainder of the day when he learned that, although the appellant was supposed to be on leave, he had come to the workplace. Id. at 8. ¶11Thus, the administrative judge erred in determining that the record did not contain coworker statements which could have been part of the evidence package that the deciding official reviewed. We therefore vacate the administrative5 judge’s findings that the agency violated the appellant’s due process rights by considering information regarding the potential impact of the appellant’s continued presence in the office. However, the Board cannot make a determination on this due process issue absent further development of the record. First, the administrative judge did not determine the credibility of the deciding official’s testimony that the employee statements were part of the package that she reviewed. Second, the record does not show whether these statements were made available for the appellant’s review.4 ¶12In sum, absent findings regarding whether the coworker statements were part of the package that the deciding official used to decide the proposed action and whether they were available to the appellant to review, the Board cannot determine whether the deciding official violated the appellant’s due process rights by considering information regarding the potential impact of the appellant’s continued presence in the office. See Ward, 634 F.3d at 1279-80; Stone, 179 F.3d at 1376-77. Accordingly, we remand the appeal for further development of the record and adjudication on this issue. If the administrative judge determines that the deciding official properly considered this information, she shall adjudicate the merits of the removal action and determine whether the appellant proved his additional claims alleging violations of due process. The appellant’s assertions on cross petition for review are unavailing. ¶13After the initial decision was issued, the Board clarified its analytical framework for age and Title VII discrimination claims in Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-25, and we apply that framework 4 We note that the notice of proposed removal informed the appellant that the package that the deciding official would rely on was available for his review. See Pumphrey v. Department of Defense , 122 M.S.P.R. 186, ¶ 7 (2015) (determining that the appellant received a pre-decisional opportunity to respond to the proposed furlough action when, among other things, the proposal notice stated that supporting materials could be found on the agency website or in designated areas). However, the record does not show whether the agency provided him with a reasonable opportunity to review these statements. 6 here. The appellant previously filed EEO complaints opposing discrimination based on race, sex, and age. IAF, Tab 26 at 48-49. To establish a claim of discrimination based on race, sex, and age, an appellant must prove by preponderant evidence that his 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. Claims of retaliation for opposing discrimination in violation of Title VII and the Age Discrimination in Employment Act are analyzed under the same framework used for Title VII discrimination claims. Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 32; Pridgen, 2022 MSPB 31, ¶ 30. ¶14The administrative judge found that the appellant failed to show that his prior EEO activity was a motivating factor in the agency’s removal. ID at 21. In his cross petition for review, the appellant appears to argue that an email sent by his second-level supervisor to the deciding official—in which she expressed her concern regarding the absence of a “workplace violence/safety threat analysis” which would focus on “the potential threat posed by [the appellant]”—was sent in retaliation for his EEO activity. IAF, Tab 31 at 20; PFR File, Tab 3 at 6. The administrative judge did not address this assertion in the initial decision, but the appellant’s counsel apparently raised such a claim, at least inferentially, during the hearing. HT at 107-09 (questions by the appellant’s counsel). The second-level supervisor sent the email on April 28, 2015, prior to the incidents of June 2016 that gave rise to the charges that resulted in the appellant’s removal. IAF, Tab 1. However, there is no evidence that the appellant’s EEO activity was a motivating factor in the agency’s removal decision. The deciding official testified that such activity was not a factor in the removal action. HT at 30 (testimony of the deciding official). Thus, the appellant failed to show that the email constituted a retaliatory motivating factor in his removal. Because we find that the appellant failed to show that discrimination or retaliation was a7 motivating factor in the removal action, we need not reach the question of whether it was a “but-for” cause. See Pridgen, 2022 MSPB 31. ¶15The appellant asserts that he established that the proposing official had animus toward his EEO activity by showing that his supervisors gave contradictory testimony about whether they allowed him time and access to work on matters relating to his EEO complaint. PFR File, Tab 3 at 7-8. This is another argument that the administrative judge did not address explicitly. It seems, however, that the appellant’s counsel at least inferentially raised the argument during the hearing. HT at 179 -83 (questions by appellant’s counsel). The proposing official’s testimony shows that he denied the appellant time to work on his EEO complaint while he was serving his 14-day suspension. HT at 179-80 (testimony of the proposing official). However, subsequently, the proposing official allowed the appellant time, to be reported in 15-minute intervals, to work on his EEO complaint when the appellant provided appropriate documentation that he was working on EEO matters. HT at 180-83. Under these circumstances, the appellant failed to show that the proposing official’s actions regarding the appellant’s requests for time to work on his EEO complaint evidenced a retaliatory motivating factor in the removal action. ¶16The appellant does not allege error in any other of the administrative judge’s findings regarding his allegation that the removal action constituted retaliation for his EEO activity, and we find none. The administrative judge properly considered the evidence as whole in finding that the appellant failed to prove his affirmative defense of retaliation for EEO activity. She thoroughly considered the documentary evidence and the witnesses’ testimony and properly determined that prohibited retaliation was not a motivating factor in the appellant’s removal. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions); Broughton v. Department of Health and Human Services ,8 33 M.S.P.R. 357, 359 (1987) (same). Thus, the administrative judge properly found that the appellant failed to meet his burden to show by preponderant evidence that his prior EEO activity was a motivating factor in the agency’s decision to remove him. Subsequent changes to our discrimination and retaliation case law do not, therefore, affect the result in this case. ORDER ¶17For 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.9	McDonald_Lawrence_DC-0752-17-0619-I-1__Remand Order.pdf	2023-12-14	LAWRENCE MCDONALD v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-17-0619-I-1, December 14, 2023	DC-0752-17-0619-I-1	NP
2,615	https://www.mspb.gov/decisions/nonprecedential/McDonough_Patrick_PH-0752-17-0156-I-4_Remand Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PATRICK J. MCDONOUGH, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency.DOCKET NUMBER PH-0752-17-0156-I-4 DATE: December 13, 2023 THIS ORDER IS NONPRECEDENTIAL1 James W. Richard , Esquire, Silver Spring, Maryland, for the appellant. Rashawn Rich George , Esquire, College Park, Georgia, for the agency. Rebecca G. Snowdall , Esquire, and Maria Surdokas , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which addressed a pair of joined removal appeals, ordering the agency to pay the appellant $27,730.64 regarding its first removal and sustaining its second removal. We SEVER the joined removal appeals and address just the first in this 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). decision.2 For the reasons discussed below, we GRANT the appellant’s petition for review as to the first removal appeal, VACATE the administrative judge’s findings about premium pay for status quo ante relief and mootness, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2This decision stems from two appeals that the administrative judge joined for adjudication.3 In his first appeal, the appellant challenged his December 2016 removal from the position of Air Traffic Control Specialist. The removal was based on charges of absence without leave (AWOL) and failure to follow leave procedures. McDonough v. Department of Transportation , MSPB Docket No. PH-0752-17-0156-I-1, Initial Appeal File , Tab 1, Tab 4 at 27-31, 70-73. Well into the adjudication of that appeal, the agency determined that the deciding official had mistakenly denied the appellant due process by engaging in ex parte communication, and, consequently, it rescinded the first removal action. McDonough v. Department of Transportation , MSPB Docket No. PH-0752-17- 0156-I-2, Refiled Appeal File , Tab 24 at 10-12; McDonough v. Department of Transportation, MSPB Docket No. PH-0752-19-0113-I-1, Initial Appeal File (0113 IAF), Hearing Transcript, Day 2 (0113 HT2) at 80 (testimony of the appellant’s second-level supervisor). The agency then removed the appellant a 2 The appellant’s other appeal, MSPB Docket No. PH-0752-19-0113-I-1, is addressed in a separate decision. 3 The appellant’s first appeal has multiple docket numbers due to dismissals without prejudice to accommodate adjudicatory delays. McDonough v. Department of Transportation, MSPB Docket No. PH-0752-17-0156-I-1, Initial Appeal File, Tab 1; McDonough v. Department of Transportation , MSPB Docket No. PH-0752-17-0156-I-2, Refiled Appeal File, Tab 1; McDonough v. Department of Transportation , MSPB Docket No. PH-0752-17-0156-I-3, Refiled Appeal File, Tab 1; McDonough v. Department of Transportation , MSPB Docket No. PH-0752-17-0156-I-4, Refiled Appeal File, Tab 1. The appellant’s second appeal has just one docket number. McDonough v. Department of Transportation , MSPB Docket No. PH-0752-19-0113-I-1, Initial Appeal File, Tab 1. 2 second time, 2 years after its original removal action, based on the same misconduct and charges as the first removal. 0113 IAF, Tab 3 at 10-13, 34-37. In his second appeal, the appellant challenged this second removal action. 0113 IAF, Tab 1. The administrative judge joined the appeals, developed the records, and held a 3-day hearing before issuing a single decision. 0113 IAF, Tab 46, Initial Decision (ID); 0113 IAF, Hearing Transcript, Day 1; 0113 HT2; 0113 IAF, Hearing Transcript, Day 3 (0113 HT3). ¶3Regarding the rescinded removal action, the administrative judge first found that the agency erred by precluding the appellant from returning to his Air Traffic Control duties, but this was rendered moot by the second removal action. ID at 8-10. She next found that, although the agency provided the appellant with some backpay and benefits for the relevant period, he was entitled to another $17,730.64 in overtime and premium pay, along with $10,000 in award pay. ID at 10-15. Lastly, the administrative judge found that the appellant failed to prove his claim of disability discrimination regarding his first removal action, so he was not entitled to compensatory damages. ID at 15. ¶4Regarding the second removal action, dated December 2018, the administrative judge first found that the agency proved both specifications underlying its AWOL charge and its lone specification of failure to follow leave procedures. ID at 15-23. Next, she found that the appellant failed to prove his claims of disability discrimination, ID at 24-28, reprisal for requesting reasonable accommodation, ID at 28, due process violations, ID at 30-36, harmful procedural error, ID at 36-38, and disparate penalty, ID at 38-40. Finally, the administrative judge found that the agency proved the requisite nexus and reasonableness of its penalty. ID at 40-42. ¶5The appellant has filed a timely petition for review. McDonough v. Department of Transportation , MSPB Docket No. PH-0752-19-0113-I-1, Petition for Review (0113 PFR) File, Tabs 1-6. Regarding his first removal, i.e., the subject of this decision, the appellant argues that the administrative judge should3 have found that he was entitled to additional premium pay as well as relocation pay for purposes of the agency returning him to status quo ante. 0113 PFR File, Tab 6 at 28-29. The appellant also presents arguments pertaining to his second removal, id. at 13-28, but we will address them in a separate decision now that we have severed the joined appeals. The agency has not filed a response or cross petition for review. See 0113 PFR File, Tabs 8-11. ANALYSIS ¶6Even though an action may be within the Board’s jurisdiction, subsequent events may render an appeal moot and foreclose the Board’s review. Price v. U.S. Postal Service , 118 M.S.P.R. 222, ¶ 8 (2012). Mootness can arise at any stage of litigation, and an appeal will be dismissed as moot when, by virtue of an intervening event, the Board cannot grant any effectual relief in favor of the appellant, as when the appellant, by whatever means, obtained all of the relief he could have obtained had he prevailed before the Board and thereby lost any legally cognizable interest in the outcome of the appeal. Id. The agency’s unilateral modification of its personnel action after an appeal has been filed cannot divest the Board of jurisdiction, unless the appellant consents to such divestiture or the agency completely rescinds the action being appealed. Id. For an appeal to be deemed moot, the agency’s rescission must be complete, i.e., the appellant must be returned to the status quo ante and not left in a worse position as a result of the cancellation than he would have been in if the matter had been adjudicated and he had prevailed. Id. If an appeal is not truly moot despite cancellation of the action under appeal, the proper remedy is for the Board to retain jurisdiction and to adjudicate the appeal on the merits. Id. ¶7The agency rescinded its first removal action, and there is no remaining dispute regarding most of its efforts to return the appellant to the status quo ante and render the first removal appeal moot. The only exceptions are the appellant’s arguments that he is entitled to an additional $11,931.32 in premium pay and4 another $27,000 in relocation pay. 0113 PFR File, Tab 6 at 28-29. For the reasons that follow, we are not persuaded by the appellant’s arguments about relocation pay, but we find that remand is necessary for further development of the record regarding the appellant’s premium pay claim. The appellant has not shown that the administrative judge erred regarding relocation pay. ¶8Regarding the disputed relocation pay, the administrative judge found that the appellant was not entitled to the $27,000 provided to some employees when an agency facility closed and the employees were relocated to another facility. ID at 14-15. She reasoned that the appellant had moved far away from either facility for personal reasons after the first removal action, so he was not entitled to expenses incurred in relocating from the one facility to the other. Id. ¶9On review, the appellant challenges this finding. However, the appellant has presented us with little more than a conclusory assertion. He argues that he “is entitled to relocation reimbursement like all other staff at Boston.” 0113 PFR File, Tab 6 at 28-29. We are not persuaded. Status quo ante relief does not entitle an appellant to be placed in a better position than he would have enjoyed had the personnel action not occurred. Gingery v. Department of Defense , 121 M.S.P.R. 423, ¶ 8 (2014). Without any substantive argument or evidence to the contrary, it seems that the appellant is seeking relocation pay for a move that has never and will never occur. Because that would put him in a better position than if the agency had not issued the now-cancelled first removal action, we agree with the administrative judge that the appellant is not entitled to relocation pay. The record is insufficiently developed regarding any premium pay required to return the appellant to status quo ante. ¶10Regarding the only other disputed amount, the administrative judge found that status quo ante relief required that the agency provide the appellant with premium pay totaling $29,661.96, but the agency had already paid the appellant $11,931.32 in premium pay, leaving a balance of $17,730.64. ID at 11-13, 43.5 According to the appellant, the administrative judge erred in subtracting the $11,931.32 the agency had already paid, because that sum was controller incentive pay, which he describes as similar to locality pay and different from the premium pay he believes he is owed. 0113 PFR File, Tab 6 at 28. Notably, though, the appellant has failed to direct us to any particular evidence in the extensive record to support his argument. ¶11After reviewing the record, we find the following. First, the appellant submitted a lengthy, unexplained, spreadsheet of alleged overtime, holiday, and other premium pay he purportedly lost as a result of the rescinded removal action. 0113 IAF, Tab 18 at 39-68. The administrative judge asked the appellant to provide further clarification regarding this argument, and the appellant submitted a description of the categories or abbreviations used in that spreadsheet but no further clarification or explanation of the calculations. 0113 IAF, Tab 20 at 2, Tab 22 at 4-5. The agency then submitted its own calculations, 0113 IAF, Tab 26 at 4-9, along with extensive spreadsheets or other documentation, 0113 IAF, Tab 26 at 10-76, Tab 27 at 4-42, Tab 28 at 4-23. The agency similarly failed to provide any significant or substantive explanation. However, the agency’s calculations explicitly included some “premium pay,” but no overtime pay. E.g., 0113 IAF, Tab 22 at 4-5. During the hearing, the appellant testified about how he prepared the spreadsheet of overtime and other pay he believed he was owed, but this testimony did not contain any substantive explanation about the now-disputed premium pay. 0113 HT3 at 56-67 (testimony of the appellant). The appellant did not, for example, provide a detailed explanation of which types of overtime or other pay he was not yet paid as compared to those he was already paid. And therein lies the problem before us. ¶12The appellant calculated the various types of premium pay he was owed, and the administrative judge credited his accounting in the absence of contrary evidence from the agency. E.g., 0113 IAF, Tab 18 at 68; ID at 12-13. But the agency submitted records indicating that the backpay it provided to the appellant6 included “premium pay.” 0113 IAF, Tab 26 at 4; ID at 13. The administrative judge subtracted that “premium pay” amount from the more detailed overtime and other premium pay totals the appellant had come up with. However, the appellant asserts that his calculations had already accounted for the amount that the agency provided him as “premium pay.” 0113 PFR File, Tab 6 at 28. The agency has not presented argument or evidence to the contrary, below or on review. ¶13Under these circumstances, before we can dismiss the appeal as moot, we find it most appropriate to remand the agency’s first removal action for further adjudication. The administrative judge should further develop the record as it relates to the premium pay the agency already provided as compared to the premium pay the appellant alleges that he is still owed, as the parties have not presented adequate argument and evidence about the issue. Harris v. Department of the Air Force , 96 M.S.P.R. 193, ¶¶ 7-10 (2004) (remanding for further development where an agency’s submissions were insufficient to establish that an employee was given all that was required for status quo ante relief after cancellation of his removal). The administrative judge should issue a new decision about the appellant’s first removal appeal. As she deems appropriate, the administrative judge may incorporate her prior findings about other matters while resolving the remaining questions we identified surrounding the appellant’s premium pay.7 ORDER ¶14For 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.8	McDonough_Patrick_PH-0752-17-0156-I-4_Remand Order.pdf	2023-12-13	PATRICK J. MCDONOUGH v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. PH-0752-17-0156-I-4, December 13, 2023	PH-0752-17-0156-I-4	NP
2,616	https://www.mspb.gov/decisions/nonprecedential/Day_Clayton_DC-0752-18-0675-I-1_Remand Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CLAYTON DAY, Appellant, v. DEPARTMENT OF LABOR, Agency.DOCKET NUMBER DC-0752-18-0675-I-1 DATE: December 13, 2023 THIS ORDER IS NONPRECEDENTIAL1 Clayton Day , Washington, D.C., pro se. Rolando Valdez , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision that dismissed the appeal of his removal under 5 U.S.C. § 7701, finding that he made a binding election seeking corrective action with the Office of Special Counsel (OSC) on the matter before filing his Board appeal. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). decision, and REMAND this case to the Washington Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2The appellant worked for the agency as a GS-12 Program Analyst. Initial Appeal File (IAF), Tab 1 at 2. On June 22, 2018, the agency issued the appellant a decision notice removing him pursuant to chapter 75 of Title 5 of the U.S. Code for various acts of alleged misconduct. Id. at 8-17. The effective date of the appellant’s removal was July 8, 2018. IAF, Tab 1 at 15, Tab 4 at 22. At the time that the agency issued the decision notice, the appellant had at least one whistleblower complaint pending with OSC. Day v. Department of Labor , MSPB Docket No. DC-1221-19-0009-W-1, Initial Appeal File (W-1 IAF), Tab 8 at 12-22. ¶3On July 2, 2018, the appellant provided OSC with a copy of his response to the proposed removal and removal decision notice. IAF, Tab 19 at 7. OSC then issued the appellant a preliminary determination on July 11, 2018, advising the appellant that it intended to close its investigation without further action. W-1 IAF, Tab 1 at 6-11. This determination letter outlined the appellant’s removal as one of the alleged retaliatory prohibited personnel practices in his complaint that OSC investigated. Id. at 8-10.2 The appellant proceeded to file his Board appeal on July 18, 2018, challenging his chapter 75 removal and raising the affirmative defense of reprisal for whistleblowing. IAF, Tab 1, Tab 9 at 1, 5. ¶4OSC closed its investigation into the appellant’s complaint on July 31, 2018, and provided him with his notice of the right to file an individual right of action (IRA) appeal with the Board. W-1 IAF, Tab 1 at 5. The appellant filed an IRA appeal on September 30, 2018, which included, inter alia, a claim that the agency removed him in reprisal for whistleblowing. W-1 IAF, Tab 1. Based on 2 The appellant responded to OSC’s preliminary determination letter on July 23, 2018, and did not refute the inclusion of his removal as part of his complaint. IAF, Tab 19 at 16-19. 2 his review of the appellant’s IRA appeal, the administrative judge issued a show cause order in the instant case outlining the statutory election of remedies provision for an appellant subjected to a Board appealable action that also alleges reprisal for whistleblowing. IAF, Tab 15 at 1-3. ¶5After the parties submitted argument and evidence on the issue, the administrative judge issued an initial decision dismissing the appellant’s appeal of his removal under 5 U.S.C. § 7701. IAF, Tabs 16, 19, 20, Initial Decision (ID). The administrative judge found that, after receiving notice of his election of remedies rights, the appellant made a knowing and informed binding election seeking corrective action with OSC on his removal prior to filing this appeal with the Board. ID at 1-7. Thus, the appellant could only proceed before the Board with an IRA appeal over his removal, which the administrative judge already docketed as a separate appeal. ID at 7; W-1 IAF, Tab 10 at 1. The appellant then timely filed a petition for review claiming that he never sought corrective action with OSC over his removal and seeking to move forward with the Board appeal of his chapter 75 removal under 5 U.S.C. § 7701. Petition for Review (PFR) File, Tab 1.3 DISCUSSION OF ARGUMENTS ON REVIEW ¶6An employee subjected to an action appealable to the Board and who alleges that the contested action was taken in reprisal for whistleblowing may elect to pursue a remedy through only one of the following processes: (1) an appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed under an applicable negotiated grievance procedure; or (3) a complaint seeking corrective action from OSC under 5 U.S.C. §§ 1211-1222. Edwards v. Department of the 3 The agency’s response to the appellant’s petition for review was filed 11 days beyond its deadline. 5 C.F.R. § 1201.114(e); PFR File, Tab 3, Tab 4 at 1. Because the agency failed to show good cause to excuse its untimely filing, we need not consider it on review. PFR File, Tab 5; see Kemp v. U.S. Postal Service , 44 M.S.P.R. 10, 14 (1990) (declining to consider the agency’s response to the petition for review because it was untimely filed without good cause shown); 5 C.F.R. § 1201.114(g). 3 Air Force, 120 M.S.P.R. 307, ¶ 12 (2013); see 5 U.S.C. § 7121(g); 5 C.F.R. § 1209.2(d)(1). ¶7If an employee first elects to timely file an appeal with the Board under 5 U.S.C. § 7701 after being subjected to an action under chapters 43 or 75 of Title 5 of the United States Code, the burden of proof rests with the agency to provide evidentiary support for its decision. See 5 U.S.C. § 7701(c)(1); Gonzalez v. Department of Homeland Security , 114 M.S.P.R. 318, ¶ 11 (2010). An employee may also raise affirmative defenses, such as a claim that the action appealable to the Board was taken in reprisal for whistleblowing. See 5 U.S.C. § 7701(c)(2)(B); Campbell v. Department of the Army , 123 M.S.P.R. 674, ¶ 11 (2016). This is because 5 U.S.C. § 7701(c)(2)(B) states that an action appealable to the Board may not be sustained if it is shown “that the decision was based on any prohibited personnel practice described in [5 U.S.C. §] 2302(b).” Section 2302(b)(8) prohibits reprisal against a whistleblower for making a protected disclosure, while section 2302(b)(9) prohibits reprisal for engaging in other protected activity. In contrast, if an employee who is subjected to an action otherwise appealable to the Board and claims whistleblower reprisal first elects to seek corrective action with OSC regarding the action, any subsequent appeal to the Board on the matter is limited to an IRA appeal, resolving only the claim of reprisal for whistleblowing activity. Corthell v. Department of Homeland Security, 123 M.S.P.R. 417, ¶ 16 (2016); 5 C.F.R. § 1209.2(c), (d)(2). ¶8The remedy first sought by an aggrieved employee is deemed an election of that procedure and precludes pursuit of the matter in another forum. Sherman v. Department of Homeland Security , 122 M.S.P.R. 644, ¶ 12 (2015). For adverse actions taken under chapters 43 and 75 that are appealable to the Board, an employee’s election of remedies under 5 U.S.C. § 7121(g) must be knowing and informed in order to be binding. Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶ 16 (2013). To be knowing and informed, an employee must have notice of the avenues of relief available and the preclusive effect the first4 filing has on the other remedial options. See id., ¶¶ 16 n.6, 17; 5 C.F.R. § 1201.21(d). Relevant to this case, 5 C.F.R. § 1201.21(d)(4) requires an agency to include in a decision notice to an employee on a matter appealable to the Board the effect an election to seek corrective action with OSC under 5 U.S.C. § 7121(g) has on an employee’s appeal rights before the Board. ¶9Here, the administrative judge erred when concluding that the appellant made a knowing and informed binding election seeking corrective action with OSC on his removal before he filed this Board appeal contesting his removal under 5 U.S.C. § 7701.4 ID at 5-7. The record reflects that the appellant did not receive adequate notice of the preclusive effect that challenging his removal through the OSC complaint process had on his other remedial options, particularly any future Board appeal. Specifically, while the removal decision notice correctly advised that the appellant could only seek relief on his removal in one forum, it did not outline that, if he first sought corrective action with OSC, than any subsequent Board appeal would be limited to an IRA appeal resolving only the whistleblower reprisal claim. IAF, Tab 1 at 15-17. Thus, the decision notice on the appellant’s removal issued by the agency did not comply with 5 C.F.R. § 1201.21(d)(4). There is no indication in the record that the appellant received notice through any other means. The absence of such notice prevented the appellant from making a knowing and informed binding election pursuant to Agoranos. See Corthell, 123 M.S.P.R. 417, ¶ 17 (finding that the appellant’s decision to seek corrective action with OSC did not preclude him from filing an adverse action appeal where the appellant did not receive notice of his appeal rights in a decision letter and there was no evidence that he received notice through any other means); Edwards, 120 M.S.P.R. 307, ¶ 13 (holding that, even if the appellant’s OSC complaint was filed before his Board appeal, any such election was not knowing and informed because the separation notice did not 4 The appellant’s removal is appealable to the Board under chapter 75. 5 U.S.C. §§ 7512(1), 7513(d). 5 inform him of the preclusive effect of first filing an OSC complaint). Such an error warrants remanding the case to the administrative judge for adjudication of the appellant’s appeal of his chapter 75 removal under 5 U.S.C. § 7701.5 See Savage v. Department of the Army , 122 M.S.P.R. 612, ¶¶ 18, 22 (2015) (holding that the appellant’s election to OSC was not binding because it was not knowing and informed, resulting in a remand to adjudicate her appeal as a chapter 75 action), overruled in part by Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25. ORDER ¶10For 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. 5 As previously noted, the appellant’s claim that his removal was in reprisal for whistleblowing was adjudicated by the Board in Day v. Department of Labor , MSPB Docket No. DC-1221-19-0009-W-1. W-1 IAF, Tab 23, Initial Decision. The administrative judge issued an initial decision in that matter, denying corrective action, on May 28, 2019. The initial decision became the final decision of the Board after neither party filed a petition for review. 6	Day_Clayton_DC-0752-18-0675-I-1_Remand Order.pdf	2023-12-13	CLAYTON DAY v. DEPARTMENT OF LABOR, MSPB Docket No. DC-0752-18-0675-I-1, December 13, 2023	DC-0752-18-0675-I-1	NP
2,617	https://www.mspb.gov/decisions/nonprecedential/Godby_William_D_CH-0714-21-0146-I-1__2571862.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WILLIAM D. GODBY, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER CH-0714-21-0146-I-1 DATE: December 13, 2023 THIS ORDER IS NONPRECEDENTIAL1 David Torchia , Cincinnati, Ohio, for the appellant. Nicholas Edward Kennedy , Akron, Ohio, for the agency. Matthew O. Kortjohn , Dayton, Ohio, 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 under 38 U.S.C. § 714. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the portion of the initial decision that sustained the charges and penalty, AFFIRM the portion 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). that found the appellant failed to prove his affirmative defenses, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. DISCUSSION OF ARGUMENTS ON REVIEW ¶2In an appeal of an adverse action taken under 38 U.S.C. § 714(a), the agency bears the burden of proving the charge by substantial evidence. 38 U.S.C. § 714(d)(2)(a). If the agency meets this standard, the Board may not mitigate the agency’s chosen penalty, but the Board is nonetheless required to review the penalty as part of the agency’s overall decision. Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1375-79 (Fed. Cir. 2020). In reviewing the penalty, the Board must consider and apply the Douglas factors.2 Connor v. Department of Veterans Affairs , 8 F.4th 1319, 1326 (Fed. Cir. 2021); Semenov v. Department of Veterans Affairs , 2023 MSPB 16, ¶ 49. Further, the agency’s decision may not be sustained if the appellant shows by preponderant evidence that the decision was the result of harmful procedural error, was based on a prohibited personnel practice described in 5 U.S.C. § 2302(b), or was not in accordance with law. 5 U.S.C. § 7701(c)(2); Semenov, 2023 MSPB 16, ¶ 23. ¶3In Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290, 1298-1301 (Fed. Cir. 2021), our reviewing court held that, although the Board uses the substantial evidence standard in reviewing an action under section 714, the agency itself must apply a preponderant evidence standard in determining whether the charges should be sustained. Id. at 1298-1301. Here, the deciding official sustained the proposed removal based on his finding that the charge and specifications were “supported by substantial evidence.” Initial Appeal File, Tab 12 at 12. Although the agency’s removal decision predated Rodriguez, the holding in Rodriguez applies to all pending cases, regardless of when the events 2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06), the Board articulated a nonexhaustive list of factors that are relevant in assessing the appropriate penalty in an adverse action under chapter 75.2 at issue took place. Semenov, 2023 MSPB 16, ¶ 22. Thus, the deciding official’s use of the substantial evidence standard was in error. ¶4Our reviewing court has determined that in a case such as this one, it is appropriate to vacate the portion of the initial decision that sustained the underlying action and remand for further proceedings. Bannister v. Department of Veterans Affairs , 26 F.4th 1340, 1343 (Fed. Cir. 2022); Bryant v. Department of Veterans Affairs , 26 F.4th 1344, 1348 (Fed. Cir. 2022). The court has further explained that the proceedings on remand will “[presumably] . . . include requiring the [agency’s] deciding official to determine whether the evidence to each of the charges against [the appellant] satisfied the preponderance of the evidence standard of proof.” Rodriguez, 8 F.4th at 1301; see also Bannister , 26 F.4th 1340 at 1343 (same); Bryant, 26 F.4th at 1347 (same). ¶5Accordingly, we vacate the portion of the initial decision that sustained the charges and penalty and remand the case to the regional office.3 On remand, the administrative judge should order the agency to provide evidence and argument as to whether, based on the information that was available to the deciding official and the appellant at the time of the decision, the deciding official would have determined that the appellant’s proposed removal was supported by a preponderance of the evidence. The agency’s pleading should specifically address any relevant Douglas factors. See Connor, 8 F.4th at 1326. The appellant should be provided an opportunity to respond to the agency’s submission, and the administrative judge may conduct a supplemental hearing if needed. Based on the fully developed record, the administrative judge should determine whether the agency’s failure to apply the preponderant evidence standard in the first instance was harmful error under 5 U.S.C. § 7701(c)(2)(B). See Semenov, 2023 MSPB 16, ¶ 24. If the administrative judge finds that the agency’s error was not harmful, she should make a new finding, based on the 3 It is unnecessary at this stage to remand the case to the agency. See Semenov, 2023 MSPB 16, ¶ 22 n.5. 3 fully developed record, as to whether the agency’s action is supported by substantial evidence.4 ¶6The appellant has not contested the administrative judge’s finding that he failed to prove his affirmative defenses of whistleblowing retaliation, race discrimination, other alleged harmful errors, and violation of his First Amendment rights, and we discern no error in those findings. Accordingly, we affirm the portion of initial decision concerning those defenses. See Bannister 26 F.4th at 1343-44; Bryant, 26 F.4th at 1348. ORDER ¶7For 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. 4 If the administrative judge finds that the charges are supported by substantial evidence, but also finds that (1) the agency did not consider the relevant Douglas factors; or (2) that its chosen penalty is unreasonable, she should remand the case to the agency for a new penalty determination. Connor, 8 F.4th at 1326-27 (citing Brenner v. Department of Veterans Affairs , 990 F.3d 1313, 1325 (Fed Cir. 2021)); Semenov, 2023 MSPB 16, ¶ 49. 4	Godby_William_D_CH-0714-21-0146-I-1__2571862.pdf	2023-12-13	WILLIAM D. GODBY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0714-21-0146-I-1, December 13, 2023	CH-0714-21-0146-I-1	NP
2,618	https://www.mspb.gov/decisions/nonprecedential/Cassio_Shawn_PH-0752-22-0028-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SHAWN CASSIO, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER PH-0752-22-0028-I-1 DATE: December 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Morgan Smith and Carson S Bailey , Dallas, Texas, for the appellant. Gabriel Tese and Robyn Peterson , Chambersburg, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The agency has filed a petition for review and the appellant has filed a cross petition for review of the initial decision, which found that the agency proved the unprofessional conduct charge and nexus, the appellant did not prove his claim of harmful procedural error, and the removal penalty should be mitigated to a 60-day suspension. On petition for review, the agency argues that its decision to remove 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the appellant is entitled to deference, removal is a reasonable penalty for the sustained misconduct, and a 60-day suspension is not a reasonable penalty. Petition for Review (PFR) File, Tab 3 at 11-21. In his cross petition for review, the appellant argues that the administrative judge erred in sustaining specifications (b) and (d) and the unprofessional conduct charge, and she wrongfully evaluated his affirmative defense of harmful procedural error. PFR File, Tab 7 at 7-17. Generally, we grant petitions such as these only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that neither party has established any basis under section 1201.115 for granting the petition or cross petition for review. Therefore, we DENY the petition for review and the cross petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). DISCUSSION OF ARGUMENTS ON REVIEW ¶2For the first time on petition for review, the appellant asserts that the agency must prove unprofessional conduct and a toxic work environment to sustain specification (b), and it must prove unprofessional conduct and “Intimidation/Bullying” to sustain specification (d). PFR File, Tab 7 at 12-13; Initial Appeal File (IAF), Tab 9 at 84-86. The Board will not generally consider an argument raised for the first time in a petition for review absent a showing that2 it is based on new and material evidence not previously available despite the party’s due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). The appellant has not made such a showing. However, even if we consider this argument, we find that a different outcome is not warranted. ¶3A charge usually has two parts (1) a name or label that generally characterizes the misconduct, and (2) a narrative description of the actions that constitute the misconduct. Otero v. U.S. Postal Service , 73 M.S.P.R. 198, 203 (1997). Here, the agency charged the appellant with unprofessional conduct, and it set forth a narrative description of the alleged misconduct in specifications (a)-(d).2 IAF, Tab 9 at 84-86. The agency’s decision to use additional terms at the beginning of the narrative in specifications (b) and (d), such as “Toxic Work Environment” and “Intimidation/Bullying,” respectively, does not impose an additional proof requirement on the agency. To the contrary, these terms are duplicative of some of the allegations contained in specifications (b) and (d), respectively. Moreover, the appellant does not dispute on review that he had a profane outburst in November 2020, as alleged in specification (b), or that he discouraged subordinates from reporting issues to management officials, as alleged in specification (d). We have considered the appellant’s other arguments relating to the charge and specifications, but we find them unpersuasive. We affirm the administrative judge’s decision to sustain the unprofessional conduct charge based on her decision to sustain specifications (b) and (d). IAF, Tab 22, Initial Decision (ID) at 7-16; see, e.g., Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (finding that, when more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge). 2 Neither party challenges the administrative judge’s conclusion that the agency did not prove specifications (a) and (c), and we affirm this conclusion. 3 ¶4We have considered the appellant’s arguments regarding the administrative judge’s analysis of his harmful procedural error claims, but we find them unpersuasive for the reasons described in the initial decision. ID at 16-17; PFR File, Tab 7 at 16-17. ¶5In its petition for review, the agency contends that its removal penalty is entitled to deference and is reasonable. When, as here, the agency’s charge is sustained, but some of the underlying specifications are not sustained, the agency’s penalty determination is entitled to deference and only should be reviewed to determine whether it is within the parameters of reasonableness. Payne v. U.S. Postal Service , 72 M.S.P.R. 646, 650 (1996). If the agency’s penalty is not reasonable, the Board will mitigate only to the extent necessary to bring it within the parameters of reasonableness, i.e., the Board will apply a maximum reasonable penalty standard. Id. at 651. An agency’s failure to sustain all of its supporting specifications may require, or contribute to, a finding that the agency’s penalty is not reasonable. Id. ¶6Such is the case here. Indeed, the administrative judge sustained only portions of two of the four specifications. Coupled with the discrepancies between the decision letter and the deciding official’s testimony on the relevant penalty factors, and the ample mitigating factors, which the administrative judge discussed at length in the initial decision, we find that the removal penalty is not entitled to deference and is not reasonable. We discern no error with the administrative judge’s decision to mitigate the removal penalty to a 60-day suspension for the reasons described in the initial decision. ¶7Finally, we deny the appellant’s petition to enforce the interim relief order because the Board’s regulations do not allow for such a petition. PFR File, Tab 9; Elder v. Department of the Air Force , 124 M.S.P.R. 12, ¶ 20 (2016). We may instead consider the appellant’s pleading as a challenge to the agency’s certification of compliance with the interim relief order. Id.; 5 C.F.R. § 1201.116(b). In this case, however, because the appellant is receiving a final4 Board order on the merits in his favor, the agency’s compliance with the interim relief order is a moot issue. Elder, 124 M.S.P.R. 12, ¶ 20; Cowart v. U.S. Postal Service, 117 M.S.P.R. 572, ¶ 6 & n.* (2012). ORDER ¶8We ORDER the agency to cancel the removal action, substitute in its place a 60-day suspension, and restore the appellant to his Ammunition Operations Supervisor position. 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. ¶9We 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. ¶10We 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). ¶11No 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 not5 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). ¶12For 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 RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.6 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at7 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,8 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 115-195,9 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 132 Stat. 1510. 10 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.11 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.	Cassio_Shawn_PH-0752-22-0028-I-1__Final_Order.pdf	2023-12-12	SHAWN CASSIO v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-0752-22-0028-I-1, December 12, 2023	PH-0752-22-0028-I-1	NP
2,619	https://www.mspb.gov/decisions/nonprecedential/Price_Gregory_DC-0752-22-0192-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD GREGORY PRICE, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DC-0752-22-0192-I-1 DATE: December 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Justin Prato , Esquire, San Diego, California, for the appellant. Stephen Coutant , Esquire, Honolulu, Hawaii, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which sustained his removal. For the reasons discussed below, we GRANT the appellant's petition for review and MITIGATE the penalty to a 5-day suspension. ¶2On review, the appellant argues that the administrative judge erred in deferring to the deciding official’s penalty determination, which relied on a prior 7-day suspension, imposed by a different employing agency, that has since been 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 removed from the appellant’s record pursuant to a settlement agreement in a separate proceeding.2 ¶3We agree. The Board’s policy is to not consider prior discipline that has been overturned at the time of Board review. See Jones v. U.S. Postal Service , 110 M.S.P.R. 674, ¶ 7 (2009) (citing U.S. Postal Service v. Gregory , 534 U.S. 1, 10 (2001) (citing Jones v. Department of the Air Force , 24 M.S.P.R. 429, 431 (1984))); see also Norris v. Securities and Exchange Commission , 675 F.3d 1349, 1355-57 (Fed. Cir. 2012) (holding that, in assessing whether the penalty was reasonable, the Board must consider new, post -removal mitigation evidence that was not available to the agency). For example, in Franklin v. Department of Justice, 71 M.S.P.R. 583 (1996), the agency had already removed the appellant when the Board issued a decision reversing his previous demotion and suspension. Id. at 587 n.1. The administrative judge in the removal appeal mitigated the penalty to a 30-day suspension, and on review, the Board found that the administrative judge had properly considered the appellant’s lack of prior discipline as a mitigating factor. Id. at 593. In Lopez v. Department of Justice , 55 M.S.P.R. 644 (1992), the administrative judge issued an initial decision sustaining the appellant’s 30-day suspension, relying in part on the appellant’s prior disciplinary record, which at that time included a 14-day suspension. Five years later, the agency cancelled the 14-day suspension after an agency complaint officer determined that it was the result of “retaliation discrimination,” and the appellant promptly filed a petition for review. The Board found good cause for the untimely filing, granted the appellant’s petition, and reduced the 30-day suspension to 15 days based on the modified record. Id. at 646-47; see Rush v. Department of the Air Force , 69 M.S.P.R. 416 (1996) (following the initial decision sustaining the appellant’s removal, the agency complied with an 2 The appellant does not dispute the charge on review. We have considered the appellant’s contention that the agency denied him due process by allegedly relying on uncharged conduct, but we agree with the administrative judge that the appellant did not establish that defense. 3 arbitration decision cancelling a 2-week suspension it had relied on as an aggravating factor; the Board found good cause for the untimely filing of the appellant’s petition for review but concluded the removal penalty was still reasonable absent consideration of the cancelled prior discipline); cf. Lindo v. U.S. Postal Service , 909 F.2d 1494 (Fed. Cir. 1990) (nonprecedential) (remanding for the Board to reassess the removal penalty in light of two arbitrator decisions, issued during the pendency of the appeal, which reversed a prior 7-day suspension and reduced a prior 14-day suspension to a 7-day suspension). Accordingly, we review the agency’s penalty determination based on the modified record.3 In this case, the agency has already indicated the maximum penalty it would have imposed had it not considered the appellant’s disciplinary record as an aggravating factor. At the hearing, the deciding official explicitly testified that he would not have removed the appellant in the absence of his prior discipline. Hearing Recording, May 12, 2022 (testimony of deciding official). He explained that under the agency’s table of penalties, removal is within the range of penalties for a second offense of Failure to Comply with Instructions, whereas a first offense warrants at most a 5-day suspension. Id.; see Initial Appeal File, Tab 6 at 112, Tab 8 at 83-84. Given the deciding official’s testimony on this point, it is unnecessary to determine the maximum reasonable penalty for the sustained misconduct. Cf. Lachance v. Devall , 178 F.3d 1246, 1260 (Fed. Cir. 1999) (“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.”). Rather, in deference to the deciding official’s construal of the charge and his clearly expressed intent to abide by the agency’s table of penalties, we 3 We do not reach the question of whether it would have otherwise been appropriate for the deciding official to consider discipline imposed by a different employing agency. 4 mitigate the penalty to a 5-day suspension, which we find to be within the bounds of reasonableness. ¶4We ORDER the agency to replace the removal action with a 5-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. ¶5We 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. ¶6We 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). ¶7No 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). ¶8For 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 5 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 forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 8 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 9 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be 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.	Price_Gregory_DC-0752-22-0192-I-1__Final_Order.pdf	2023-12-12	GREGORY PRICE v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-22-0192-I-1, December 12, 2023	DC-0752-22-0192-I-1	NP
2,620	https://www.mspb.gov/decisions/nonprecedential/Neighoff_Charles_CH-0752-14-0365-B-4-Final Order.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHARLES V. NEIGHOFF, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER CH-0752 -14-0365- B-4 DATE: December 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 John J. Rigby , Esquire, Arlington, Virginia, for the appellant. Laurie K . Simonson , Esquire, Denver, Colorado, for the agency. Nicholas R. Hankey , 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 sustained his removal for failure to meet a condition of employment. On petition for review, the appellant disputes the administrative judge’s due process 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 require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outc ome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established 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 RIG HTS 2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. 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 i ssuance of the initial decision in this matter, the Board may have updated the notice 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, o n unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, yo u may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e- 5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by t he Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decisi on. 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 mus t 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 statutor y provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 neith er endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . ((SIGNATURE)) FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.	Neighoff_Charles_CH-0752-14-0365-B-4-Final Order.pdf	2023-12-12	null	CH-0752	NP
2,621	https://www.mspb.gov/decisions/nonprecedential/Ingram-Williams_Karen_L_SF-1221-16-0352-W-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KAREN L. INGRAM-WILLIAMS, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER SF-1221-16-0352-W-1 DATE: December 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Heather White , Esquire, Washington, D.C., for the appellant. Maya Soloway , Esquire, Los Angeles, California, 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 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; the initial decision is based on an erroneous interpretation of statute or regulation 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, except as MODIFIED. We MODIFY the initial decision to clarify that a performance improvement plan (PIP) may constitute a personnel action under the Whistleblower Protection Act (WPA) and that an agency action need not be “formal discipline” to constitute a covered personnel action. We further MODIFY the initial decision to find that the appellant’s supervisor had a strong motive to retaliate against her and that her second-level supervisor and the deciding official had some motive to retaliate against her. BACKGROUND ¶2Prior to her resignation, effective March 27, 2014, the appellant was employed as a Nurse Supervisor with the agency’s Long Beach Healthcare Service. Initial Appeal File (IAF), Tab 5 at 56. In a December 2015 complaint to the Office of Special Counsel (OSC) and in subsequent correspondence with OSC, the appellant alleged that, in retaliation for her 2012 disclosures regarding improper hiring and management practices by her first-level supervisor and inadequate patient care by a physician, her supervisor excluded her from the hiring process, placed her on a PIP without her knowledge, gave her an unsatisfactory midyear performance review, detailed her, demoted her, and proposed her removal, which the deciding official imposed. IAF, Tab 1 at 20-36.2 In letters dated March 3, 2016, OSC notified the appellant that it had terminated its inquiry into her allegations and informed her of her right to seek corrective action from the Board. Id. at 34-36. ¶3The appellant timely filed the instant IRA appeal, alleging that, in retaliation for her protected disclosures, the agency took the above actions against her, as reported to OSC, and that these actions forced her to resign.2 IAF, Tab 1 at 1-7, Tab 8 at 1-3, Tab 9 at 4-6. The appellant declined her option for a hearing. IAF, Tab 1 at 2. After notifying the parties of the applicable law and their respective burdens of proof, IAF, Tab 8, the administrative judge issued an initial decision finding Board jurisdiction over the appeal but denying the appellant’s request for corrective action, IAF, Tab 15, Initial Decision (ID). ¶4The appellant has filed a petition for review of the initial decision, the agency has responded in opposition, and the appellant has submitted a reply to the agency’s response. Petition for Review (PFR) File, Tabs 4, 6-7. DISCUSSION OF ARGUMENTS ON REVIEW ¶5The Board has jurisdiction over an IRA appeal based on whistleblower reprisal under the WPA, as amended by the Whistleblower Protection Enhancement Act of 2012 (WPEA), if the appellant has exhausted her administrative remedies before OSC and makes nonfrivolous allegations of the following: (1) she engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8), or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take, fail to take, or threaten to take a personnel action as defined by 5 U.S.C. § 2302(a).3 2 The deciding official imposed the proposed removal in a decision letter dated March 13, 2014, with an effective date of March 28, 2014, and the appellant resigned effective March 27, 2014. IAF, Tab 5 at 56-57, Tab 7 at 5. 3 Effective December 27, 2012, the WPEA expanded the grounds on which an appellant may file an IRA appeal with the Board. WPEA, Pub. L. No. 112-199, §§ 101(b)(1)(A), 202, 126 Stat. 1465, 1476; see Hooker v. Department of Veterans Affairs , 120 M.S.P.R.3 Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001); Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. § 2302(b)(8). After establishing the Board’s jurisdiction in an IRA appeal, the appellant then 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 a personnel action taken against her.4 Salerno, 123 M.S.P.R. 230, ¶ 5; see 5 U.S.C. § 1221(e)(1). If the appellant makes out a prima facie case, the agency is given an opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure or activity. 5 U.S.C. § 1221(e)(1)-(2); Salerno, 123 M.S.P.R. 230, ¶ 5. ¶6In the initial decision, the administrative judge found that the appellant established jurisdiction over her IRA appeal by exhausting her administrative remedies and by making the requisite nonfrivolous allegations. ID at 1, 12. She further found that the appellant made one protected disclosure that was a 629, ¶ 9 (2014). Prior to the WPEA’s enactment, an appellant could file an IRA appeal with the Board based on allegations of whistleblower reprisal under 5 U.S.C. § 2302(b)(8) only. See Wooten v. Department of Health and Human Services , 54 M.S.P.R. 143, 146 (1992), superseded by statute as stated in Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446, ¶ 5 (2014). Following the WPEA’s enactment, an appellant also may file an IRA appeal with the Board concerning alleged reprisal for protected activity as defined in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), and (D). 5 U.S.C. § 1221(a); Hooker, 120 M.S.P.R. 629, ¶ 9. The WPEA does not apply retroactively, and the date of the purported retaliation, not the disclosures, is dispositive in determining whether pre-WPEA or post -WPEA standards apply. See Hooker, 120 M.S.P.R. 629, ¶¶ 13, 15. In the instant case, several of the alleged retaliatory actions occurred before, and several occurred after, the effective date of the WPEA. Because the appellant’s allegations of whistleblower reprisal all arise under section 2302(b)(8), however, the WPEA did not provide her any additional appeal rights. Moreover, we find that the WPEA’s other amendments to the WPA do not affect the outcome in this appeal. See WPEA §§ 101(a)(1)-104, 114. Therefore, in considering the appellant’s claims, we need not differentiate between the alleged retaliation occurring prior to and after the WPEA’s effective date. We have also reviewed the other relevant legislation enacted since the filing of this appeal and find that it does not impact the outcome. 4 Preponderance of the evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). 4 contributing factor in her November 2012 detail, the proposed removal, and the removal action. ID at 12-16. The administrative judge determined, however, that several of the appellant’s disclosures were not protected and that the memorandum of counseling, the counseling program/PIP,5 and the midyear review were not covered personnel actions. Id. She also found that, although an involuntary resignation may constitute a constructive removal, which is a personnel action under the WPA, the appellant failed to establish that her resignation was involuntary. ID at 16-17. Although the administrative judge found that the appellant established her prima facie case of whistleblower reprisal, she determined that the agency showed by clear and convincing evidence that it would have taken the same personnel actions in the absence of the disclosure and thus denied corrective action. ID at 18-20. ¶7On review, the appellant argues that the administrative judge erred in finding that she made only one protected disclosure; that her resignation was voluntary; and that the agency met its burden of showing by clear and convincing evidence it would have taken the same personnel actions absent any protected disclosure. PFR File, Tab 4 at 13-20. In response to the agency’s opposition to her petition for review, the appellant reiterates these arguments and further argues that the administrative judge erred in finding that the counseling program/PIP and 5 On June 1, 2012, the appellant’s first-level supervisor presented her with a memorandum of counseling showing issues with her performance and placing her on a “Counseling Plan” to address deficiencies in her performance. IAF, Tab 13 at 12-15. According to the agency’s Acting Chief of Human Resources (HR Chief), there was some confusion about whether the appellant should have been placed on a counseling program (which is the appropriate improvement program for a Title 38 nonsupervisory employee) or on a PIP (which is the appropriate improvement program for a supervisory employee in an Executive Career Field position). IAF, Tab 11 at 60-61. Although the HR Chief stated that he informed the appellant’s supervisor that the appellant should be on a PIP, instead of a counseling program, he did not know if she informed the appellant of the need to change the counseling program to a PIP. Id. While there is no indication in the record that the agency took action to convert the counseling program to a PIP, the administrative judge and the parties referred to the June 1, 2012 “Counseling Plan” as a “counseling program/PIP.” 5 the midyear appraisal were not covered personnel actions under the WPA. PFR File, Tab 7. The administrative judge correctly found that the appellant made only one protected disclosure. ¶8A protected disclosure is a disclosure that an appellant reasonably believes evidences a violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(A); Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 18 (2013). A reasonable belief exists if a disinterested observer with knowledge of the essential facts known to, or readily ascertainable by, the appellant could reasonably conclude that the agency’s actions evince one of the types of wrongdoing listed in section 2302(b)(8)(A). Lachance v. White , 174 F.3d 1378, 1381 (Fed. Cir. 1999);6 Chavez, 120 M.S.P.R. 285, ¶ 18. The appellant need not prove that the matter disclosed actually established one of the listed types of wrongdoing; rather, she must show that the matter disclosed was one that a reasonable person in her position would have believed evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8)(A). Chavez, 120 M.S.P.R. 285, ¶ 18. ¶9In her correspondence with OSC, the appellant alleged that, in January or February 2012, she disclosed to her second-level supervisor that her supervisor was directly supervising her (supervisor’s) girlfriend, had hired her girlfriend’s daughter and friends over more qualified candidates, and had excluded the appellant from the hiring and interview process. IAF, Tab 1 at 20-21, 29. She also notified OSC that she disclosed to a supervising physician, her first- and 6 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals for the Federal Circuit on these types of whistleblower issues. However, pursuant to the All Circuit Review Act (Pub. L. No. 115-195, 132 Stat. 1510 (2017)), appellants may file petitions for judicial review of Board decisions in whistleblower reprisal cases with any circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B). Therefore, we must consider these issues with the view that the appellant may seek review of this decision before any appropriate court of appeal. 6 second-level supervisors, and the Office of the Inspector General that another physician had poor clinical practices that placed patients at risk. Id. at 21, 23. ¶10In the initial decision, the administrative judge found that the appellant’s first disclosure, that her supervisor was directly supervising her girlfriend, was not protected because, in actuality, the supervisor did not directly supervise her girlfriend. ID at 12. The administrative judge concluded that the chain of command was known to, or was reasonably ascertainable by, the appellant and that a disinterested observer could not reasonably conclude that this evinced one of the categories of wrongdoing specified in section 2302(b)(8)(A). Id. The administrative judge also found probative the fact that the appellant acknowledged in a September 2013 affidavit that she knew that her supervisor did not directly supervise her girlfriend but believed instead that her supervisor “directly affects” the girlfriend. Id. The administrative judge concluded that, even if the appellant believed that her supervisor “affected” her girlfriend’s employment, such a vague allegation was insufficient for a disinterested observer to conclude that there was wrongdoing. ID at 12-13. ¶11On review, the appellant argues that the administrative judge erred in relying on a September 2013 affidavit as evidence that the appellant knew that her supervisor did not directly supervise her girlfriend. PFR File, Tab 4 at 13-14, Tab 7 at 4-5. We agree that the appellant’s September 2013 affidavit is not dispositive on the question of what the appellant knew when she made the disclosures in 2012. However, the administrative judge did not rely solely on the appellant’s statement in the affidavit in finding that this first disclosure was not protected. Rather, as noted above, she also found that the fact that her supervisor did not directly supervise her girlfriend was information readily ascertainable by the appellant. ID at 12. The appellant has not challenged this finding on review, and we discern no basis to disturb it. Insofar as the appellant believed that the supervisor was able to “affect” her girlfriend’s employment, we agree with the administrative judge’s finding that this allegation of wrongdoing is too vague to7 constitute a protected disclosure because the appellant has not alleged with specificity that her supervisor gave her girlfriend preferential treatment. ID at 12-13; see Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶¶ 23-24 (2015); see also Rzucidlo v. Department of the Army , 101 M.S.P.R. 616, ¶ 13 (2006) (explaining that, to be protected, disclosures must be specific and detailed, not vague allegations of wrongdoing regarding broad or imprecise matters). ¶12The appellant also appears to argue that the administrative judge erred in finding that this disclosure was not protected because she alleged that her supervisor granted her girlfriend preferential treatment by, for example, hiring her girlfriend’s daughter and her friends over more qualified applicants. PFR File, Tab 4 at 14. The administrative judge found, however, that the disclosure regarding improper hiring practices was protected. ID at 13. Specifically, she found that a disinterested observer, with knowledge of the essential facts known to and readily ascertainable by the appellant, could reasonably conclude that hiring less qualified candidates who are friends or family members of a friend is, at a minimum, an abuse of authority and potentially a violation of a law, rule, or regulation. Id. We discern no basis to disturb this determination.7 ¶13In light of the foregoing, we agree with the administrative judge’s finding that the appellant established by preponderant evidence that she made one protected disclosure evidencing an abuse of discretion or a violation of law, rule, or regulation when, in January or February 2012, she informed her second-level supervisor that her first-level supervisor hired less-qualified candidates who were friends or family of her girlfriend over more qualified candidates. ID at 15. 7 The administrative judge concluded that the appellant’s disclosures that she was excluded from the interview process and that a physician had unspecified poor clinical practices were not protected. ID at 14-15. The appellant has not challenged these findings on review, PFR File, Tabs 4, 7, and we find no basis to disturb them. See Crosby v. U.S. Postal Servic e, 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). 8 The administrative judge correctly determined that the counseling program/PIP and midyear review are not personnel actions under the WPA, but we MODIFY the initial decision to clarify and supplement the analysis. ¶14As noted above, the WPA, as amended, prohibits an agency from taking, failing to take, or threatening to take a personnel action against an employee because of any protected disclosure. 5 U.S.C. § 2302(b)(8). A “personnel action” is defined in this context as, among other things, a disciplinary or corrective action, a detail or reassignment, or a performance evaluation under 5 U.S.C. chapter 43 or under Title 38. 5 U.S.C. § 2302(a)(2)(A). ¶15In the instant case, the administrative judge found that the appellant’s detail, proposed removal, and removal constituted personnel actions within the meaning of the WPA.8 ID at 15-16. She further found, however, that the memorandum of counseling, counseling program, PIP, and midyear review were not “formal discipline” and, therefore, did not constitute personnel actions under the WPA. ID at 16. On review, the appellant argues that the administrative judge erred in finding that the counseling program/PIP and midyear review were not covered personnel actions. PFR File, Tab 7 at 6-7. ¶16As the appellant correctly points out on review, the Board has held that a PIP and equivalent opportunity-to-improve programs involve a threatened personnel action, such as a reduction in grade or removal, and thus are personnel actions under the WPA. Harris v. Department of Transp ortation, 96 M.S.P.R. 487, ¶ 7 (2004); Gonzales v. Department of Housing and Urban Development , 64 M.S.P.R. 314, 319 (1994). Therefore, we modify the initial decision to clarify that a PIP may constitute a personnel action under 5 U.S.C. § 2302(a)(2)(A). ID at 16. Further, we modify the initial decision to clarify that an agency action need not constitute “formal discipline” to be deemed a personnel action under the WPA. See 5 U.S.C. § 2302(a)(2)(A). Nonetheless, as discussed below, we find 8 The administrative judge also found that the appellant established that her protected disclosures were a contributing factor in these personnel actions by virtue of the knowledge/timing test. ID at 15-16. The parties do not challenge this finding on review, and we discern no basis to disturb it. See Crosby, 74 M.S.P.R. at 105-06. 9 that the appellant was not placed on a covered PIP or an equivalent program and agree with the administrative judge’s finding that, under the circumstances present here, the counseling program/PIP and midyear review are not personnel actions under the WPA. ¶17In King v. Department of Health and Human Services , 133 F.3d 1450, 1452-53 (Fed. Cir. 1998), the U.S. Court of Appeals for the Federal Circuit held that, unlike a performance evaluation, a progress report is not a personnel action under the WPA. See 5 U.S.C. § 2302(a)(2)(A)(viii). The court explained that not every agency action is a personnel action under the WPA and that, to constitute a personnel action, an action must have practical consequences for an employee. King, 133 F.3d at 1453. In distinguishing a progress report from a performance evaluation, the court found that “a performance evaluation is formal, judgmental, consequential, and retrospective, while a progress report is informal, collaborative, non-consequential, and somewhat prospective in nature, providing an opportunity for future improvement.” Id. at 1452. Thus, the court explained, “while a performance evaluation judges the quality of past work, a progress report gives an employer the chance to communicate with and guide the future performance of its employees by clarifying how well each employee has been meeting existing goals during a performance period to date.” Id. ¶18Here, we find that the appellant’s midyear review is akin to the progress review addressed in King. During her midyear review meeting, the appellant’s supervisor provided her a progress review indicating that her performance needed improvement to be fully successful or better in fiscal year 2012 and also provided a memorandum of counseling, which identified performance issues and set forth her expectations. IAF, Tab 11 at 111, Tab 13 at 12-15. The appellant did not receive an official rating during her midyear review, and the documents given to her did not reference any disciplinary or corrective action. Id. For these reasons, the midyear review, like the progress report in King, was an informal and prospective attempt to improve the appellant’s future performance, did not have10 practical consequences for her, and was not a personnel action. See King, 133 F.3d at 1452-53. ¶19As noted above, the Board has found that a PIP and equivalent opportunity-to-improve programs are personnel actions under the WPA because they constitute a threat of a personnel action. Gonzales, 64 M.S.P.R. at 319; see Harris, 96 M.S.P.R. 487, ¶ 7. However, Congress did not intend for the WPA to create an IRA appeal for every interim comment made in the workplace, written or otherwise, about the need for improvement, and not all general statements setting forth performance expectations and the consequences of failing to meet those expectations or counseling measures directed at particular employees constitute threats to take a personnel action. Koch v. Securities and Exchange Commission, 48 F. App’x 778, 787 (Fed. Cir. 2002);9 see King, 133 F.3d at 1453. The line between a counseling measure and a threat is not a bright one, and the distinction between the two is very fact dependent. Koch, 48 F. App’x at 787. ¶20Here, as noted above, there is an outstanding question about whether the appellant should have been placed on a counseling program or a PIP and about whether the agency converted the counseling program to a PIP. IAF, Tab 11 at 61. Nonetheless, the nature of the action determines the Board’s jurisdiction, not the agency’s characterization of it. Czarkowski v. Department of the Navy , 87 M.S.P.R. 107, ¶ 20 (2000). Therefore, even if the improvement program was not a “PIP,” it still may constitute a personnel action under the WPA. Id. ¶21Regulations promulgated by the Office of Personnel Management provide that a tenured Federal employee is entitled to a reasonable opportunity to demonstrate acceptable performance pursuant to 5 C.F.R. § 432.104 before an agency may propose her removal or a reduction in grade based on unacceptable performance. 5 C.F.R. § 432.105(a). Section 432.104 requires, among other things, that the agency notify the employee of the critical elements for which her 9 The Board may rely on an unpublished Federal Circuit decision when, as here, it finds the court’s reasoning persuasive. Mauldin v. U.S. Postal Service , 115 M.S.P.R. 513, ¶ 12 (2011).11 performance is unacceptable, identify the standards that must be attained to demonstrate acceptable performance, and inform her that, unless her performance in the critical element improves and is sustained at an acceptable level, she may be reduced in grade or removed. 5 C.F.R. § 432.104. Citing this section, the Board has held that a PIP, by definition, involves a threatened personnel action— namely a reduction in grade or a removal—and, therefore, is a covered personnel action. Gonzales, 64 M.S.P.R. at 319. ¶22In the instant case, the appellant’s supervisor gave her a memorandum of counseling titled “Counseling Program [ ] May 2012,” which contained a list of “issues” with her performance, such as competencies that had not been updated or information that had not been secured on specific dates. IAF, Tab 13 at 12-15. Each issue was accompanied by a “Qualification Standard,” such as, for example, “[i]ntegrity,” “[q]uality of [c]are,” and “[p]atient safety.” Id. Some of the issues were accompanied by an “Expectation,” such as “[c]onversations are professional” and “[c]onfidential information is secured.” Id. At the end of the memorandum, the appellant and her supervisor signed beneath the following statement: “We have reviewed each issue and the expectation is that you will communicate to me how you will rectify each deficiency. This will be incorporated into the Counseling Plan that I am placing you on and I will continue to be available to assist as it is imperative that you correct the issues identified.” Id. at 15. According to the appellant’s supervisor, she and the appellant agreed to meet weekly; however, because the supervisor refused to let the appellant record the meetings or bring a witness from human resources, the appellant did not attend any meetings after June 8, 2012. IAF, Tab 11 at 51. ¶23Unlike a reasonable opportunity to demonstrate acceptable performance pursuant to 5 C.F.R. § 432.104, the counseling program at issue here did not inform the appellant that she was failing in a critical element, identify standards that must be attained, or threaten her with a reduction in grade or removal should she fail to achieve and maintain acceptable performance. IAF, Tab 13 at 12-15.12 Likewise, although the appellant’s supervisor advised her that her performance needed to improve to be considered fully successful or better for fiscal year 2012 and informed her of specific areas that needed improvement, she did not threaten any disciplinary action. Id. at 15; IAF, Tab 11 at 50-51, 111. Rather, as in other cases wherein the Board has found no threatened personnel action, the agency here merely counseled the appellant regarding performance deficiencies and advised her of the need for improvement. See 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), disagreed with on other grounds in Delgado v. Merit Systems Protection Board , 880 F.3d 913 (7th Cir. 2018); Special Counsel v. Spears , 75 M.S.P.R. 639, 669 (1997) (finding that a “mid point” counseling memorandum informing an employee that she was failing two of her critical elements was part of a process designed to assist her to bring her performance to an acceptable level, rather than a threatened personnel action). Therefore, we find that the counseling program and related documents here do not constitute the threat of a personnel action under the WPA. The administrative judge correctly determined that the appellant’s resignation was voluntary and did not constitute a personnel action under the WPA. ¶24Although a decision to resign or retire is presumed to be voluntary and outside the Board’s jurisdiction, Putnam v. Department of Homeland Security , 121 M.S.P.R. 532, ¶ 21 (2014), an involuntary resignation or retirement may constitute an appealable personnel action in an IRA appeal, Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677, ¶ 12 (2014). An appellant may overcome the presumption of voluntariness by showing that her resignation was the product of misinformation or deception by the agency, or of coercive acts by the agency, such as intolerable working conditions or the unjustified threat of an adverse action. SanSoucie v. Department of Agriculture , 116 M.S.P.R. 149,13 ¶ 14 (2011). To establish involuntariness on the basis of coercion, an appellant must show that the agency effectively imposed the terms of her resignation, that she had no realistic alternative but to resign, and that her resignation was the result of improper acts by the agency. Staats v. U.S. Postal Service , 99 F.3d 1120, 1124 (Fed. Cir. 1996). ¶25Here, the administrative judge found that the appellant’s general allegations that her supervisor subjected her to a hostile work environment were insufficient to establish that the agency coerced her resignation or that the agency knew that the reasons for its action could not be substantiated. ID at 17. On review, the appellant challenges these findings, arguing that she was forced to resign after enduring “several years of retaliatory and baseless performance-based personnel actions” and a work environment that was so “intolerable” that she could not attend meetings with her supervisor “for fear of retaliation.” PFR File, Tab 4 at 15. We find, however, that these vague and unsupported contentions on review provide no basis to disturb the administrative judge’s well-reasoned finding. See Crosby, 74 M.S.P.R. at 105-06. In any event, we have reviewed the record and agree with the administrative judge’s finding that, although the appellant expressed feelings of stress and believed that she was being treated unfairly, she failed to show that she was subjected to intolerable working conditions that would have compelled a reasonable person in her position to resign. ID at 17; see Miller v. Department of Defense , 85 M.S.P.R. 310, ¶ 32 (2000) (holding that an employee is not guaranteed a stress-free working environment and that dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions generally are not so intolerable as to compel a reasonable person to resign). ¶26The administrative judge also found that the appellant did not identify any misinformation or deception on the agency’s part that would establish that her resignation was involuntary. ID at 17. On review, the appellant challenges this finding, arguing that her supervisor’s actions “demonstrated an element of14 deception in failing to notify Appellant of any performance deficiencies.” PFR File, Tab 4 at 15 . Even if this assertion were true, it would provide no basis to find that the appellant’s resignation was involuntary based on deception. A resignation will be considered involuntary if an employee materially relies on an agency’s misinformation or deception to her detriment. Morrison v. Department of the Navy, 122 M.S.P.R. 205, ¶ 7 (2015). Here, however, the appellant has not alleged, and the record does not reflect, that she relied on any misinformation from the agency or deceptive act on the part of the agency in deciding to submit her resignation. Therefore, we agree with the administrative judge that the appellant has not shown that her resignation was involuntary based on deception or misinformation. ¶27The appellant further argues on review that the administrative judge “erred in finding that Appellant’s removal was not involuntary because ‘[she] was offered as settlement a Last Chance Agreement in lieu of removal, which she rejected.” ID at 17; PFR File, Tab 7 at 6. The appellant, however, misapprehends the administrative judge’s finding. In the initial decision, the administrative judge noted that the appellant was offered a last chance settlement agreement in lieu of removal but found that the appellant’s choice between unpleasant alternatives did not make her decision to resign involuntary. ID at 17. We agree. ¶28The doctrine of coerced involuntariness is “a narrow one” and does not apply if the employee resigns or retires because she “does not want to accept [measures] that the agency is authorized to adopt, even if those measures make continuation in the job so unpleasant . . . that [s]he feels that [s]he has no realistic option but to leave.” Staats, 99 F.3d at 1124. “[T]he fact than an employee is faced with an unpleasant situation or that [her] choice is limited to two unattractive options does not make [her] decision any less voluntary.” Id. Here, it appears that the appellant was faced with one of several unpleasant alternatives —namely, being removed from her position, accepting or negotiating the agency’s proffered last chance settlement agreement, or resigning—and she chose to resign.15 As the administrative judge correctly determined, the appellant’s choice between these unpleasant alternatives did not render her ultimate choice to resign involuntary. Id.; Lawson v. U.S. Postal Service , 68 M.S.P.R. 345, 350 (1995) (finding that the fact that the appellant’s choice was limited to accepting an assignment, facing an adverse action for refusing the assignment, or applying for retirement did not render his ultimate decision to retire involuntary). ¶29Finally, the administrative judge found that the appellant failed to show that her resignation was involuntary on the basis of the unjustified threat of removal. ID at 17. On review, the appellant appears to challenge this finding, arguing that the agency subjected her to “baseless performance-based personnel actions.” PFR File, Tab 4 at 15. When an employee is faced with the choice between resigning or being subjected to an adverse action, the resulting resignation cannot be considered involuntary unless she shows that the agency lacked reasonable grounds for taking or threatening to take the adverse action. See Terban v. Department of Energy , 216 F.3d 1021, 1026 (Fed. Cir. 2000). Here, the administrative judge found that the appellant’s mere disagreement with the agency’s reasons for its actions failed to show that the agency lacked reasonable grounds for taking an action. ID at 17. The appellant’s conclusory assertion on review that the performance -based actions were “baseless” provides no basis to disturb this finding. See Crosby, 74 M.S.P.R. at 105-06. The administrative judge correctly found that the agency proved by clear and convincing evidence that it would have detailed the appellant and sustained her proposed removal in the absence of her protected disclosures, but we MODIFY the initial decision to clarify and supplement the analysis. ¶30When, as here, an appellant shows by preponderant evidence that she made a protected disclosure and that the disclosure was a contributing factor in the agency’s decision to take a personnel action against her, the Board will order corrective action unless the agency shows by clear and convincing evidence that it16 would have taken the personnel action in the absence of the whistleblowing.10 5 U.S.C. § 1221(e)(2); Chavez, 120 M.S.P.R. 285, ¶ 28. In determining whether an agency has shown by clear and convincing evidence that it would have taken the personnel action absent the protected activity, 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 its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who did not engage in such protected activity, but who are otherwise similarly situated. Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 11; see also Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board does not view these factors as discrete elements, each of which the agency must prove by clear and convincing evidence, but rather weighs these factors together to determine whether the evidence is clear and convincing as a whole. Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 14 (2015). The Board must consider all the evidence, including evidence that detracts from the conclusion that the agency met its burden. Whitmore v. Department of Labor , 680 F.3d 1353, 1368 (Fed. Cir. 2012); Alarid, 122 M.S.P.R. 600, ¶ 14. ¶31As noted above, the first covered personnel action at issue in this appeal is the appellant’s detail. On November 14, 2012, the appellant’s supervisor temporarily assigned her to a nonsupervisory position in the Nursing Education Service “to complete special projects, pending review of [her] performance and how [she] discharged [her] duties.” IAF, Tab 7 at 19. The second personnel action at issue in this appeal is the removal action. On January 13, 2014, the appellant’s supervisor proposed her removal based on the following charges: (A) Failure to Perform Supervisory Duties (supported by 12 specifications); (B) Providing Inaccurate Information (supported by three specifications); 10 Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established. 5 C.F.R. § 1209.4(e).17 (C) Failure to Follow Instructions (supported by five specifications); (D) Careless Workmanship (supported by four specifications); and (E) Inappropriate Conduct (supported by two specifications). Id. at 8-13. On March 13, 2014, the deciding official imposed the removal, sustaining the charges and all but four of the specifications. Id. at 5-6. ¶32The administrative judge weighed the Carr factors and concluded that the agency met its burden of showing that it would have detailed and removed the appellant absent her protected disclosure. ID at 18-20. In reaching this conclusion, the administrative judge found that, although the appellant’s supervisor had “some motive” to retaliate against her and there was no evidence that the agency treated similarly situated nonwhistleblowers in a similar manner, the strength of the agency’s evidence in support of the detail and the removal outweighed the other factors. Id. She further found that the appellant failed to identify any motive to retaliate on the part of her second-level supervisor or the deciding official. ID at 18, 20. ¶33On review, the appellant argues that the administrative judge failed to consider countervailing evidence—namely, the fact that her alleged performance deficiencies arose immediately after her supervisor learned of her disclosures. PFR File, Tab 4 at 15-18. We disagree that the administrative judge failed to consider the chronology of events. To the contrary, as noted above, she found that the appellant established that her disclosures were a contributing factor in the personnel actions by virtue of the knowledge/timing test.11 ID at 15-16. Once the 11 On review, the appellant argues that the administrative judge erred in finding that her supervisor became aware of her disclosure regarding improper hiring in 2013. PFR File, Tab 4 at 17. The appellant asserts that this error is material because, contrary to the administrative judge’s finding, her “alleged performance problems did not predate her protected disclosure or [her supervisor’s] learning about her protected disclosure.” Id. Although the administrative judge noted that the appellant’s supervisor submitted a sworn declaration stating that she became aware of the appellant’s disclosure “when there was an EEO investigation into the matter, which would be sometime in 2013,” she nonetheless found that the disclosure was a contributing factor in the personnel actions. ID at 13, 15-16. Therefore, any error regarding the date the appellant’s supervisor learned of the appellant’s protected disclosure did not affect the appellant’s substantive18 burden shifts to the agency to show by clear and convincing evidence that it would have taken the same personnel actions in the absence of the disclosures, however, the temporal proximity between the disclosures and the personnel actions is not dispositive. Rather, as stated above, the Board generally weighs the Carr factors to determine whether the agency has met its burden by clear and convincing evidence. See Chavez, 120 M.S.P.R. 285, ¶ 28. ¶34The appellant also argues that the administrative judge erred in finding that the agency’s evidence in support of the removal action was strong because she received a fully successful rating on her detail and rebutted all of the charges in her reply to the proposed removal, and because most of the specifications in Charge D (careless workmanship) could not be true. PFR File, Tab 4 at 18-19, Tab 7 at 8 (citing IAF, Tab 11 at 230-40). We have considered these arguments but find that they provide no basis to disturb the administrative judge’s well-reasoned determination that the agency had strong evidence to support the removal action. ID at 18-20; see Ray v. Department of the Army , 97 M.S.P.R. 101, ¶ 28 (2004) (finding that, even though some specifications were not sustained, the agency had strong evidence to support its decision to remove the appellant when, among other things, several specifications involved providing false information and several specifications were supported by documentary evidence or sworn statements), aff’d, 176 F. App’x 110 (Fed. Cir. 2006) (Table). As noted in the initial decision, the agency premised the appellant’s removal on numerous instances of misconduct and provided supporting emails, reports of contact, timecard exceptions, schedules, and declarations signed under penalty of perjury. ID at 18-20; IAF, Tab 11 at 40-45, 47-57, 121-228. Moreover, even if we did not consider the specifications underlying Charge D, we find that the sustained specifications in Charges A, B, C, and E constitute strong evidence that rights. 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 reversing an initial decision). 19 the appellant committed serious misconduct as to warrant removal. IAF, Tab 7 at 8-11. ¶35The appellant next challenges the administrative judge’s findings that her supervisor’s motive to retaliate was outweighed by the strength of the agency’s evidence and that the deciding official and her second-level supervisor had no motive to retaliate. PFR File, Tab 4 at 19-20, Tab 7 at 8-9. Although the administrative judge found that the appellant’s supervisor had only “some motive” to retaliate, we modify the initial decision to find that she had a strong motive to retaliate based on the appellant’s protected disclosure accusing her of improper hiring practices. See Ayers, 123 M.S.P.R. 11, ¶ 29 (finding that, based on the appellant’s disclosure that her supervisor was harassing her, the appellant’s supervisor had a clear and strong motive to retaliate). Furthermore, we modify the initial decision to find that, although the appellant did not identify a motive on the part of her second -level supervisor, he may have had a retaliatory motive because he supervised the appellant’s supervisor and, therefore, the appellant’s criticisms of her reflected on his capacity as a manager. Id. In addition, we modify the initial decision to find that the strong motive to retaliate on the part of the appellant’s supervisor, the proposing official, may be imputed to the deciding official. See Chambers v. Department of the Interior , 116 M.S.P.R. 17, ¶ 58 (2011). However, even assuming that the deciding official and the second-level supervisor knew of the appellant’s disclosures, we find weak evidence of a retaliatory motive on their part.12 See Runstrom v. Department of Veterans 12 In a declaration signed under penalty of perjury, the deciding official attested that she had no knowledge of the appellant’s disclosures. IAF, Tab 11 at 108-09. Although the appellant’s second-level supervisor stated in a declaration signed under penalty of perjury that he did not recall that the appellant disclosed to him concerns regarding her supervisor’s improper hiring practices, id. at 42, the administrative judge found that his lack of recollection was insufficient to rebut the appellant’s more specific claim that she made the disclosures to him in January or February 2012, ID at 13. In any event, although the appellant’s second-level supervisor agreed with her supervisor’s decision to place her on a counseling program, id. at 43, and made two changes to the appellant’s temporary assignment, IAF, Tab 7 at 15, 17, he did not take or direct either of the personnel actions at issue in this appeal. 20 Affairs, 123 M.S.P.R. 169, ¶ 15 (2016). Further, there is not much of a professional motive to retaliate on the part of the agency. Robinson v. Department of Veterans Affairs , 923 F.3d 1004, 1019 (Fed. Cir. 2019). ¶36Regarding the third Carr factor, the administrative judge found no evidence showing that the agency took similar actions against similarly situated nonwhistleblowers. ID at 20. The parties do not challenge this finding on review. PFR File, Tabs 4, 6-7. Nonetheless, we have reviewed the record and agree that the agency has failed to provide any information or evidence regarding its treatment of similarly situated nonwhistleblowers for the purposes of a Carr-factor analysis. IAF, Tabs 5, 7, 11, 13; PFR File, Tab 6. Although the administrative judge did not explicitly state how the absence of any evidence regarding Carr factor three weighed into her Carr-factor analysis, she appeared to find that it weighed against the agency to some degree. ID at 20. We agree that, under the circumstances present here, the agency’s failure to produce any evidence regarding Carr factor three weighs slightly against it.13 See Whitmore, 680 F.3d at 1374 (stating that an agency is required to come forward with “all reasonably pertinent evidence relating to Carr factor three” and that “[f]ailure to do so may be at the agency’s peril”); see also Miller v. Department of Justice , 842 F.3d 1252, 1262 (Fed. Cir. 2016). 13 The appellant argues, for the first time on review, that the agency failed to rebut her assertions of disparate treatment. PFR File, Tab 4 at 20. In particular, she argues that she informed the deciding official in her reply to the proposed removal that “timecards are known to be a universal problem for all supervisors and that she was being held to a different standard and punished more harshly than other supervisors.” Id. Generally, the Board will not consider an argument raised for the first time on review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). Here, the appellant has provided no explanation for her failure to raise this argument below, and we find no reason to consider it for the first time on review. Even if we were to consider it, however, the appellant has failed to provide any information regarding the identity or whistleblower status of these alleged other supervisors, and we therefore find that her vague allegations would not alter our analysis of the Carr factors. 21 ¶37Nonetheless, we agree with the administrative judge that the strength of the agency’s evidence in support of the detail and the removal outweighs the other Carr factors. ID at 18-20. As noted in the initial decision, the counseling program/PIP review notes reflect numerous problems with the appellant’s performance. ID at 18; IAF, Tab 13 at 12-15. However, the appellant failed to make a good faith effort to improve her performance and refused to attend the counseling program meetings in June, July, or August 2012 because her supervisor did not allow her to record the meetings or have a human resources witness.14 IAF, Tab 11 at 92, 174-75. She has not alleged that she was entitled to record the meetings or to have a witness, nor has she alleged that she feared for her personal safety or another reasonable basis for her decision not to attend the meetings without a recording or a witness. Moreover, the memorandum informing her of the temporary assignment stated that her priority during the detail was to complete performance appraisals and proficiencies that were overdue, as well as proficiencies that were due in coming months. IAF, Tab 7 at 19. The appellant has not disputed the agency’s assertion that she was behind on these duties. Furthermore, as discussed above, the sustained specifications in Charges A, B, C, and E constitute strong evidence to support the agency’s removal action. IAF, Tab 7 at 8-11. ¶38Considering the record as a whole, we agree with the administrative judge’s finding that the agency has shown by clear and convincing evidence that it would have taken the same personnel actions in the absence of the appellant’s protected disclosure. ID at 18-20. 14 According to the appellant, she was on medical leave between September and November 2012. IAF, Tab 11 at 92.22 NOTICE OF APPEAL RIGHTS15 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: 15 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.23 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any24 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s25 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.16 The court of appeals must 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. 16 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 26 Contact information for the courts of appeals can be 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.27	Ingram-Williams_Karen_L_SF-1221-16-0352-W-1_Final Order.pdf	2023-12-12	null	SF-1221-16-0352-W-1	NP
2,622	https://www.mspb.gov/decisions/nonprecedential/Harris_Campbell_Denise_L_CH-0752-21-0458-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DENISE LAVETTE HARRIS CAMPBELL, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER CH-0752-21-0458-I-1 DATE: December 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Terri Blanchard , Esquire, Orland Park, Illinois, for the appellant. Russ Eisenstein , Esquire, and Pamela Langston-Cox , Esquire, Chicago, Illinois, 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 its removal action. For the reasons discussed below, we GRANT the agency’s petition for review, REVERSE the initial decision, and SUSTAIN the appellant’s removal. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). ¶2The following facts, as further detailed throughout this decision, are essentially undisputed. At all times relevant to this appeal, the appellant held the GS-13 position of Supervisory Revenue Officer for the Internal Revenue Service (IRS). Initial Appeal File (IAF), Tab 1 at 1. In this role, she and her subordinates provided technical guidance and support to field revenue officers regarding collection programs and activities. IAF, Tab 12 at 347. Hearing Transcript (HT) at 132-33 (testimony of the deciding official). ¶3The appellant has a goddaughter who is particularly relevant to the instant appeal. IAF, Tab 23, Initial Decision (ID) at 2; HT at 166 (testimony of the appellant). According to the appellant, the goddaughter’s mother died after a medical procedure in 1996, resulting in a $6,000,000 malpractice award and the creation of an associated trust to benefit the goddaughter. HT at 166-67 (testimony of the appellant). For many years, the goddaughter lived with her grandmother, who also served as trustee. Id. But in 2006, when the goddaughter was in eighth grade, she moved in with the appellant. Id. at 168. In 2011, the appellant also took over as trustee, following the death of the goddaughter’s grandmother. IAF, Tab 13 at 16-28. ¶4Eventually, the relationship between the appellant and her goddaughter frayed. According to the appellant, the goddaughter threatened to contact the IRS with allegations that the appellant was working as a paid tax preparer, which is prohibited for an agency employee, unless the appellant distributed more money from the trust. IAF, Tab 12 at 128; HT at 12-13 (testimony of Treasury Inspector General for Tax Administration (TIGTA) investigator), 165-66 (testimony of the appellant). The appellant contacted TIGTA to report her goddaughter’s threats in March 2015. IAF, Tab 12 at 128; HT at 12-13 (testimony of TIGTA investigator), 165-66 (testimony of the appellant). This led to a TIGTA investigation, which uncovered other potential wrongdoing related to the appellant’s taxes and health insurance benefits, and an IRS audit ensued. E.g., IAF, Tab 12 at 127-29.2 ¶5The IRS audit found that the appellant had understated her tax liabilities for 2013 and 2014 in a few ways, resulting in the appellant owing roughly $25,000 in back taxes and penalties.2 IAF, Tab 13 at 50-57. Most notably, it concluded that the appellant wrongly claimed her mother, goddaughter, and goddaughter’s son as dependents and wrongly claimed many thousands of dollars’ worth of deductions. Id. During the months that followed, the appellant filed a petition about her tax debt with the U.S. Tax Court (Tax Court), and she filed for bankruptcy. IAF, Tab 12 at 100, Tab 13 at 44-45. Eventually, the appellant settled her tax case for about $13,500 in back taxes and penalties.3 IAF, Tab 12 at 98-99, 119-21. ¶6Meanwhile, the TIGTA investigator separately concluded that the appellant had improperly claimed her goddaughter and her goddaughter’s son as her children for purposes of Federal employee health benefits. E.g., id. at 128-29. He determined that this resulted in more than $50,000 in erroneous benefits paid by the insurer and more than $10,000 in erroneous premiums paid by the agency. Id. ¶7In March 2021, after the conclusion of her Tax Court case, the agency proposed the appellant’s removal based on three charges, each comprised of two specifications. Id. at 89-95. Broadly speaking, the first charge alleged that the appellant willfully understated her tax liability or at least failed to accurately state her tax liability and ensure the accuracy of her tax returns for 2013 and 2014. Id. at 89-90. The second charge alleged that she failed to timely pay her taxes or claimed a refund for which she was not entitled in 2013 and 2014. Id. at 90. And the third charge alleged that she claimed Federal employee health insurance benefits to which she was not entitled. Id. The appellant responded to the 2 The IRS attributed the penalties to its determination that all or part of the appellant’s underpayments were due to fraud. IAF, Tab 13 at 50, 53-54 (referencing 26 U.S.C. § 6663). 3 Without further explanation, the Tax Court decision stated that, pursuant to the settlement agreement, the appellant had income tax deficiencies of $4,089 for 2013, and $7,819 for 2014, along with a $1,563.80 penalty for 2014 under a provision unrelated to fraud. IAF, Tab 12 at 98 (referencing 26 U.S.C. § 6662(a)).3 proposal, id. at 31-48, but the deciding official sustained all the charges and specifications, and he removed the appellant from service, id. at 13-18. ¶8The appellant filed the instant appeal to challenge her removal. IAF, Tab 1. After developing the record and holding the requested hearing, the administrative judge reversed the action. ID at 45. He first rejected the agency’s arguments that collateral estoppel should apply to the Tax Court decision. ID at 5-8. He next found that the associated settlement agreement was not entitled to any evidentiary weight. ID at 9-14. The administrative judge then analyzed each of the agency’s charges and found them all unproven. ID at 14-44. Finally, the administrative judge ordered that the agency provide interim relief to the appellant should either party file a petition for review. ID at 46. ¶9The agency has filed a petition for review, along with certification that it provided the appellant with interim relief. Petition for Review (PFR) File, Tab 3. After proceeding pro se below, the appellant has appointed an attorney and filed a response. PFR File, Tab 6. The agency has replied. PFR File, Tab 11. The administrative judge erred in discounting or overlooking certain evidence. ¶10Before we turn to the specific charges underlying the appellant’s removal, we make the following observations about the evidence of record, which is a major point of dispute. The agency in this case is also the entity responsible for administering the tax code. E.g., HT at 163 (testimony of the deciding official). Consequently, when the agency conducted its years-long investigation of the appellant, it was investigating her conduct as both an employee and a taxpayer. The resulting investigatory file is evidence in this appeal. IAF, Tab 12 at 126-329. This includes the TIGTA investigator’s interview notes with various individuals such as tax specialists, id. at 138-39, 150-51, 154, the revenue agent that audited the appellant’s taxes, id. at 299-300, 306-08, 313, and the appellant herself, id. at 324-29. ¶11Among other things, the interview notes with the revenue agent, from 2016, indicate that the appellant admitted to the revenue agent that she should not have4 claimed her goddaughter and her goddaughter’s son as dependents on her tax returns. Id. at 308. The notes were drafted by the investigator, but they indicate that the revenue agent was under oath and that the revenue agent reviewed the interview notes for accuracy. Id. at 308-09. ¶12In 2017, this same revenue agent completed the IRS audit and documented the associated findings in a “Form 4549-A, Income Tax Examination Changes.” Id. at 314-15. Consistent with that report, the IRS sent the appellant a detailed letter, assessing the appellant with the tax deficiency and penalty totaling about $25,000. IAF, Tab 13 at 50-67. ¶13Soon thereafter, the record shows that the appellant filed a petition with the Tax Court, along with a letter disputing the finding of the IRS audit. Id. at 44-49. Although the letter provides some assertions about her living situation and the propriety of her tax filings, there is nothing in the record to suggest that the appellant attached other support, such as receipts, financial statements, or other such documentation. The appellant separately filed for bankruptcy in the months that followed. IAF, Tab 12 at 113. ¶14In 2018, the agency Office of Chief Counsel attorney (OCC attorney) assigned to the appellant’s tax case sent her a letter, explaining pertinent provisions of the tax code and asking the appellant to submit evidence that might support some of the disallowed exemptions and deductions. IAF, Tab 13 at 84-89. After this, she and the appellant met. HT at 91-94 (testimony of the OCC attorney). According to hearing testimony from the OCC attorney, the appellant did not bring any documents to support the disallowed exemptions and deductions she had claimed on her taxes. Id. at 95. The OCC attorney further testified that she and the appellant worked to come up with a settlement agreement to resolve the tax dispute. Id. at 94-98. However, because the appellant divulged that she had filed for bankruptcy, the OCC attorney indicated that the settlement agreement could not be signed and completed at that time. Id. at 97-98. Nevertheless, it is undisputed that the appellant did eventually settle the5 matter. IAF, Tab 12 at 98-99. Although the settlement agreement is unsigned, it is attached to the appellant’s own filings in her bankruptcy proceedings, which the agency submitted in this appeal. Id. at 117-21. ¶15Also in 2018, the agency generated a new “Form 4549-A, Income Tax Examination Changes” report, which seems to reflect the parties’ settlement agreement. It is signed by the office of “Appeals.” Id. at 330-45. The amounts owed, as reflected in that document, match the amounts identified in the eventual Tax Court decision. Id. at 98-99, 331. ¶16Turning back to the TIGTA interview notes, one memorializes an interview with the appellant in 2019. Id. at 324-29. This interview occurred after the appellant filed her petition with the Tax Court and engaged in the settlement discussions but before the Tax Court decision and the agency’s proposal to remove her. According to these TIGTA interview notes, the appellant described pertinent details about some of her finances and living situations. Id. at 324-29. Among other things, according to the interview notes, the appellant “generously estimated” that she spent $27,000 a year on her goddaughter but that the goddaughter received $31,000 a year from her trust. Id. at 325. The appellant is further described as denying some other alleged wrongdoing, id. at 324, but admitting that it was “technically illegal” for her to claim the goddaughter and the goddaughter’s son as dependents, id. at 326. On the other hand, the appellant also described to the TIGTA investigator feeling as if she deserved many of the exemptions and deductions she had claimed for reasons that include the nature of her relationships with the claimed dependents. Id. at 335-39. This interview summary also describes how the appellant had been placed under oath for the interviews, and how she reviewed the interview notes before agreeing that they were accurate. Id. at 324, 329. ¶17In December 2020, the Tax Court issued its decision, recognizing that the appellant settled her tax case. IAF, Tab 12 at 98-99, 119-21. The agency proposed the appellant’s removal soon after, in March 2021. Id. at 89-95. The6 appellant’s written response denied any wrongdoing. Id. at 31-49. The appellant attached some corresponding documentation, such as a statement about her goddaughter attending school, some of the goddaughter’s mail with the appellant’s address as her own, and letters about the appellant’s character. Id. at 50. ¶18During the proceedings below, the agency submitted all this evidence. The appellant submitted a brief argument, IAF, Tab 1 at 5, and the agency’s decision to remove her, IAF, Tab 2, but nothing more. Then, during the hearing, the agency elicited testimony from the TIGTA investigator, the OCC attorney that handled the appellant’s tax case, and the deciding official. HT at 3, 7-164. The appellant also testified, briefly. HT at 164-88. The Tax Court decision and settlement ¶19The agency has argued that the Tax Court decision, which is the product of a settlement between the IRS and the appellant as a taxpayer, is dispositive in this removal appeal for purposes of the appellant’s tax deficiencies under the doctrines of collateral estoppel or res judicata. E.g., PFR File, Tab 3 at 9-11. The administrative judge found that collateral estoppel does not apply to the Tax Court decision, based in large part on his interpretation of United States v. International Building Company , 345 U.S. 502 (1953). ID at 5-8. We agree with the administrative judge on this discrete point. ¶20In International Building , the Court considered a dispute involving an entity’s claimed depreciation of property and the resulting tax consequences over several years. 345 U.S. at 503. For some of the years at issue, after the entity also filed for bankruptcy, the parties reached a settlement agreement under which the entity owed no additional taxes. Id. at 503-04. Consequently, the Tax Court issued a formal decision reflecting the same. Id. at 504. In analyzing the matter, the Court found that this was a “pro forma acceptance by the Tax Court of an agreement between the parties to settle their controversy for reasons undisclosed.” Id. at 505. Therefore, regarding subsequent years not covered by the settlement7 agreement and Tax Court decision, the Court concluded that, because there was not an adjudication on the merits, collateral estoppel did not apply. Id. at 506. ¶21In dicta, the Court further noted that, “[c]ertainly the [Tax Court] judgements are res judicata of the tax claims for the [years covered by the settlement agreement], whether or not the basis of the agreements on which they rest reached the merits.” Id. Turning back to this appeal, the agency cites that portion of International Building to argue that the administrative judge erred. PFR File, Tab 3 at 8-9. But it seems as if the agency is conflating collateral estoppel (issue preclusion) and res judicata (claim preclusion), each of which has its own distinct requirements. Unlike collateral estoppel, res judicata only applies if the same cause of action is involved in both cases. Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 337-38 (1995). In the appellant’s Tax Court case, the cause of action was her tax deficiency. In this appeal, the cause of action is her removal from Federal service. Accordingly, the two cases do not involve the same cause of action, and res judicata does not apply. Collateral estoppel is also inapplicable because, as the administrative judge correctly noted, there was no adjudication on the merits as to the appellant’s tax deficiencies; there was, instead, what appears to be a “pro forma acceptance by the Tax Court of an agreement between the parties to settle their controversy for reasons undisclosed.” International Building , 345 U.S. at 504-06; ID at 7; IAF, Tab 12 at 98. ¶22Although collateral estoppel and res judicata do not apply, we find the Tax Court decision and settlement agreement relevant and material. The administrative judge erred by finding that they were entitled to no evidentiary weight. ID at 9-14. ¶23In a comparable case, the Board found that a Tax Court decision was material evidence. Tawadrous v. Department of the Treasury , 110 M.S.P.R. 475 (2009). The agency removed the employee in Tawadrous based on charges that he had failed to properly file his tax returns over two years and failed to timely pay his tax liabilities for those years. Id., ¶ 2. The administrative judge in8 Tawadrous affirmed the agency’s removal action. Id., ¶ 4. However, on review, the employee submitted a written agreement he had just reached with the agency to settle his Tax Court case, along with the resulting Tax Court decision. The settlement provided that the appellant had no tax deficiencies for the first year and a deficiency and penalty of roughly $1,000 for the other year, all of which substantially differed from the deficiencies and penalties originally alleged. Id., ¶¶ 15-16. Noting that this contradicted the agency’s arguments and evidence in the employee’s removal appeal, the Board found that this new evidence was material and, therefore, remanded the matter for the judge to consider the new evidence and issue a new decision.4 Id., ¶¶ 15-17. ¶24We appreciate some of the administrative judge’s concerns about the Tax Court decision and settlement agreement. In particular, we acknowledge that the settlement agreement included in the record does not contain the appellant’s signature, and it is not recounted in full or attached to the Tax Court decision in a way that is apparent to us. However, as we noted previously, the appellant included that unsigned settlement agreement with her own bankruptcy filings. And the totals contemplated by the settlement agreement are consistent with the totals identified in the Tax Court decision, which does explicitly state that the decision is the product of settlement. Plus, we found no instance of the appellant substantively disputing the authenticity of the settlement agreement during the adjudication of this appeal. ¶25The administrative judge otherwise gave no weight to the Tax Court decision and settlement agreement based on his conclusions that it would be improper to stipulate to questions of law, rather than fact, ID at 9-11, that Tax 4 Unlike the circumstances of Tawadrous, where the allegations underlying the removal appeal seemed to contradict the Tax Court settlement, the allegations in the instant appeal are consistent with those of the Tax Court settlement. The specifications for the tax charges in this appeal explicitly reference the Tax Court settlement and the resulting liabilities. IAF, Tab 12 at 89-90. Therefore, while the Tax Court settlement in Tawadrous called into question the charges underlying that employee’s removal, the opposite is true in this appeal. 9 Court rules prohibit the use of stipulations in other proceedings, ID at 11-12, and that the settlement agreement did not itself indicate that it was intended to bind the parties in subsequent proceedings, ID at 14. We find, however, that these considerations do not require that we altogether ignore the Tax Court decision and settlement agreement. The appellant’s stipulations for her Tax Court decision and settlement agreement do not preclude the appellant from presenting contrary arguments and evidence in this appeal, and they do not preclude us from reaching a conclusion that is inconsistent with the Tax Court decision and settlement agreement, but they are evidence that we can and will consider when analyzing whether the agency met its burden. Other documentary and testimonial evidence presented by the agency ¶26In addition to the Tax Court decision and underlying settlement, the record includes other documentary evidence previously discussed. Most notably, it includes the original IRS audit, the letter to the appellant about the same, and some associated hearsay evidence in the form of investigatory interview summaries. The record also includes some relevant hearing testimony. We find that the administrative judge erred in discounting or failing to recognize these and other pieces of evidence as he analyzed the agency’s allegations. ¶27To illustrate, the administrative judge found that the agency failed to prove that the appellant’s mother was not a dependent in 2013. ID at 16-17. He found that the agency did not offer any evidence about the amount of support the appellant provided for her mother versus the amount of support the appellant’s mother received from other sources, which is relevant for purposes of claiming dependents. ID at 17. However, the appellant has herself acknowledged that her mother received Social Security benefits and paid her own rent. E.g., IAF, Tab 12 at 34-35, 329, Tab 13 at 48. More importantly, the IRS audit determined, based upon an examination by tax experts who interviewed relevant parties and reviewed relevant documentation, that the appellant was not entitled to claim her mother as a dependent. E.g., IAF, Tab 12 at 299, 309, Tab 13 at 59. According10 to the TIGTA investigator’s interview notes, the revenue agent explained that the appellant would have needed to show that she provided at least $12,000 in support of her mother per year, but she was only able to document $4,500. IAF, Tab 12 at 309. The OCC attorney testified similarly. HT at 90, 98-99, 113-14 (testimony of the OCC attorney). She explained that the appellant agreed, at least for purposes of the settlement agreement, that she was not entitled to claim her mother as a dependent under the circumstances, given the mother’s living and support situations. Id. Although the appellant has vaguely alleged otherwise at times, asserting that she provided more than half of her mother’s support, she has not presented any detailed explanation or evidence of the same. E.g., IAF, Tab 12 at 35, 37, 39. And on this particular matter, the appellant offered no testimony, except to summarily assert that she supported her mother more than her mother supported herself. HT at 177 (testimony of the appellant). ¶28Beyond that one example, the administrative judge oftentimes gave little or no weight to evidence such as the IRS audit report and TIGTA interview summaries as he analyzed the other exemptions and deductions underlying the agency’s tax-related charges. To illustrate with one additional example, the administrative judge found that the agency did not offer evidence about the roughly $19,000 in disallowed deductions for 2014. ID at 21. In doing so, he acknowledged that the OCC attorney provided some testimony about the matter, but he characterized that as the agency’s litigation position and not evidence. Id. (citing McClain v. Office of Personnel Management , 76 M.S.P.R. 230, 238 (1997) (providing that statements of purported fact by representatives are not evidence)). We disagree. ¶29The OCC attorney was a sworn witness, testifying at the hearing. HT at 77-78 (testimony of the OCC attorney). Among other things, she testified about how she met with the appellant regarding the appellant’s tax case, but the appellant provided no documentation to counter the IRS audit’s disallowed exemptions and deductions, despite that being the point of their meeting. Id.11 at 85-86, 91-95, 100-01. This sworn testimony is evidence, regardless of the witness’s profession, and the administrative judge erred in suggesting otherwise. Moreover, as we previously recognized, the agency also presented documentary evidence about the disallowed deductions, including the IRS audit reports. E.g., IAF, Tab 12 at 154, 345, Tab 13 at 57. The agency also presented the hearsay evidence previously discussed about this and other issues, from TIGTA interview summaries, which is admissible in Board proceedings and may be probative. E.g., IAF, Tab 12 at 138-39, 150-51, 154, 299-300, 306-08, 313, 324-29; see Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 83-87 (1981) (recognizing that the probative value of hearsay evidence necessarily depends on the circumstances of each case). In finding that the agency offered no evidence about the disallowed deductions, the administrative judge erred by not recognizing the same.5 ¶30Regarding the roughly $19,000 in disallowed deductions, the administrative judge acknowledged that the appellant had not disputed the matter during this appeal. ID at 21. But he found that this was unimportant. Id. According to the administrative judge, if he were to rely on the appellant’s failure to dispute the allegation, that would improperly shift the burden to the appellant. Id. On this point, we also disagree. ¶31The agency does have the burden of proving its charges by preponderant evidence. Elder v. Department of the Air Force , 124 M.S.P.R. 12, ¶ 27 (2016). However, where the agency presents evidence about an allegation, as it has done 5 It is inherent that the kinds of evidence the agency could produce for these matters is limited. To illustrate, the appellant reported more than $12,000 in charitable contributions in 2014. E.g., IAF, Tab 13 at 60. On the one hand, it is difficult to imagine how the agency could prove that the appellant made no such contributions. On the other hand, the IRS audit report and testimony from the OCC attorney are precisely the kinds of evidence that would show that the appellant was not entitled to some or all of the claimed deductions for charitable contributions due to her inability to substantiate the same. See, e.g., 26 U.S.C. § 170 (internal revenue code provisions for charitable contributions, including provisions about a taxpayer having to substantiate contributions to be allowed a deduction). 12 throughout this appeal, we may consider the appellant’s failure to present arguments and evidence to the contrary. See e.g., Hollingsworth v. Department of the Air Force, 121 M.S.P.R. 397, ¶ 5 (2014) (recognizing that an appellant did not dispute a particular portion of the agency’s allegation and, therefore, not discussing the matter any further); Parbs v. U.S. Postal Service , 107 M.S.P.R. 559, ¶ 20 (2007) (recognizing that even circumstantial evidence can constitute proof by preponderant evidence when an appellant has not offered significant contrary proof), aff’d per curiam , 301 F. App’x 923 (Fed. Cir. 2008). The absence of specific argument and evidence by the appellant, to dispute specific tax-related allegations and associated evidence from the agency, is especially relevant in this case, where the appellant was herself a Supervisory Revenue Officer for the IRS. The appellant’s testimony ¶32As a final point regarding the evidence of record, we note that the administrative judge credited the appellant’s testimony about the living situation of her goddaughter in 2014, which is relevant to her claiming the goddaughter as a dependent that year. ID at 23-31. We find no basis for disturbing that finding. See Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (recognizing that the Board must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so). We note, however, a few other aspects of the appellant’s testimony, some of which we already mentioned, that the administrative judge did not rely on when making other findings of fact. ¶33First, as mentioned earlier, the appellant is a Supervisory Revenue Officer, but she did not present the kind of documentation necessary or expected to support her claimed exemptions when confronted by the IRS audit, when facing her Tax Court case, or during this removal matter. Her testimony provided no13 explanation for this absence of documentation to substantiate her tax filings, except to summarily state that some bank statements pertaining to her mother’s support were not available. HT at 179 (testimony of the appellant). ¶34Second, the appellant’s testimony was mostly broad and general. To illustrate, the appellant testified that she “did help with [her goddaughter] financially” and that she “financially provided for [her goddaughter’s] support.” Id. at 168-69. But the appellant’s testimony about the goddaughter’s trust is difficult to follow and lacking in detail, even though the appellant was the trustee, and even though the trust reportedly held millions of dollars for the goddaughter. Id. at 167. At times, the appellant indicated that she did not take any money from the trust to pay for household bills or to support the goddaughter, but at other times she stated that the goddaughter received an annual distribution of $30,000 and that she gave the goddaughter money when she asked for it. Id. at 169-72. Further, the appellant did not explain why she would have provided the majority of support to her goddaughter and the goddaughter’s son, herself, rather than using the millions of dollars in trust that was seemingly established for care of the goddaughter. The same is true of her testimony about the degree to which the appellant financially supported her mother. Id. at 177-78. The appellant provided no detailed explanation of the support she provided for her mother, as opposed to the support the mother received from other sources. ¶35Third, the appellant’s testimony contains no mention of the disallowed deductions. The appellant testified about the disallowed exemptions for dependents, id. at 166-75, 177-79, her prior discipline, id. at 175-77, and her bankruptcy, id. at 179-80, but not her disallowed deductions. ¶36In sum, the record contains significant evidence for us to consider when analyzing the agency’s charges. The administrative judge erred in overlooking or discounting much of the evidence.14 The agency proved its first charge. ¶37Having already discussed the relevant evidence, at length, our analysis of the agency’s tax-related charges is straightforward. The first charge alleged as follows: You willfully understated your tax liability on your Federal Income Tax return and failed to show reasonable cause for your understatement. Even if you did not willfully understate the tax liability reflected on your return, you failed to accurately state your tax liability and ensure the accuracy of your return prior to filing. IAF, Tab 12 at 89. The first specification underlying this charge provided: You claimed a tax liability of $9,509.00 on your 2013 Federal income tax return. On your return, you claimed a dependency exemption for [your mother and goddaughter] and a filing status of Head of Household. As a result of an Audit and subsequent Tax Court settlement you entered into with the Internal Revenue Service concerning your 2013 Federal income tax return, you actually were not entitled to the dependency exemptions you claimed for [your mother and goddaughter] on your return and your filing status was changed from Head of Household to Single. As a result, your tax liability for 2013 was increased by $4,089.00. Id. The second specification provided: You claimed a tax liability of $4,431.00 on your 2014 Federal income tax return. On your return, you claimed dependency exemptions for [your mother, your goddaughter, and your goddaughter’s son], a child tax credit for dependents, and a filing status of Head of Household. You also claimed itemized deductions on your Schedule A for Non-Cash Contributions, Cash Contributions, and Medical and Dental Expenses. As a result of an Audit and a subsequent Tax Court settlement you entered into with the Internal Revenue Service concerning your 2014 Federal income tax return, you actually were not entitled to the dependency exemptions you claimed for [your mother, your goddaughter, and your goddaughter’s son]; you were not entitled to the child tax credit you claimed for dependents; and your filing status was changed from Head of Household to Single. In addition, $19,161.00 of your Schedule A deductions for Non-Case Contribution, Cash Contributions, and Medical and Dental Expenses were disallowed. You are also liable for a tax penalty under [Internal Revenue Code] § 6662(a) in the15 amount of $1,563.80. As a result, your tax liability for 2014 was increased by $7,819.00 plus a penalty of $1,563.80. Id. at 89-90. ¶38The allegations in these specifications are consistent with the terms of the settlement agreement and the Tax Court decision, which we find to be relevant evidence for the reasons already discussed. Id. at 98-99, 119-20. The allegations are further supported by other evidence, such as the IRS audit report, TIGTA interview summaries with the revenue agent, the final “Form 4549-A, Income Tax Examination Changes” report, and the testimony of the OCC attorney.6 E.g., IAF, Tab 12 at 299-300, 306-09, 313, 330-45, Tab 13 at 50-67. ¶39We recognize and appreciate the appellant’s hearing testimony, including her discussions about the circumstances surrounding her claimed dependents. HT at 165-87 (testimony of the appellant). We also acknowledge other instances in which the appellant described those circumstances or her disallowed deductions, such as her letter to the Tax Court, her interview with the revenue agent, and her response to the proposed removal. E.g., IAF, Tab 12 at 31-49, 335-39, Tab 13 at 44-49. The appellant’s various statements were somewhat detailed, at times, especially as to the nature of her relationships. However, when it came to key 6 We once again acknowledge that the investigatory interview summaries of the revenue agent contain hearsay. In assessing the probative value of hearsay evidence, the Board has recognized the following factors: (1) the availability of persons with firsthand knowledge to testify at the hearing; (2) whether the statements of the out-of-court declarants were signed or in affidavit form, and whether anyone witnessed the signing; (3) the agency’s explanation for failing to obtain signed or sworn statements; (4) whether declarants were disinterested witnesses to the events, and whether the statements were routinely made; (5) consistency of declarants’ accounts with other information in the case, internal consistency, and their consistency with each other; (6) whether corroboration for statements can otherwise be found in the agency record; (7) the absence of contradictory evidence; and (8) the credibility of declarant when he made the statement attributed to him. Borninkhof, 5 M.S.P.R. at 87. For the revenue agent, it is not apparent to us whether he was unavailable to testify, but the hearsay statements attributed to him do predate the hearing in this matter by 5 years. In any event, at the time of the statements attributed to him, the revenue agent seems to have been a disinterested party making relatively routine assessments and statements about his audit of the appellant’s tax filings, all of which are consistent with the audit reports.16 questions, including the level of support she provided to the claimed dependents compared to the support they received from other sources, the appellant did not provide detailed or persuasive explanations. The appellant also presented virtually no explanation of her disallowed deductions. And, most importantly, the appellant did not present the kinds of documentary evidence or other support to counter the agency’s evidence and substantiate her claimed exemptions and deductions. ¶40Weighing all the evidence, we find that the agency has proven that the appellant did not accurately state her tax liability and ensure the accuracy of her returns for 2013 and 2014. The agency’s burden of proof is preponderant evidence, i.e., 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). The agency met that burden as to the accuracy of the appellant’s 2013 and 2014 tax filings.7 The agency’s second charge merges with its first. ¶41The agency’s second charge alleged that the appellant “failed to timely pay [her] Federal tax liability or claimed a refund of [her] Federal tax liability to which [she] was not entitled.” IAF, Tab 12 at 90. Although we need not recount the associated specifications word for word, the first alleged that her tax liability increased by $4,089 for 2013 after the audit and settlement, as compared to the appellant’s own filings and claimed refund. Id. The second alleged that her tax 7 Because we find that the agency has proven that the appellant did not accurately state her tax liability and ensure the accuracy of her returns for 2013 and 2014, as alleged, and that this warrants the appellant’s removal, we need not consider the agency’s alternative basis for the charge, i.e., that the appellant acted willfully, or the agency’s argument that this willfulness precludes the Board from reviewing its penalty. See generally Ledbetter v. Department of the Treasury , 102 M.S.P.R. 598, ¶ 9 (2006) (finding that under the IRS Restructuring and Reform Act of 1998 (RRA), Pub. L. No. 105-206, 112 Stat. 720, the Board lacks the authority to review the agency’s penalty of removal for a willful violation of section 1203(b)(9) of the RRA); IAF, Tab 12 at 90-91 (describing the alternative bases for the agency’s action).17 liability increased by $7,819 for 2014 after the audit and settlement, as compared to the appellant’s own filings claimed refund. Id. ¶42The Board will merge charges if they are based on the same conduct and proof of one charge automatically constitutes proof of the other charge. Mann v. Department of Health and Human Services , 78 M.S.P.R. 1, 7 (1998). In this case, proof of the specifications underlying the first charge automatically constitutes proof of the specifications underlying the second. The charges are, therefore, merged. The fact that one charge has been merged into another does not, however, mean that the duplicative charge is not sustained, or that the appellant’s misconduct somehow becomes less serious by virtue of the merger. Shiflett v. Department of Justice , 98 M.S.P.R. 289, ¶ 12 (2005). Removal is a reasonable penalty for the tax-related charges. ¶43In addition to the tax-related charges, the agency also charged the appellant with improperly adding her goddaughter and goddaughter’s son to her Federal employee health insurance plan. The administrative judge found that the agency did not prove this charge because there was no evidence setting out the criteria for who could and who could not be added to an employee’s health plan. ID at 42-44. The agency argues otherwise, but we find it unnecessary to decide that issue because the tax charges suffice to sustain the appellant’s removal. See, e.g., Leach v. Department of Veterans Affairs , 107 M.S.P.R. 229, ¶ 10 (2007) (finding that the Board need not address one charge because the other brought by the agency supported the employee’s removal). ¶44Because we have not considered the agency’s third charge, it is appropriate for penalty determination purposes to consider this to be an appeal in which not all charges were sustained. Id., ¶ 13. When the Board does not sustain all the charges, it will carefully consider whether the sustained charges merit the penalty imposed by the agency. Moncada v. Executive Office of the President , 2022 MSPB 25, ¶ 39. The Board may mitigate the penalty imposed by the agency to the maximum penalty that is reasonable in light of the sustained charges as18 long as the agency has not indicated in either its final decision or in proceedings before the Board that it desires that a lesser penalty be imposed for fewer charges. Id. ¶45In this case, the deciding official explicitly stated that the tax-related charges warranted the appellant’s removal, by themselves, even if the appellant did not act willfully in understating her tax liabilities. IAF, Tab 12 at 16. He did so in the decision letter, which contains his Douglas analysis. Id. at 13-16; see Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of factors that may be relevant when assessing the reasonableness of a penalty). We agree. ¶46Even if she did not act willfully, the appellant’s understatements of her tax liabilities in multiple ways over multiple years are serious and “in direct conflict with the mission of the Service.” IAF, Tab 12 at 15. Although we have not decided whether the appellant’s understatements were willful, we cannot help but find that they were at least reckless. The appellant’s position only magnifies this because the appellant’s duties were directly related to tax compliance, yet she claimed tens of thousands of dollars’ worth of exemptions and deductions without the ability to substantiate the same. Plus, the appellant held a supervisory position, and supervisors can be held to a higher standard of conduct. E.g., id. at 346-49; see Thomas v. Department of the Army , 2022 MSPB 35, ¶ 21 (recognizing that an agency has the right to expect a higher standard of conduct from a supervisor because they occupy positions of trust and responsibility). ¶47We further note that this disciplinary action follows two others for the appellant, each of which involved financial misconduct involving her government travel card. IAF, Tab 12 at 15, Tab 13 at 40-42, 93. Under the agency’s table of penalties, a third offense calls for a penalty ranging from a 15-day suspension to removal. IAF, Tab 13 at 361. The table further states that, for even an unintentional understatement of taxes, “[m]ore severe penalties should be19 considered when the position of the employee is directly related to tax administration.” IAF, Tab 12 at 361. ¶48Though not mentioned in the decision letter or the deciding official’s hearing testimony, we recognize that the appellant had about 30 years of service. IAF, Tab 12 at 12. We also recognize and appreciate the stressors the appellant experienced during the relevant period, such as the tumultuous relationship between her and her goddaughter. E.g., HT at 170-71, 173-75 (testimony of the appellant). However, mitigating factors weighing in the appellant’s favor do not outweigh those that support her removal. Compare Jenkins v. Department of the Treasury, 104 M.S.P.R. 345, ¶¶ 3, 16 (2007) (finding that removal was a reasonable penalty for failing to timely and properly file a tax return where, inter alia, the IRS employee had received two prior disciplinary actions), with Gaudin v. Department of the Treasury , 109 M.S.P.R. 301, ¶¶ 2, 9-16 (2008) (mitigating an employee’s removal to a demotion where, inter alia, their understatement of tax liability was unintentional, they otherwise had a stellar history of performance with no prior discipline, and some of the most serious specifications were unproven). 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 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.20 regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The21 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file22 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.9 The court of appeals must receive your petition for 9 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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. Contact information for the courts of appeals can be 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.24	Harris_Campbell_Denise_L_CH-0752-21-0458-I-1__Final_Order.pdf	2023-12-12	DENISE LAVETTE HARRIS CAMPBELL v. DEPARTMENT OF THE TREASURY, MSPB Docket No. CH-0752-21-0458-I-1, December 12, 2023	CH-0752-21-0458-I-1	NP
2,623	https://www.mspb.gov/decisions/nonprecedential/Hardyway_Tonia_L_AT-0752-17-0695-I-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TONIA LEE HARDYWAY, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-0752-17-0695-I-1 DATE: December 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jeffrey H. Jacobson , Esquire, Tucson, Arizona, for the appellant. Lois F. Prince and Kathleen Pohlid , Esquire, Nashville, Tennessee, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The agency has timely filed a petition for review of the initial decision, which reversed the appellant’s reduction in grade and pay 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 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2The appellant was formerly a Supervisory Social Worker, Assistant Chief of Social Work Services, in the Social Work Service branch of the Veterans Administration Tennessee Valley Health Care System. Initial Appeal File (IAF), Tab 43 at 42; Hearing Transcript, Vol. III at 144, 146 (testimony of the appellant). The Assistant Chief position is located in the Office of the Chief of Social Work Service, which oversees ten different programs, including the Community Based Care Program (CBCP). IAF, Tab 16 at 62, Tab 17 at 5. ¶3Effective July 23, 2017, the agency reduced the appellant in grade and pay from her Assistant Chief of Social Work Service position to a nonsupervisory position based on a charge of “Failure to Provide Adequate Program Oversight” over the CBCP. IAF, Tab 16 at 18-60. The appellant filed a Board appeal, challenging the merits of the agency’s action on the basis that she was not responsible for CBCP oversight and raising affirmative defenses of harmful procedural error and retaliation for equal employment opportunity (EEO) activity. IAF, Tab 1, Tab 91 at 1-5. After a hearing, the administrative judge issued an initial decision reversing the action based on the agency’s failure to prove that the appellant was assigned responsibility over the CBCP program. IAF, Tab 123, Initial Decision (ID) at 4-9. The administrative judge found that the appellant 3 failed to prove her affirmative defense of EEO retaliation, and, because she had reversed the agency’s action on the merits, she declined to adjudicate the appellant’s harmful error defense. ID at 9-10. ¶4The agency has filed a petition for review, challenging the administrative judge’s findings about the scope of the appellant’s responsibilities as Assistant Chief. Petition for Review (PFR) File, Tab 1. The appellant has filed a response to the petition for review, and the agency has filed a reply to the appellant’s response. PFR File, Tabs 7, 11. ¶5We have considered the agency’s arguments on review that the administrative judge misconstrued the charge, applied an incorrect evidentiary standard, and ignored certain evidence in reaching her decision. PFR File, Tab 1 at 14-16, 19-20. We find these arguments to be unpersuasive and unsupported by the record. It appears to us that the agency is actually contesting the administrative judge’s weighing and evaluation of the evidence. ¶6In her initial decision, the administrative judge relied in part on the testimony of the appellant’s former supervisor, the Chief of Social Work Service, who testified that she never assigned the appellant to oversee the CBCP. ID at 5; Hearing Transcript, Vol. II at 115-16 (testimony of the Chief). While acknowledging the deference owed to the administrative judge’s assessment of the Chief’s credibility, see Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002), the agency argues that there are sufficiently sound reasons for the Board to overturn that credibility determination. PFR File, Tab 1 at 18-19. We disagree. The Chief’s testimony was corroborated by the CBCP program manager, who testified that the CBCP was not part of the appellant’s responsibility. ID at 7-8; Hearing Transcript, Vol. I at 181-83 (testimony of the CBCP program manager). The administrative judge also found the Chief’s testimony compelling because she made a statement against interest by taking responsibility for the shortcomings in CBCP oversight, rather than shifting the blame to the appellant, and had in fact been removed because of her lack of 4 oversight. ID at 5 n.8. We see no basis for setting aside the administrative judge’s well-reasoned credibility determinations. ¶7Finally, in analyzing the appellant’s defense of EEO retaliation, the administrative judge applied the standard applicable in general retaliation claims set forth in Warren v. Department of the Army , 804 F.2d 654, 656-58 (Fed. Cir. 1986), rather than the standard applicable in EEO retaliation claims. After the initial decision was issued, the Board clarified the analytical framework for addressing EEO retaliation claims. Claims of retaliation for opposing discrimination in violation of Title VII are analyzed under the same framework used for Title VII discrimination claims, namely, that the appellant bears the initial burden of proving by preponderant evidence that her protected EEO activity was a motivating factor in her reduction in grade and pay. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 30. It is undisputed that the appellant engaged in EEO activity protected under Title VII. IAF, Tab 45 at 6. The administrative judge found, however, that the appellant introduced little evidence of retaliation other than the fact of her complaint. ID at 9-10. In addition, the administrative judge found that the agency’s action was the result of an investigation that discovered serious problems in the CBCP. ID at 10. The appellant does not dispute these findings on review. Therefore, we find that the appellant has not shown that her EEO activity was a motivating factor in the agency’s decision to demote her.2 ORDER ¶8We ORDER the agency to cancel the appellant's reduction in grade and pay and reinstate her to the position of Assistant Chief of Social Work Services effective July 27, 2017. See Kerr v. National Endowment for the Arts , 726 F.2d 2 Because we discern no error with the administrative judge’s motivating factor conclusions regarding the appellant’s retaliation claim, it is unnecessary for us to address whether retaliation was a “but-for” cause of the reduction in grade and pay. See Pridgen, 2022 MSPB 31, ¶¶ 20-25. 5 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶9We 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. ¶10We 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). ¶11No 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). ¶12For 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 6 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 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. 7 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 8 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 9 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 10 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ 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.	Hardyway_Tonia_L_AT-0752-17-0695-I-1_Final Order.pdf	2023-12-12	TONIA LEE HARDYWAY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-17-0695-I-1, December 12, 2023	AT-0752-17-0695-I-1	NP
2,624	https://www.mspb.gov/decisions/nonprecedential/Cunningham_Carleatha_AT-0752-18-0297-I-1_Final Order.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CARLEATHA W CUNNINGH AM, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency. DOCKET NUMBER AT-0752 -18-0297- I-1 DATE: December 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sterling Deramus, Birmingham, Alabama, for the appellant. David Logan Pool and Natalie Liem , Atlanta, Georgia, 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 sustained her removal. On petition for review, the appellant argues that her termination was not supported by substantial evidence,2 and that the penalty was 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 agency removed the appellant from a permanent competitive service Claims Specialist position, and her appeal was therefore governed by the provisions in 5 U.S.C. 2 overly harsh for the alleged offenses . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established 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 RIG HTS 3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their §§ 7511 -13, 7701. As such, the administrative judge correctly held that the agency’s burden was to prove the charges by a preponderance of the evidence. Initial Appeal File, Tab 24 at 2 (citing 5 U.S.C. § 7701(c)(1)(B) in support of the holding that the preponderance of the evidence burden was applicable). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S. C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 4 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 240 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e- 5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Fe deral Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 5 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judi cial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for j udicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 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 c ourt’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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 ac cessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . ((SIGNATURE)) FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.	Cunningham_Carleatha_AT-0752-18-0297-I-1_Final Order.pdf	2023-12-12	null	AT-0752	NP
2,625	https://www.mspb.gov/decisions/nonprecedential/Cruz-Jute_Sandra_AT-0752-17-0488-I-2_Final Order.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SANDRA I. CRUZ -JUTE, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0752 -17-0488- I-2 DATE: December 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Bradley R. Marshall, Mt. Pleasant, South Carolina, for the appellant. T. B. Burton and Karen Mulcahy , Bay Pines, Florida, 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 sustained her removal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 a pplication of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201. 115). After fully considering the filings in this appeal, we conclude that the petitioner has not established 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 RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review a nd the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 2 Because we affirm the administrative judge’s finding that the appellant failed to show that any prohibited consideration was a motivating factor in the agency’s action, we need not resolve the issue of whether the appellant proved that discrimination or retaliation w as a “but -for” cause of the agency’s decisions. See Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20- 22, 29- 33. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 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 dec ide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which i s contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 Fe deral Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 Al l 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 c ourt’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 . ((SIGNATURE)) FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.	Cruz-Jute_Sandra_AT-0752-17-0488-I-2_Final Order.pdf	2023-12-12	null	AT-0752	NP
2,626	https://www.mspb.gov/decisions/nonprecedential/Wong_Don_DC-0752-17-0298-I-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DON K. WONG, Appellant, v. DEPARTMENT OF COMMERCE, Agency.DOCKET NUMBER DC-0752-17-0298-I-2 DATE: December 8, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kevin L. Owen , Esquire, and Renn Fowler , Esquire, Silver Spring, Maryland, for the appellant. Tracy Gonos , Esquire, and Josh Hildreth , Esquire, Alexandria, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which sustained his reduction in grade and pay for misconduct. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). BACKGROUND ¶2The appellant was a GS-15 Supervisory Patent Examiner for the agency’s U.S. Patent and Trademark Office. Wong v. Department of Commerce , MSPB Docket No. DC-0752-17-0298-I-1, Initial Appeal File (IAF), Tab 6 at 322. On September 1, 2016, the agency proposed the appellant’s reduction in grade and pay to GS-14 Patent Examiner, along with a 60-day suspension, based on a single charge of Improper Conduct supported by 29 attendance-related specifications. Id. at 189-92. Under 14 of the specifications, the agency alleged that the appellant was absent without leave (AWOL) for 8 hours on each of 14 days between October 19, 2015, and May 3, 2016, because he failed to report to his duty station as scheduled and failed to request leave. Id. Under 14 other specifications, the agency again alleged that the appellant failed to request leave on these dates. Id. The remaining specification pertains to the appellant’s claiming pay for 8 hours of work on a day when he could only have claimed 5 hours under the agency’s Increased Flexitime policy. Id. at 191. After the appellant replied to the notice, the deciding official issued a decision upholding2 all but four of the specifications and mitigating the proposed penalty to a reduction in grade and pay only, without a suspension. Id. at 29-33. ¶3The appellant filed a Board appeal and requested a hearing. IAF, Tab 1 at 2, 4. He disputed both the charges and the penalty. Wong v. Department of Commerce, MSPB Docket No. DC-0752-17-0298-I-2, Appeal File (I-2 AF), Tab 6 at 4-8. After a hearing, the administrative judge issued an initial decision sustaining the reduction in grade and pay. I-2 AF, Tab 17, Initial Decision (ID). He merged the specifications alleging AWOL with the corresponding specifications alleging failure to request leave and sustained nine of them. ID at 6-12. He also sustained the specification regarding the appellant’s recording 8 hours of telework on a day that he should have only recorded 5 hours. ID at 12-13. The administrative judge further found that the deciding official considered the relevant factors in arriving at a penalty that was within the tolerable limits of reasonableness. ID at 13-17. ¶4The appellant has filed a petition for review, again disputing the charge and the penalty, as well as some of the administrative judge’s evidentiary rulings. Petition for Review (PFR) File, Tab 1.2 The agency has filed a response to the petition for review, and the appellant has filed a reply to the agency’s response. PFR File, Tabs 3-4. ANALYSIS The administrative judge correctly sustained 10 of the agency’s specifications. ¶5Under the agency’s Patent Management Telework Program, the appellant was permitted to telework up to 32 hours per biweekly pay period. IAF, Tab 6 2 After the close of the record on review, the appellant moved for leave to file additional evidence pertaining to a comparator employee for purposes of showing a disparity in penalty. PFR File, Tab 11. Although it appears that this evidence may have been previously unavailable despite the appellant’s due diligence, there is no indication that either the proposing official or the deciding official was aware of this comparator case during the relevant time period. We therefore find that the appellant has not shown that this evidence would be material to the outcome of the appeal. See infra ¶ 13. The appellant’s motion is denied.3 at 203. He was, however, required to notify the agency in advance of his telework schedule for each pay period. Id. at 203-04. In addition, under the agency’s Increased Flexitime Program, the appellant was permitted some flexibility in logging the required 80 hours of work for each pay period, but he was required to fulfill this requirement between the hours of 5:30 a.m. and 10:00 p.m., Monday through Saturday. Id. at 203. All specifications of the agency’s charge were based on the appellant’s failure to accomplish his work according to these parameters. Id. at 189-92. As explained above, the administrative judge sustained one specification related to the appellant recording too many hours of telework one day, as well as nine specifications of AWOL. We will discuss these in turn. ¶6Regarding the specification related to recording too may telework hours, the administrative judge found that, on March 21, 2016, the appellant logged onto the agency’s system to begin teleworking at 4:56 p.m., and therefore could only have worked approximately 5 hours that day–until the 10:00 p.m. cutoff time. ID at 12. The appellant, however, claimed 3 additional hours of telework that day, for a total of 8 hours. Id. The administrative judge sustained this specification, and the appellant does not challenge the administrative judge’s finding on review. We therefore find that this specification and the charge as a whole were properly sustained. See Burroughs v. Department of the Army , 918 F.2d 170, 172 (Fed. Cir. 1990). ¶7Regarding the nine specifications of AWOL, the administrative judge found that, on nine different days, the appellant recorded 8 hours of regular time onsite work even though he actually teleworked on those days. ID at 8-10. Although it appeared that the appellant may have been eligible to telework on the days in question, he did not inform the agency of his intention to telework in advance, and the agency was therefore expecting him to be onsite. ID at 9. The administrative judge found that the operative fact was the appellant’s absence from his worksite on the days in question, and the fact that he may have been4 working from another location was immaterial. ID at 7, 9-10. He therefore sustained these nine specifications of AWOL. ID at 7-10. ¶8On petition for review, the appellant disputes the administrative judge’s legal analysis, arguing that what the agency proved were a series of timekeeping errors rather than AWOL. PFR File, Tab 1 at 13-15. We disagree. To prove AWOL, an agency must establish that the appellant was absent and that the absence was not authorized, and if the appellant requested leave, that the leave request was properly denied. Elder v. Department of the Air Force , 124 M.S.P.R. 12, ¶ 28 (2016). Although the “absence” element normally takes the form of complete absence from duty, it also may be satisfied by absence from the appropriate duty station. In Rodriguez v. Department of Agriculture , 27 M.S.P.R. 79, 84 (1985), the Board sustained a charge of AWOL when the appellant failed to report to work at his temporary duty station as directed, notwithstanding that he continued to report for duty at his normal duty station. Likewise, in this case, when the appellant failed to report to work onsite as expected, we find that the administrative judge properly sustained the specifications of AWOL, notwithstanding that the appellant worked from home instead. Furthermore, we note that the appellant’s characterization of this as a timekeeping error stems from him recording his telework as regular time. This is wholly separate from the issue of AWOL, as the agency would have been able to prove AWOL regardless of how the appellant recorded his time; the crucial fact remains that the appellant was not working from where the agency required him to be.3 To the extent that the appellant is arguing that the circumstances of his AWOL are less egregious than the term “AWOL” suggests, PFR File, Tab 1 at 13-15, this consideration goes to the issue of penalty and not to the charge itself. 3 As the administrative judge correctly found, the agency could have, but did not, charge the appellant separately for inaccurate timekeeping. ID at 11. Whether the appellant’s inaccurate timekeeping was actually an error or was a deliberate attempt to cover up his unauthorized absence from the worksite remains an open question, and one that we decline to reach in the context of this appeal.5 The agency’s chosen penalty is entitled to deference and falls within the tolerable limits of reasonableness. ¶9When all of the agency’s charges are sustained, but not all of the underlying specifications are sustained, the agency’s penalty determination is entitled to deference and is reviewed only to determine whether it is within the parameters of reasonableness. See Payne v. U.S. Postal Service , 72 M.S.P.R. 646, 650 (1996). In applying this standard, however, the Board must take into account the agency’s failure to sustain all of its supporting specifications. Id. at 651. In this case, the administrative judge found that the deciding official conscientiously weighed the appropriate penalty factors and that a reduction in grade and pay was within the tolerable limits of reasonableness for the sustained misconduct. ID at 14-17. ¶10On petition for review, the appellant argues that the agency’s penalty determination is not entitled to deference because the deciding official failed to properly account for the appellant’s rehabilitative potential and failed to consider any penalty other than a reduction in grade and pay. PFR File, Tab 1 at 16-19. He points out that he performed successfully in a nonsupervisory GS-15 position during the pendency of the adverse action and argues that a brief suspension coupled with a permanent reassignment to such a position would have been a more appropriate penalty. Id. at 20-22. The appellant further argues that there are several documents, including the agency’s table of penalties, a vacancy announcement for a nonsupervisory GS-15 attorney position, and a suspension decision for a comparison employee, that counsel for mitigation and that the administrative judge improperly excluded from evidence. Id. at 20, 22-31. ¶11Regarding the appellant’s rehabilitative potential, we do not agree that the deciding official failed to consider it in his penalty analysis. The deciding official explained in his decision letter that he found the appellant to have rehabilitative potential but that this was offset by his supervisory status and the severity of his attendance-related misconduct during a period when the agency was attempting to address time and attendance abuse. IAF, Tab 6 at 31-32. We6 agree with the appellant that his supervisory status and the agency’s efforts to correct time and attendance abuse do not pertain to his rehabilitative potential per se, PFR File, Tab 1 at 18, but our interpretation of these comments is that the deciding official found that the appellant’s rehabilitative potential was outweighed by other factors, IAF, Tab 6 at 32; Hearing Compact Disc (HCD) at 32:30, 56:15, 1:05:20 (testimony of the deciding official). ¶12As for the deciding official’s consideration of alternative sanctions, we find as an initial matter that the reduction in grade and pay was itself an alternative sanction to the proposed reduction in grade and pay plus a lengthy suspension. IAF, Tab 6 at 32, 189. We acknowledge that the deciding official did not specifically consider placing the appellant in a nonsupervisory GS-15 position, which appears to have been a viable alternative under the circumstances. HCD at 53:00 (testimony of the deciding official). This reassignment, coupled with a suspension, may have been adequate to deter future misconduct by the appellant, consistent with the agency’s general policy of progressive discipline. However, a deciding official’s failure to consider alternative sanctions does not vitiate his penalty determination. See Thias v. Department of the Air Force , 32 M.S.P.R. 46, 49 (1986). The law requires that an agency show that its chosen penalty promotes the efficiency of the service, but there may be a range of penalties that would be reasonable in a given case. See 5 U.S.C. § 7513(a); Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 18. A deciding official’s choice of one reasonable penalty over another does not by itself provide a basis for mitigation. See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981) (stating that the Board will review an agency-imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion within the tolerable limits of reasonableness). Considering the penalty factors as a whole, particularly the nature and seriousness of the appellant’s repeated offenses and their relation to his supervisory attorney position, we agree with the administrative judge that the agency’s chosen penalty was reasonable. ID at 14-17. 7 ¶13As to the administrative judge’s exclusion of certain evidence from the record, assuming without deciding that this constituted an abuse of discretion, we find that these documents are immaterial to the outcome of the appeal and that the administrative judge’s rulings on them were therefore harmless error at most. See Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981). Regarding the vacancy announcement, the appellant appears to have proffered it to show that a lesser alternative sanction was available for the agency to consider. I-2 AF, Tab 6 at 270-73. As explained above, however, the deciding official’s failure to consider this particular alternative provides no basis to disturb his ultimate penalty selection. Regarding the table of penalties, although the deciding official did not consider it in arriving at his decision, HCD at 25:05, 40:20 (testimony of the deciding official), even if we were to consider it now, we would find that a reduction in grade and pay falls within the table’s non-binding guidelines for the appellant’s nine incidents of AWOL, I-2 AF, Tab 7 at 4, 6. Finally, regarding the proffered comparator evidence, we find no indication that the deciding official was aware of it when he rendered his decision. IAF, Tab 6 at 31; I-2 AF, Tab 7 at 27-32. This significantly limits the probative value of this particular evidence. See Facer v. Department of the Air Force , 836 F.2d 535, 539 (1988) (holding that, in assessing an agency’s penalty determination, the relevant inquiry is whether the agency knowingly and unjustifiably treated employees differently). Given that this is but one among many penalty factors to consider, we find that, even assuming that these employees were similarly situated, this evidence is insufficient to overturn the agency’s penalty determination, which was thorough and reasonable as a whole. Singh, 2022 MSPR 15, ¶ 188 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.9 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2)Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any10 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s11 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 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.13	Wong_Don_DC-0752-17-0298-I-2_Final_Order.pdf	2023-12-08	DON K. WONG v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0752-17-0298-I-2, December 8, 2023	DC-0752-17-0298-I-2	NP
2,627	https://www.mspb.gov/decisions/nonprecedential/Ramirez_Alfonso_DE-0752-14-0482-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ALFONSO G. RAMIREZ, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER DE-0752-14-0482-I-1 DATE: December 8, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Alfonso G. Ramirez , Tucson, Arizona, pro se. Zulema Hinojos-Fall , Albuquerque, New Mexico, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which sustained his removal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 by this Final Order to supplement the analysis of the charges and the appellant’s affirmative defense of retaliation for equal employment opportunity (EEO) activity, we AFFIRM the initial decision. BACKGROUND ¶2Effective July 18, 2014, the agency removed the appellant from his Program Support Assistant position at the agency’s Southern Arizona Veterans Administration Health Care System (SAVAHCS) based on two charges of violating the Health Insurance Portability and Accountability Act (HIPAA) and the Privacy Act. Initial Appeal File (IAF), Tab 11 at 9-13, 69-74. Each charge was supported by three specifications, alleging that on February 13, 23, and 27, 2014, the appellant disclosed veterans’ protected health information (PHI)2 and personally identifiable information (PII) when, to support his discrimination complaint, he sent documents to the Office of Resolution Management (ORM) 2 PHI means individually identifiable health information, which is defined as information that is a subset of health information, including demographic information collected from an individual, and (1) is created or received by a health care provider, health plan, employer, or health care clearinghouse; and (2) relates to an individual’s past, present, or future physical or mental health condition; providing health care to an individual; or the past, present, or future payment for providing health care to an individual; and (i) that identifies the individual; or (ii) with respect to which there is a reasonable basis to believe the information can be used to identify the individual. 45 C.F.R. § 160.103. 2 that contained patients’ names, addresses, full or partial social security numbers, and medical diagnoses associated with Agent Orange. Id. at 69-74. ¶3The appellant filed a Board appeal challenging his removal and raising affirmative defenses of harmful procedural error, denial of due process, and whistleblower reprisal. IAF, Tabs 1, 26. The appellant did not request a hearing. IAF, Tab 1 at 1. However, the administrative judge exercised her discretion and held a hearing for the limited purpose of conducting an in-camera review of the unredacted documents at issue in the appeal to confirm whether they contained PHI or PII. IAF, Tabs 53, 89, 91. Following the hearing, the administrative judge issued an initial decision sustaining the appellant’s removal. IAF, Tab 109, Initial Decision (ID). The administrative judge sustained all three specifications of each charge and found that the appellant failed to prove his affirmative defenses. ID at 6-21. The administrative judge also found that there was a nexus between the sustained charges and the efficiency of the service and that removal was within the tolerable limits of reasonableness. ID at 23-25. ¶4The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 2.3 The agency has not responded to the appellant’s petition. DISCUSSION OF ARGUMENTS ON REVIEW Charge 1 is sustained. ¶5Under HIPAA, a covered entity4 may not use or disclose PHI, unless such use or disclosure falls within certain categories of permitted uses and disclosures. See 45 C.F.R. § 164.502(a). Based on her review of copies of the documents submitted by the appellant to ORM on February 13, 23, and 27, 2014, the administrative judge found that they contained PHI, including unredacted 3 The appellant also filed a motion for leave to file an amended petition for review, which the Board granted. PFR File, Tabs 4-5. 4 As a Veterans Health Administration hospital, SAVAHCS is a covered entity under HIPAA. See, e.g., Parikh v. Department of Veterans Affairs , 116 M.S.P.R. 197, ¶ 25 n.6 (2011).3 veterans’ partial social security numbers, full names, addresses, medical diagnoses, dates of examinations, and medical providers’ names. ID at 6. In so finding, she credited testimony of the agency’s privacy officer that the documents provided to her for an in-camera review were copies of the same documents the appellant sent to ORM, which the privacy officer received after ORM returned them to SAVAHCS. Id.; IAF, Tab 89, Hearing Compact Disc (testimony of the privacy officer). Thus, the administrative judge found that the appellant’s contention, that he only sent redacted documents to ORM, was not credible or supported by the record evidence. ID at 5-6. ¶6On review, the appellant contends that the administrative judge improperly made credibility determinations based on the factors set forth in Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987), because the appellant did not testify and the decision was based on the written record. PFR File, Tab 2 at 4. We find that the administrative judge properly applied the principles of Hillen to this case, in which an in-camera review was conducted and the agency’s privacy officer testified concerning the chain of custody of the documents provided for review. See, e.g., Pollard v. Federal Bureau of Investigations , 705 F.2d 1151, 1153-54 (9th Cir. 1983) (finding that the court did not err by allowing testimony to authenticate documents during in-camera review). ¶7The administrative judge further found that the agency established that the appellant’s use and disclosure of PHI was unauthorized because it did not fall within the permitted uses and disclosures set forth under 45 C.F.R. § 164.502(a). ID at 7-10. Specifically, she found that “the appellant’s disclosure of PHI to ORM was unauthorized since the appellant was only permitted to access PHI in order to perform the official functions of his position.” ID at 10-11. We do not agree with this portion of the administrative judge’s analysis, however, because the appellant was not charged with improperly accessing PHI; he was charged with improperly disclosing it. IAF, Tab 11 at 69. 4 ¶8Even assuming, without finding, that the appellant was permitted to disclose the documents he submitted to ORM, a “minimum necessary” standard applies even to disclosures of PHI that would otherwise be permitted under HIPAA. IAF, Tab 11 at 69. That is to say, with certain exceptions not applicable here, reasonable efforts must be made to limit the PHI disclosed to the minimum necessary to accomplish the intended purpose of the disclosure. 45 C.F.R. § 164.502(b). In this case, the appellant’s February 13, 2014 disclosure contained numerous unredacted medical records, six of which contained patient diagnoses. IAF, Tab 11 at 105, 109-50. We find that the inclusion of these diagnoses was clearly unnecessary to accomplish the intended purpose of the appellant’s disclosure, i.e., to rebut the agency’s allegation that these documents were missing from the patients’ files. Id. at 105-08. Therefore, we find that this disclosure was in violation of HIPAA, as alleged. For the same reasons, we find that the appellant’s nearly identical disclosures of February 23 and 27, 2014 also violated HIPAA. IAF, Tab 11 at 69-70. ¶9On review, the appellant contends that the agency failed to prove this charge because the agency’s evidence file contained only redacted copies of the documents he sent. PFR File, Tab 2 at 9-10. He further contends that the initial decision was improperly decided based on the charges, proposal, ORM correspondence, and various agency handbooks and memoranda. Id. at 10. We disagree. The record reflects that the administrative judge’s findings were based on her in-camera review of the unredacted documents, the privacy officer’s testimony, and the written record. ID at 6. ¶10The appellant also reiterates his argument that there was no HIPAA violation because a risk assessment conducted by the Department of Veterans Affairs Network Security Operations Center (VANSOC) concluded that the disclosures did not meet the criteria for a data breach requiring notice to the affected veterans under 45 C.F.R. part 164, subpart D. PFR File, Tab 2 at 6-7. The administrative judge, however, considered this argument and found that,5 although the appellant’s disclosures did not rise to the level of a breach requiring notice under subpart D, they were still in violation of subpart E of the HIPAA regulations. ID at 11-12. We agree. Charge 2 is sustained. ¶11The Privacy Act prohibits disclosing any record,5 which is contained in a system of records, to any person, or to another agency, except pursuant to a written request, or with the prior approval of the subject of the record, unless the disclosure meets one of several provisions or exceptions. 5 U.S.C. § 552a(b); see 5 C.F.R. § 297.401. Thus, to show that the appellant violated the Privacy Act, the agency was required to prove that the appellant’s disclosure was unauthorized and that the record was disclosed from a system of records. Gill v. Department of Defense, 92 M.S.P.R. 23, ¶ 21 (2002). ¶12The administrative judge found that the appellant disclosed patient medical records that were a part of a Veterans Administration (VA) system of records.6 ID at 13. The administrative judge further found that the appellant’s disclosure did not fall within any of the 12 exceptions to the nondisclosure provisions of the Privacy Act. Id. On review, the appellant contends that the administrative judge failed to consider his argument below that his disclosure fell within the exception contained in 5 U.S.C. § 552a(b)(1), which permits disclosure “to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties.” PFR File, Tab 2 at 2, 7, 13. 5 A record is defined as any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph. 5 U.S.C. § 522a(a)(4). 6 The administrative judge found that the records at issue were a part of the agency’s National Patient Database—VA system of records. ID at 13. However, the evidence reflects that these documents were a part of the Agent Orange Registry—VA system of records. IAF, Tab 11 at 108, 191-298, Tab 12 at 143-148; 66 Fed. Reg. 3653-01 (Jan. 16, 2001).6 ¶13In support of his argument, the appellant relies on Howard v. Marsh , 785 F.2d 645 (8th Cir. 1986), in which the court held that disclosing an employee’s personnel records to an agency attorney and personnel specialist to gather information concerning a discrimination complaint that had been filed against the agency by that employee fell within the (b)(1) exception. PFR File, Tab 2 at 7, 13; IAF, Tab 37. Other than decisions of the U.S. Court of Appeals for the Federal Circuit, the decisions of the circuit courts are not binding on the Board, but the Board may follow such decisions if it is persuaded by their reasoning. See Bowman v. Small Business Administration , 122 M.S.P.R. 217, ¶ 13 n.8 (2015). We find the facts of Howard distinguishable and decline to follow it. ¶14Under the facts of this appeal, we find that ORM employees did not have a need for the records to perform their job duties for two reasons. First, despite the appellant’s arguments, IAF, Tab 37, the record does not reflect that he provided the documents at the request of ORM. In its letter rejecting the appellant’s request to amend his EEO complaint because it contained PII and PHI, ORM stated, “[t]here is no requirement that you submit documentation related to your claim of discrimination” and that, “[i]f documentation is needed by ORM to process your amendment it will be requested through official channels or you will be asked.” IAF, Tab 11 at 88. ¶15Second, the PHI and PII contained in the documents was not relevant to the appellant’s discrimination complaint in which he alleged that his supervisor discriminated against him by issuing him a 2-day suspension for, among other things, failing to document environmental appointments in the registry and scan letters into patients’ records. IAF, Tab 12 at 52, Tab 36 at 7-9. The appellant appears to have been providing the documents to ORM merely as evidence that he had properly performed these job duties and should not have been suspended. IAF, Tab 11 at 104-298. Thus, unredacted copies of these documents were not necessary to process the appellant’s EEO complaint. Accordingly, we find that7 ORM did not have a need for these records to process the appellant’s EEO complaint and the (b)(1) exception does not apply.7 Cf. Gill, 92 M.S.P.R. 23, ¶¶ 16, 22 (finding that the appellant’s disclosing confidential medical documents at an EEO counselor’s request to support the appellant’s claim that she was disparately treated concerning her medical accommodation request fell within the exception contained in 5 U.S.C. § 552a(b)(1) because the EEO counselor was acting within the scope of her duties and needed the records to perform such duties). ¶16We have also considered whether the appellant’s disclosures fell under the “routine use” exception of 5 U.S.C. § 552a(b)(3). Under this exception, the agency “may disclose information to the Equal Employment Opportunity Commission when requested in connection with investigations of alleged or possible discriminatory practices, examination of Federal affirmative employment programs, or for other functions of the Commission as authorized by law or regulation.” Privacy Act of 1974: Notice of Amendment of System of Records, 79 Fed. Reg. 8245, 8247 (Feb. 11, 2014). Although ORM was performing EEO functions, ORM is not the Equal Employment Opportunity Commission, and ORM did not request these documents. Nor were these documents exchanged through discovery in proceedings before the Equal Employment Opportunity Commission. We therefore find that this exception does not apply. Although not raised by either party, we have also considered whether Charge 2 must fail on the basis that the appellant did not disclose the records at issue to anyone outside the agency. Several courts have held that the Privacy Act only applies when an agency is disclosing records externally. E.g., Mauldin v. Napolitano , 7 It may very well have been that these documents would have been relevant at a later investigative stage in the complaint process; i.e., during the agency’s investigation or in the discovery process if the appellant had proceeded to adjudication of his complaint before the Equal Employment Opportunity Commission. Nonetheless, even if the appellant believed the documents were necessary to process the amendment of his EEO complaint, the agency was not out of bounds in informing the appellant that the documents needed to be redacted.8 No. 10-12826, 2011 WL 3113104, at * 3 (E.D. Mich. 2011); Williams v. Reilly, 743 F. Supp. 168, 175 (S.D.N.Y. 1990). We cannot agree with this interpretation of the law because it is inconsistent with the plain language of the statute, which concerns disclosure of records to “any person” without regard to whether such person is employed by the agency maintaining the system of records at issue. 5 U.S.C. § 552a(b). Furthermore, this interpretation of the Privacy Act violates the rule against surplussage; if internal agency disclosures were categorically not governed by the Act, then there would be no need for the exception at 5 U.S.C. § 552a(b)(1), which permits disclosures to agency employees with “a need for the record in the performance of their duties.” For these reasons, we agree with the administrative judge that the agency proved Charge 2. The appellant failed to prove his affirmative defense of reprisal for equal employment opportunity activity. 8 ¶17To prove an affirmative defense of retaliation for Title VII equal employment opportunity activity, an appellant must prove that his protected activity was at least a motivating factor in the action under appeal, and he may use various methods of proof and any type of admissible evidence to do so. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-23, 30. In this case, the administrative judge cited to various precedential cases advancing different analytical frameworks, and it is not clear to us which framework he actually applied to the appellant’s claim. ID at 20-21. Nevertheless, the gravamen of the administrative judge’s factual findings was that the appellant advanced essentially no credible evidence in support of his affirmative defense. 8 The appellant alleged that his removal constituted whistleblower reprisal for protected disclosures he made to ORM in his amendment to his EEO complaint. IAF, Tab 26 at 13. The administrative judge found that the appellant did not make a protected disclosure because any alleged disclosures to ORM violated the Privacy Act and HIPAA and disclosures prohibited by law are not protected under 5 U.S.C. § 2302(b)(8). ID at 19. On review, the appellant does not challenge this finding, and we discern no error with the administrative judge’s analysis of this claim as possible whistleblowing retaliation.9 ID at 21. This is tantamount to a finding that the appellant failed to prove that retaliation was a motivating factor in his removal, and we find no basis to disturb that conclusion on review. ¶18We have also considered whether the removal action was per se retaliation for participating in EEO activity, but we find that it was not. Participating in EEO activity enjoys very broad protection, to the point that an employee may not be disciplined even for bringing false or malicious claims of discrimination. See LaBate v. U.S. Postal Service , EEOC Appeal No. 01851097, 1987 WL 774785, at *3 (Feb. 11, 1987). However, activity protected under Title VII does not include activity that is unlawful. Netter v. Barnes , 908 F.3d 932, 939 (4th Cir. 2018). This includes the unlawful access and disclosure of protected information. Id. An agency may discipline an employee for engaging in unlawful conduct. The appellant failed to prove his affirmative defenses of due process violations or harmful procedural error. ¶19Below, the appellant alleged that the agency’s failure to provide him with a copy of the VANSOC risk assessment and use of redacted documents in the evidence file amounted to due process violations or harmful procedural error. ID at 16-17. The administrative judge found that the agency’s use of redacted documents in the evidence file was immaterial and did not prejudice the appellant because he was aware of the redacted information contained in the documents as he was the one who sent them to ORM. Id. She further found that the agency’s failure to provide a copy of the VANSOC risk analysis—which found that the appellant’s disclosures did not meet the criteria for a data breach requiring notice to the affected veterans—was immaterial, being irrelevant to a potential violation of HIPAA Subpart E or the Privacy Act. ID at 17. Thus, she found that the appellant failed to prove harmful procedural error or that the agency committed due process violations. ¶20On review, the appellant reiterates his arguments that he was denied the opportunity to respond to the VANSOC determination, which was not included in10 the proposal. PFR File, Tab 2 at 16-20. The record reflects that the deciding official considered the appellant’s argument in his response to the proposed removal that he did not violate HIPAA because there was no significant harm to the veterans and the data breach did not require notice. IAF, Tab 11 at 9-10. Under these circumstances, we agree with the administrative judge that the deciding official’s consideration of the VANSOC determination did not amount to a due process violation because the appellant was aware of the information contained in the VANSOC determination and he had a chance to address it in his response. We further find that any procedural error that the agency made in this regard did not affect the outcome of its decision and therefore did not rise to the level of harmful error. See Hope v. Department of the Army , 108 M.S.P.R. 6, ¶ 8 (2008) (“Harmful error cannot be presumed; an agency error is harmful only where the record shows that it was likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error.”). The agency established nexus, and the penalty of removal was within the tolerable limits of reasonableness. ¶21The appellant disputes the administrative judge’s finding that the agency proved nexus. PFR File, Tab 2 at 22-24. His arguments, however, amount to mere disagreement with the administrative judge’s findings that the agency proved its charges and do not provide a basis for reversal. We also find unpersuasive the appellant’s argument that the agency failed to show that his disclosures affected his job performance or management’s trust and confidence in his job performance. Id. at 22. It is well settled that there is sufficient nexus between an employee’s conduct and the efficiency of the service when, as here, the conduct occurred at work. See, e.g., Parker v. U.S. Postal Service , 819 F.2d 1113, 1116 (Fed. Cir. 1987). ¶22Regarding the appropriateness of the penalty, the appellant argues that the administrative judge erred in finding that the deciding official properly11 considered the Douglas factors. PFR File, Tab 2 at 24-26. In determining an appropriate penalty, an agency must review relevant mitigating factors, also known as the Douglas factors pursuant to Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981). The Board in turn defers to the agency’s discretion in exercising its managerial function of maintaining employee discipline and efficiency. See Davis v. U.S. Postal Service , 120 M.S.P.R. 457, ¶ 6 (2013). Thus, the Board will modify an agency’s penalty only when it finds that the agency failed to weigh the relevant factors or that the imposed penalty clearly exceeded the bounds of reasonableness. Id. ¶23The administrative judge deferred to the agency’s decision to remove the appellant after finding that the deciding official considered the relevant Douglas factors.9 ID at 23-25. On review, the appellant contends that the agency improperly considered his duties as an aggravating factor. PFR File, Tab 2 at 24. We disagree. To the contrary, the agency’s Douglas factor analysis properly included consideration of the nature and seriousness of the offense and its relation to the appellant’s duties, position, and responsibilities. See Douglas, 5 M.S.P.R. at 305. ¶24Finally, we find unpersuasive the appellant’s argument that the agency failed to consider the VANSOC report. PFR File, Tab 4 at 4-6. In his decision letter, the deciding official noted that VANSOC’s determination—that notifying the affected veterans of the data disclosure was not necessary—did not alter the fact that the appellant unlawfully released PHI/PII to ORM. IAF, Tab 11 at 9-10. To the extent the appellant’s remaining arguments amount to disagreement with the administrative judge’s findings that the agency proved its charges, PFR File, Tab 2 at 25-26, Tab 4 at 5, we find that such arguments do not provide a basis for 9 The administrative judge also found that the deciding official properly considered the appellant’s prior discipline, after finding that such discipline met the criteria set forth in Bolling v. Department of the Air Force , 9 M.S.P.R. 335 (1981). ID at 22, 24. The appellant does not challenge this finding on review, and we discern no error in the administrative judge’s analysis. 12 reversal, see, e.g., Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions); Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same). The appellant’s remaining arguments do not provide a basis for reversal. ¶25The appellant argues that he was prejudiced because the administrative judge conducted an in-camera review of the unredacted documents, which he did not attend, and he was not able to view the documents until over 1 year and 10 months after he was removed. PFR File, Tab 2 at 26. The record reflects that on the evening before the hearing, the appellant requested to continue the hearing citing health reasons. IAF, Tab 86. The administrative judge denied the appellant’s motion, finding that he failed to establish good cause. IAF, Tab 87. ¶26Whether good cause exists to postpone a hearing is determined by the unique circumstances of each case and rests within the administrative judge’s sound discretion. Keay v. U.S. Postal Service , 57 M.S.P.R. 331, 335 (1993). The record reflects that, although the appellant had been approved as a witness, he had indicated in his pleadings his desire not to testify. IAF, Tabs 80-81. Moreover, the brief hearing was conducted for the limited purpose of allowing the administrative judge to review the unredacted documents. IAF, Tab 91. Under these circumstances, we find that the administrative judge did not abuse her discretion in denying the appellant’s request to postpone the hearing. Additionally, we find unavailing the appellant’s argument that he was not afforded an opportunity to review the documents in a timely manner. The record reflects that he was repeatedly afforded the opportunity to review the documents, but he declined to do so. IAF, Tab 11 at 73, Tab 12 at 152-53, Tabs 49, 75, 79. 13 We deny the appellant’s motions for leave to submit additional pleadings. ¶27 The appellant has filed numerous motions to submit additional pleadings on review. PFR File, Tabs 8, 10, 12-13, 15, 17, 19, 21, 23-24, 26, 28, 32. 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. 5 C.F.R. § 1201.114(a). For the Board to consider a party’s pleading, other than those set forth above, the party must describe the nature of and need for the pleading. Id. If a party wishes to submit a pleading after the record has closed, i.e., following the expiration of the period for filing the reply to the response to the petition for review, 5 C.F.R. §1201.114(k), the party also must show that, despite the petitioner’s due diligence, the evidence therein was not readily available before the record closed, see 5 C.F.R. § 1201.115(d). Here, the record closed on October 3, 2016, ten days after the agency’s September 23, 2016 deadline for filing its response to the appellant’s petition. PFR File, Tab 3. ¶28 The appellant has filed motions for leave to demonstrate that the administrative judge was biased as well as a motion for leave to submit an affidavit in support of such claims. PFR File, Tabs 8, 13, 17. We deny these motions because they were filed after the close of the record and the appellant has not shown that they are based on new and material evidence that was unavailable prior to the close of the record, despite his due diligence. We similarly deny the appellant’s motion to show that the administrative judge erred in interpreting Federal regulations. PFR File, Tab 12. In this motion, the appellant asserts that four pieces of evidence on which the administrative judge relied are not supported by Federal regulation or case law and impel reversing the initial decision. Id. at 5. The appellant has not shown that such arguments are based on new and material evidence. Regardless, having reviewed the record, we discern no error in the administrative judge’s analysis that would warrant reversing the initial decision.14 ¶29The appellant also filed a motion for leave to file a copy of the VANSOC risk analysis, which he contends he filed below but does not appear in the repository as part of the record. PFR File, Tab 10. We deny this motion because the record reflects that this document and references to it already are part of the record below.10 IAF, Tab 96 at 6; PFR File, Tab 24. The appellant also has filed a motion for leave to show that he provided the documents at issue at ORM’s request. PFR File, Tab 15. In his pleading, he asserts that his disclosures to ORM were not unauthorized because ORM requested them. Id. at 4. However, such an argument was made below, IAF, Tab 37, and the appellant has not shown that his motion is based on any new and material evidence. Accordingly, we deny the appellant’s motion. ¶30Based on the foregoing, we affirm the initial decision, as modified, sustaining the appellant’s removal. 10 The appellant has also filed additional motions seeking to introduce evidence and argument showing that the agency determined that his disclosures did not rise to the level of a breach. PFR File, Tabs 19, 21, 23, 26. Such evidence appears to already be part of the record, and, in any event, would not affect the outcome of the appeal because, as the administrative judge concluded, the fact that the appellant’s impermissible disclosures did not rise to the level of a breach requiring notice under HIPAA subpart D does not mean that his disclosures did not violate subpart E. For the same reason, we deny the appellant’s motion for leave to submit Pro-Publica records showing that the agency did not report any HIPAA violations in 2014 as such information is not material and would not affect the outcome of the appeal. PFR File, Tab 32. Finally, the appellant has filed a motion for leave to file an additional pleading concerning his argument that he did not violate HIPAA based on the VANSOC determination, which found that his disclosures did not meet the criteria for a data breach requiring notice to the affected veterans. PFR File, Tab 28. Such an argument, however, was considered and rejected by the administrative judge, ID at 11-12, and the appellant has not shown that his motion is based on any new and material evidence or argument that was unavailable despite his due diligence when the record closed. Accordingly, we deny his motion. See 5 C.F.R. § 1201.114(a), (k). 15 NOTICE OF APPEAL RIGHTS11 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 11 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.16 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2)Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any17 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. §2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3)Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s18 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.12 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. §7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 12 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 19 Contact information for the courts of appeals can be 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	Ramirez_Alfonso_DE-0752-14-0482-I-1_Final_Order.pdf	2023-12-08	ALFONSO G. RAMIREZ v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-0752-14-0482-I-1, December 8, 2023	DE-0752-14-0482-I-1	NP
2,628	https://www.mspb.gov/decisions/nonprecedential/Harrelson_James_R._AT-0752-17-0697-I-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JAMES R. HARRELSON, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-0752-17-0697-I-2 DATE: December 7, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 M. Jefferson Euchler , Virginia Beach, Virginia, for the appellant. Sophia Haynes , Decatur, Georgia, for the agency. William Robert Boulware , Montgomery, Alabama, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, 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 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	Harrelson_James_R._AT-0752-17-0697-I-2_Final_Order.pdf	2023-12-07	JAMES R. HARRELSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-17-0697-I-2, December 7, 2023	AT-0752-17-0697-I-2	NP
2,629	https://www.mspb.gov/decisions/nonprecedential/Fernandez_Rosa_Murga_AT-0714-18-0469-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ROSA MURGA FERNANDEZ, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-0714-18-0469-I-1 DATE: December 7, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Rosa Murga Fernandez , Miami, Florida, pro se. Joved Gonzalez-Rivera , Mayaguez, Puerto Rico, 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 removal appeal for lack of jurisdiction due to her waiver of her Board appeal rights in a last chance agreement (LCA). Generally, we 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). ¶2The administrative judge found that the appellant failed to nonfrivolously allege that she did not violate the LCA, that the agency acted in bad faith, or that she did not voluntarily enter into the agreement. On review, the appellant argues that she was “coerced to believe the LCA was a good thing.” Petition for Review (PFR) File, Tab 1 at 2. However, the administrative judge properly considered and rejected the appellant’s argument below that she was coerced because she was under mental duress due to the possibility of losing her job when she signed the LCA. See Bahrke v. U.S. Postal Service , 98 M.S.P.R. 513, ¶ 12 (2005) (stating that the fact that an employee must choose between two unpleasant alternatives, such as signing an LCA or facing removal, does not render his choice involuntary). ¶3Regarding her claim that she did not violate the LCA, the administrative judge found that the appellant’s jurisdictional submissions did not address the agency’s specific factual allegations supporting its removal decision. To the extent the appellant now contests the specifications in the agency’s removal decision, PFR File, Tab 1 at 2-3, the Board need not consider such arguments for the first time on review, see Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (stating that the Board will not consider evidence or 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). Even considering such arguments, however, the appellant has not2 raised nonfrivolous allegations of Board jurisdiction because she only challenges specification 3 of charge A, to which she ultimately admits that she “erred and didn’t log [the complaint] [into] the tracking system.”2 PFR File, Tab 1 at 2. After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If 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 The agency’s removal action was taken pursuant to 38 U.S.C. § 714. We find that this does not affect the outcome of the instant appeal. The dispositive issue in this appeal is jurisdictional and remains governed by 5 C.F.R. § 1201.56(b)(2)(i)(A). We agree with the administrative judge that the appellant has failed to establish Board jurisdiction over her 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.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	Fernandez_Rosa_Murga_AT-0714-18-0469-I-1_Final_Order.pdf	2023-12-07	ROSA MURGA FERNANDEZ v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-18-0469-I-1, December 7, 2023	AT-0714-18-0469-I-1	NP
2,630	https://www.mspb.gov/decisions/nonprecedential/Reid_Michael_CH-0752-18-0122-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL EUGENE REID, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER CH-0752-18-0122-I-1 DATE: December 7, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael Eugene Reid , Indianapolis, Indiana, pro se. Daniel C Mullenix and Pamela Langston-Cox , Chicago, Illinois, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his removal appeal as untimely. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based 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). BACKGROUND ¶2Effective July 8, 2016, the agency removed the appellant from his position as a GS-06 Secretary with the Internal Revenue Service. Initial Appeal File (IAF), Tab 8 at 14. On December 11, 2017, the appellant filed a Board appeal challenging his removal. IAF, Tab 1. The administrative judge issued an order informing the appellant that his appeal appeared to be untimely filed and directing him to file evidence and argument to prove either that his appeal was timely filed or that good cause existed for his untimely filing. IAF, Tab 3. The appellant’s response to the timeliness order was due on January 8, 2018; however, he did not file a response to the order. Id. at 1, 4. On January 17, 2018, the agency moved to dismiss the appeal as untimely filed without good cause shown. IAF, Tab 8. On January 22, 2018, the appellant filed a submission that did not address the timeliness issue.2 IAF, Tab 9. ¶3The administrative judge issued an initial decision dismissing the appeal. IAF, Tab 11, Initial Decision (ID). The administrative judge found that the appeal was untimely filed and that the appellant failed to establish good cause for his delay in filing. ID at 1-4. The appellant has filed a petition for review. 2 The appellant’s submission consisted of a memorandum dated March 20, 2012, and an email dated March 9, 2011. IAF, Tab 9.2 Petition for Review (PFR) File, Tab 1. The agency has filed a response in opposition to the appellant’s petition.3 PFR File, Tab 5. ANALYSIS The appellant’s submission on review provides no basis for granting the petition for review. ¶4In support of his petition for review, the appellant has submitted a January 26, 2018 letter from agency counsel asking him whether he was seeking to settle this case. PFR File, Tab 3. The Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record closed despite due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). The Board ordinarily 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). To constitute new and material evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed. Grassell v. Department of Transportation , 40 M.S.P.R. 554, 564 (1989). 3 After the record closed on review, the appellant moved for permission to submit additional evidence. PFR File, Tab 9. In a letter acknowledging the appellant’s motion, the Clerk of the Board advised him that the Board’s regulations do not provide for such pleadings, and that, for the Board to consider the proffered submission, he must describe the nature and need for it, and also must show that the evidence was not readily available before the record closed. PFR File, Tab 10; 5 C.F.R. § 1201.114(a) (5), (k). The appellant is seeking to submit evidence pertaining to his prior Board appeals and other actions against his former employing agency, and he asserts that this evidence will demonstrate that his removal was the result of “a pattern of retaliation” by that agency. PFR File, Tab 9. The appellant also seeks to introduce congressional inquiries and “other federal documents specifically related to the egregious actions of the agency.” Id. Not only has the appellant failed to show that this evidence was not readily available before the record closed, but his evidence, as described in his proffer, is also not relevant to the outcome of his petition for review, as it does not relate to the timeliness of his appeal. Therefore, we DENY the appellant’s motion to submit additional evidence.3 ¶5Although the January 26, 2018 letter is new, in that it post-dates the close of the record below, it is not material to the issue on review, i.e., whether the administrative judge correctly dismissed this appeal as untimely filed without good cause shown for the filing delay. Therefore, it provides no basis to grant the appellant’s petition for review. See Russo, 3 M.S.P.R. at 349. The appellant’s removal appeal is untimely. ¶6Generally, an appeal must be filed with the Board no later than 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. 5 C.F.R. § 1201.22(b)(1). The appellant bears the burden of proving by a preponderance of the evidence that his appeal is timely. 5 C.F.R. § 1201.56(b)(2)(i)(B). ¶7The record shows that, on June 28, 2016, the appellant received the agency’s decision to remove him, effective July 8, 2016. IAF, Tab 8 at 12. Thus, under the Board’s regulations, the appellant was required to file his removal appeal on or before August 7, 2016, 30 days after the effective date of his removal. 5 C.F.R. § 1201.22(b)(1). The appellant did not file this appeal until December 11, 2017, more than 16 months after the filing deadline. IAF, Tab 1. Therefore, the administrative judge properly found that the appeal was untimely filed. The appellant has not shown good cause for the filing delay. ¶8If an appellant fails to timely submit his 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 he exercised due diligence or ordinary prudence under the particular circumstances of the case. Marcantel v. Department of Energy , 121 M.S.P.R. 330, ¶ 10 (2014). To determine if 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, and4 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 unfavorable casualty or misfortune which similarly shows a causal relationship to his inability to file a timely petition for appeal. 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). ¶9Applying this standard, the administrative judge noted that the Board has found shorter filing delays significant.4 ID at 3 (citing Summerset v. Department of the Navy, 100 M.S.P.R. 292, ¶ 7 (2005) (finding that a 33-day filing delay is significant)). The administrative judge also considered the appellant’s pro se status, but found that his self-representation was not a reason for the delay, as he did not deny receiving the decision letter that notified him of deadline for filing a removal appeal with the Board. ID at 4. The administrative judge further found that the appellant did not present any evidence of unavoidable casualty or misfortune that caused the late filing. Id. Therefore, the administrative judge found that the appellant failed to establish good cause for his delay in filing. Id. ¶10In his petition for review, the appellant does not address the timeliness of his removal appeal. PFR File, Tab 1. Instead, he argues that he had an excellent work record and was wrongfully terminated based on false allegations by his former employing agency. Id. He also appears to assert that the administrative judge erred in dismissing his appeal before the February 9, 2018 deadline for filing a response to the agency’s January 26, 2018 letter inquiring about his interest in settling this appeal. Id. These arguments have no bearing on whether he had good cause for the untimely filing of his appeal, and he has offered no explanation for his delay in filing this appeal. Accordingly, we affirm the initial decision dismissing the appeal as untimely filed without good cause. 4 Although the administrative judge mistakenly stated that the length of the filing delay in this case was 17 months, rather than 16 months, this error provides no reason for disturbing the initial decision because a 16-month delay is also significant. ID at 3.5 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). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.6 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any7 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s8 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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	Reid_Michael_CH-0752-18-0122-I-1_Final_Order.pdf	2023-12-07	MICHAEL EUGENE REID v. DEPARTMENT OF THE TREASURY, MSPB Docket No. CH-0752-18-0122-I-1, December 7, 2023	CH-0752-18-0122-I-1	NP
2,631	https://www.mspb.gov/decisions/nonprecedential/Wood_Danny_CB-7121-18-0001-V-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DANNY WOOD, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER CB-7121-18-0001-V-1 DATE: December 7, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sherry J. Downer , Tucson, Arizona, for the appellant. Lauren J. Johnson , San Diego, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a request for review of an arbitration decision, which affirmed his removal for absence without leave and failure to follow a leave restriction letter. For the reasons that follow, we DENY the appellant’s request for review and AFFIRM the arbitrator’s decision, except as MODIFIED by this order to find that the agency proved the charges and the reasonableness of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the penalty and that the appellant failed to prove his affirmative defense of status-based disability discrimination. BACKGROUND ¶2By letter dated March 21, 2016, the agency proposed to remove the appellant from his GS-9 Mission Support Specialist position for nine specifications of being absent without leave (AWOL) and six specifications of failure to follow a leave restriction letter. Request for Review (RFR) File, Tab 1 at 720-24. In a decision letter dated June 1, 2016, the deciding official found that the appellant’s removal was warranted but offered him a last chance agreement (LCA), which would have held his removal in abeyance for 3 years and allowed him to serve a 21-day suspension in lieu of removal. Id. at 725-28, 737-40. A union attorney sought to negotiate the terms of the LCA on the appellant’s behalf beginning on June 14, 2016. Id. at 110, 392-93, 741-45, 749-52. The agency declined to alter the terms of the LCA but extended the deadline for the appellant to accept the LCA until July 14, 2016. Id. at 729-31, 746-47. The appellant did not accept the LCA, and the agency effected his removal on or about July 15, 2016. Id. at 367, 369, 598. ¶3The union grieved the appellant’s removal action and invoked arbitration on his behalf, arguing as follows: (1) the leave restriction memorandum was unlawful and resulted in harmful error mandating reversal; and (2) the agency discriminated against the appellant on the basis of disability by failing to reasonably accommodate him and by removing him for disability-related misconduct. Id. at 112-40. After holding a hearing, the arbitrator issued an arbitration decision denying the appellant’s grievance. Id. at 39-102. The appellant has requested review of the arbitrator’s decision, and the agency has responded. RFR File, Tabs 1, 4-5.2 ANALYSIS ¶4The Board has jurisdiction to review an arbitrator’s decision under 5 U.S.C. § 7121(d) when the following criteria are met: (1) the subject matter of the grievance is one over which the Board has jurisdiction; (2) the appellant either raised a claim of discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in connection with the underlying action or raises a claim of discrimination in connection with the underlying action under 5 U.S.C. § 2302(b)(1) for the first time with the Board if such allegations could not be raised in the negotiated grievance procedure; and (3) a final decision has been issued. Jones v. Department of Energy , 120 M.S.P.R. 480, ¶ 8 (2013), aff’d, 589 F. App’x 972 (Fed. Cir. 2014); 5 C.F.R. § 1201.155(a)(1), (c). In the instant case, each of the necessary conditions has been met, and we therefore find that the Board has jurisdiction to review the arbitration decision. ¶5The standard of the Board’s review of an arbitrator’s award is limited; such awards are entitled to a greater degree of deference than initial decisions issued by the Board’s administrative judges. Sadiq v. Department of Veterans Affairs , 119 M.S.P.R. 450, ¶ 5 (2013). The Board will modify or set aside such an award only when the arbitrator has erred as a matter of law in interpreting a civil service law, rule, or regulation. Id. Even if the Board disagrees with an arbitrator’s decision, absent legal error, the Board cannot substitute its conclusions for those of the arbitrator. Id. Thus, the arbitrator’s factual determinations are entitled to deference unless the arbitrator erred in her legal analysis, for example, by misallocating the burdens of proof or employing the wrong analytical framework. Id. Nevertheless, the Board can defer to the arbitrator’s findings and conclusions only if the arbitrator makes specific findings on the issues in question. Id. Further, the Board may make its own findings when the arbitrator failed to cite any legal standard or employ any analytical framework for her evaluation of the evidence. Id.3 The arbitrator did not make specific findings regarding whether the agency proved the charges, and we modify the arbitration award to find that the agency did so. ¶6As noted above, the agency charged the appellant with AWOL and failure to follow a leave restriction letter. RFR File, Tab 1 at 720-22. The arbitrator found that these charges must be reviewed together because they arose from the same misconduct. Id. at 90-91. However, she did not determine how the charges should be merged, and we therefore make our own findings on this issue. See Sadiq, 119 M.S.P.R. 450, ¶ 5. ¶7The Board will “merge” charges if they are based on the same conduct and proof of one charge automatically constitutes proof of the other charge. Powell v. U.S. Postal Service , 122 M.S.P.R. 60, ¶ 10 (2014). Here, the agency charged the appellant with AWOL on December 22, 2015, and January 8, 13-14, 20, and 28, 2016, because he failed to provide medical documentation regarding his absences on those dates pursuant to the leave restriction letter. RFR File, Tab 1 at 680, 688, 694, 700, 705, 709, Tab 4 at 28, 38 -39. The agency also charged him with failure to follow the leave restriction letter on those same six occasions. RFR File, Tab 1 at 721-22. Therefore, we find that it is appropriate to merge the six specifications of failure to follow the leave restriction letter into the AWOL charge. See McNab v. Department of the Army , 121 M.S.P.R. 661, ¶ 4 n.3 (2014) (finding that the administrative judge properly merged into the AWOL charge specific instances of failure to follow leave restriction letter procedures that were also listed under the AWOL charge); Westmoreland v. Department of Veterans Affairs, 83 M.S.P.R. 625, ¶ 6 (1999) (merging charges of failure to follow leave-requesting procedures into the charge of AWOL when the charge of AWOL was based solely on the appellant’s failure to follow the leave requesting procedures), aff’d, 19 F. App’x 868 (Fed. Cir. 2001), overruled on other grounds as recognized in Pickett v. Department of Agriculture , 116 M.S.P.R. 439, ¶ 11 (2011). Because the failure to follow the leave restriction letter charge merges4 into the AWOL charge, proof of the AWOL charge will constitute proof of the failure to follow the leave restriction letter charge. See Powell, 122 M.S.P.R. 60, ¶ 10. ¶8To prove a charge of AWOL, an agency must show by preponderant evidence that the employee was absent without authorization and, if the employee requested leave, that the request was properly denied.2 Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 28 (2015), overruled on other grounds by Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25. Here, although the arbitrator found that the agency removed the appellant for “just and sufficient cause,” she did not cite any legal standard, employ any analytical framework for her evaluation of the evidence, or consider whether the agency proved either charge.3 RFR File, Tab 1 at 90-102. Therefore, the Board herein makes its own findings as to whether the agency proved the charges. See Sadiq, 119 M.S.P.R. 450, ¶ 5. ¶9In support of the AWOL charge, the agency alleged the following: on December 22, 2015, the appellant failed to report for duty and did not contact his supervisor until 3.5 hours after the beginning of his scheduled shift, resulting in 3.5 hours of AWOL; on January 8, 13-14, 20, 28, and February 1 and 2, 2016, he failed to report for duty as scheduled without authorization and, as a result, was charged 8 hours of AWOL for each day; and, on February 18, 2016, he failed to report for duty at his scheduled time and, after the agency denied his request for annual leave because he needed more sleep, reported for duty approximately 1 hour after his scheduled start time, resulting in 1 hour of AWOL. RFR File, 2 A preponderance of the evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). 3 In the background section of the arbitrator’s decision, the arbitrator set forth the parties’ arguments, which included citation to legal standards and argument regarding whether the agency proved the charges. RFR File, Tab 1 at 56-90. However, her own analysis is devoid of any reference to the applicable legal standards and does not address whether the agency proved the charges. Id. at 90-98. 5 Tab 1 at 720-21. The agency conceded, and the record reflects, that the specification alleging that the appellant was AWOL on February 2, 2016, was in error. RFR File, Tab 1 at 360-61, 715, Tab 4 at 39. Therefore, we do not sustain that specification. It is undisputed, however, that the appellant was absent on the other dates and for the other hours for which he was charged AWOL and that the agency did not authorize those absences. RFR File, Tab 1 at 686, 692, 698, 703, 708, 715, 719. Thus, we next determine whether the appellant requested leave for those absences and, if so, whether the agency properly denied his requests. See Savage, 122 M.S.P.R. 612, ¶ 28. ¶10The appellant requested sick leave or “emergency annual leave” due to a “flare up (disability related)” or illness after his December 22, 2015, January 8, 13-14, 20, 28, and February 1, 2016 absences and requested 1 hour of annual leave on February 18, 2016. RFR File, Tab 1 at 681, 685, 688, 690, 694 -95, 701, 705-06, 710, 717, Tab 4 at 158. According to the agency, it properly denied the appellant’s requests for leave on these dates because he failed to comply with an August 6, 2015 leave restriction letter, which required him to request nonemergency leave 3 workdays in advance and to provide, within 3 days of returning from a medical -related absence, a medical certification containing the date he was seen by a healthcare provider, the dates and the reason he was incapacitated for work, and the provider’s name, telephone number, signature, and date. RFR File, Tab 1 at 678-79, Tab 4 at 28, 38 -39. The agency argued that the appellant did not submit any medical documentation regarding his absences on January 8, 14, 20, 28, or February 1, 2016, and that, although he submitted notes regarding his December 22, 2015 and January 13, 2016 absences, they were insufficient because they did not give any reason for excusal or state that he was incapacitated for work.4 RFR File, Tab 4 at 38-39. The agency further argued 4 Regarding his December 22, 2015 absence, the appellant submitted a note from the Yuma Vet Center stating that he “was present at the Yuma Vet Center on Tuesday, December 22, 2015, to initiate services with this agency.” RFR File, Tab 1 at 683. Regarding his January 13, 2016 absence, he submitted a note stating that he checked in6 that it properly denied the appellant’s request for 1 hour of annual leave on February 18, 2016, which he made 5 minutes before the start of his shift, because he did not make the request 3 days in advance, as required by the leave restriction letter, or submit medical documentation of incapacitation. Id. at 40. ¶11The appellant did not dispute the agency’s contention that he failed to timely request leave or submit medical documentation in accordance with the leave restriction letter but argued that the charges could not be sustained because the leave restriction letter was unlawful. Id. at 112-19. Specifically, he alleged that the requirement in the leave restriction letter that he submit an application for leave accompanied by an acceptable medical certification within 3 days following his return to work from an absence for medical reasons violated an Office of Personnel Management (OPM) regulation, 5 C.F.R. § 630.405(b), which allows an employee between 15 and 30 days to provide medical documentation regarding an absence. RFR File, Tab 1 at 112-14. He argued that the agency’s failure to comply with the time provisions of section 630.405(b) constituted harmful error under 5 U.S.C. § 7701(c)(2)(A) and warranted reversal of his removal. Id. at 115-19. ¶12The arbitrator found that, although the appellant was on notice of the requirements of the leave restriction letter, he failed to submit adequate medical documentation in connection with any of his absences at any time within 30 days from the date of his absence. Id. at 94-98. She considered the appellant’s contention that the leave restriction letter violated OPM’s regulation and found that, although the 3-day requirement in the leave restriction letter was inconsistent with the regulation, the inconsistency was not harmful error or prejudicial to the appellant because the record did not show that he would have provided sufficient medical documentation, even if he had been given 30 days to for a 10 a.m. appointment using the automated check-in system at the Yuma Community Based Outpatient Clinic. Id. at 697. 7 do so.5 Id. Although the appellant disagrees with these findings on review, id. at 11-20, he has not shown that the arbitrator erred as a matter of law in interpreting civil service law, rule, or regulation. Therefore, we defer to her conclusions. Sadiq, 119 M.S.P.R. 450, ¶ 5. ¶13It is unclear from the record whether the appellant had accrued sick or annual leave balances at the time of the AWOL charges at issue in this appeal between December 2015 and February 2016. RFR File, Tab 1 at 678 (reflecting that, as of August 6, 2015, the appellant had a balance of 12.2 hours of annual leave and 13.3 hours of sick leave). The Board has found, however, that whether an employee has an accrued annual leave balance is irrelevant to the question of whether the agency abused its discretion in denying his request for leave. Roby v. Department of Justice , 59 M.S.P.R. 426, 429 (1993). An employee must request approval to take annual leave in accordance with agency policies; he cannot simply demand it. Id. Because we defer to the arbitrator’s finding that the appellant did not comply with the leave restriction letter in connection with his absences on December 22, 2015, January 8, 13-14, 20, 28, and February 1 and 18, 2016, we find that the agency properly denied his requests for annual leave and “emergency annual leave” on those dates. ¶14As noted above, in addition to requesting “emergency annual leave” for his absences on December 22, 2015, January 8, 13 -14, 20, 28, and February 1, 2016, 5 As the agency points out on review, the alleged impropriety of the leave restriction letter does not come within the harmful error rule because it does not concern the procedures that the agency applied in arriving at its decision to remove him. RFR File, Tab 4 at 10-11; see 5 U.S.C. § 7701(c)(2)(A) (providing that an agency action may not be sustained if an appellant “shows harmful error in the application of the agency’s procedures in arriving at such decision”); Boatman v. Department of Justice , 66 M.S.P.R. 58, 63 (1994). Rather, the alleged impropriety of the leave restriction letter, which concerns the circumstances under which the charged misconduct occurred, is relevant to the merits of the action or to the reasonableness of the penalty imposed. See Boatman, 66 M.S.P.R. at 63. It appears that the arbitrator properly considered the appellant’s challenge to the propriety of the leave restriction letter as it related to the charges and not whether it constituted harmful error under 5 U.S.C. § 7701(c)(2)(A). RFR File, Tab 1 at 93-99. 8 the appellant also requested sick leave or informed the agency that his absence was due to illness or a disability-related “flare up.” RFR File, Tab 1 at 681, 688, 690, 694-95, 701, 705-06, 710, Tab 4 at 158. Pursuant to OPM’s regulations, “[a]n agency may grant sick leave only when the need for sick leave is supported by administratively acceptable evidence.” 5 C.F.R. § 630.405(a). While an employee’s self-certification of the reasons for his absence may be administratively acceptable in some circumstances, “[a]n agency may also require a medical certificate or other administratively acceptable evidence as to the reason for an absence for any of the purposes described in § 630.401(a) for an absence in excess of 3 workdays, or for a lesser period where the agency determines that it is necessary.” Id. Section 631.401(a) provides, among other things, that an agency must grant sick leave to an employee when he receives medical treatment or is incapacitated for the performance of his duties by physical or mental illness. Generally, an employee must “provide administratively acceptable evidence or medical certification for a request for sick leave no later than 15 calendar days after the date the agency requests such medical certification” but may have up to 30 days if 15 days is not “practicable under the particular circumstances.” 5 C.F.R. § 630.405(b). The regulations further provide that an employee who fails to submit the “required evidence or medical certification within the specified time period is not entitled to sick leave.” Id. ¶15Here, the agency was well within its right to require medical documentation from the appellant and, with the exception of the 3-day requirement discussed above, the requirements set forth in the leave restriction letter were reasonable and consistent with the regulations. RFR File, Tab 1 at 678-79; see 5 C.F.R. §§ 630.401, 630.405(a). Although the 3-day requirement was inconsistent with the regulations, the agency did not deny any request for leave because of the appellant’s failure to submit medical documentation within that timeframe. Rather, the agency memoranda documenting these absences each state that, pursuant to the leave restriction letter, the appellant would be charged AWOL9 “until such time that he provides medical documentation of his illness,” or words to that effect. RFR File, Tab 1 at 680, 688, 694, 700, 705, 709. As the arbitrator found, the appellant did not submit adequate medical documentation within 30 days of any absence, id. at 98, and the March 21, 2016 proposed removal indicates that “to date” the appellant still had not submitted adequate medical documentation of his absences, id. at 722-23. Because the appellant failed to comply with the valid provisions of the leave restriction letter by submitting acceptable medical documentation within 30 days of his absence or at any time prior to his proposed removal, we find that the agency properly denied his requests for sick leave on December 22, 2015, January 8, 13-14, 20, 28, and February 1, 2016. ¶16In light of the foregoing, we find that the agency proved that the appellant was AWOL on December 22, 2015, and on January 8, 13 -14, 20, 28, February 1 and 18, 2016, and we therefore sustain the charge of AWOL. The failure to follow the leave restriction letter charge is likewise proven and sustained by virtue of its merger into the AWOL charge. See Powell, 122 M.S.P.R. 60, ¶ 10. The arbitrator correctly found that the agency established nexus between the charges and the efficiency of the service. ¶17In addition to the requirement that the agency prove its charge against the appellant, the agency also must prove that there is a nexus, i.e., a clear and direct relationship between the articulated grounds for the adverse action and either the appellant’s ability to accomplish his duties satisfactorily or some other legitimate Government interest. Powell, 122 M.S.P.R. 60, ¶ 11. The arbitrator appeared to find that the agency established nexus, stating that the agency removed the appellant for reasons that promoted the efficiency of the service and explaining that the appellant’s AWOL required the agency to use staff for “welfare checks” on him and to cover his important work. RFR File, Tab 1 at 98-99. Id. We discern no legal error in the arbitrator’s finding, which the appellant has not challenged on review, and we therefore defer to it. See Adams v. Department of10 Labor, 112 M.S.P.R. 288, ¶ 8 (2009) (holding that any sustained charge of AWOL is inherently connected to the efficiency of the service as an essential element of employment is to be on the job when one is expected to be there). The arbitrator correctly found that the appellant did not prove his affirmative defense of disability discrimination based on failure to accommodate. ¶18The Rehabilitation Act requires an agency to make a reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship on its business operations. Clemens v. Department of the Army , 120 M.S.P.R. 616, ¶ 17 (2014). While an individual with a disability may request a modification to the work environment or adjustments in how and when a job is performed due to a medical condition, this request does not necessarily mean that the employer is required to provide the requested modification or adjustment. White v. Department of Veterans Affairs , 120 M.S.P.R. 405, ¶ 12 (2013). A request for reasonable accommodation is the first step in an informal, interactive process between the individual and the employer. Id. The employer may ask the individual relevant questions that will enable it to make an informed decision about the request. Id. When the existence or nature of a reasonable accommodation is not obvious, and the employee fails to respond to the employer’s reasonable request for medical information or documentation, an agency will not be found to have violated its duty to provide a reasonable accommodation. Id. ¶19Here, the arbitrator found that, by virtue of his diagnosis of post-traumatic stress disorder (PTSD), the appellant was an individual with a disability. RFR File, Tab 1 at 99-100. She did not address whether the appellant was a qualified individual, but concluded that the agency did not fail to reasonably accommodate him because he did not fulfill his obligation to engage in the interactive process. Id. at 100-02. In so finding, she determined that the agency’s requests for information regarding the appellant’s disability and the accommodation he11 required were reasonable and lawful and that the appellant failed to sufficiently participate in the interactive process prior to his removal. Id. at 101-02. ¶20The appellant challenges this finding on review, arguing that the agency was aware that his absences were related to his disability and had medical documentation regarding his disability as of November 16, 2015. Id. at 26-27. He argues that his need for an accommodation—such as a liberal leave policy, telework or reassignment—was obvious and medical documentation was therefore not necessary. Id. at 31-36. He further argues that the arbitrator ignored the agency’s failure to engage in the interactive process after he requested an accommodation in September 2015 and failed to address the agency’s obligation to provide temporary accommodations and prospective accommodations.6 Id. at 29-32. ¶21Although the appellant disagrees with the arbitrator’s factual findings and takes issue with her failure to expressly consider his right to temporary and prospective accommodations, he has not shown any legal error in her analysis. Therefore, we defer to her conclusion that the appellant failed to prove that the agency violated the Rehabilitation Act by failing to reasonably accommodate him. See Sadiq, 119 M.S.P.R. 450, ¶ 5; Young v. Department of Justice , 93 M.S.P.R. 326, ¶ 7 (2003) (holding that an arbitrator’s finding that an appellant did not prove her discrimination claims is a factual determination entitled to deference, unless the arbitrator erred in his legal analysis). The arbitrator did not address the appellant’s affirmative defense of status - based disability discrimination, and we modify the arbitration award to find that the appellant failed to prove this claim. ¶22The appellant argued before the arbitrator that his removal was “unquestionably based on his disability -related absences” and that, because his 6 The appellant also appears to argue that the agency discriminated against him when it offered him an LCA in which he had to “forfeit his right to seek future accommodations in order to keep his job.” RFR File, Tab 1 at 36-38. However, the LCA in the record contains no such provision. Id. at 737-40. 12 removal was premised on disability -related conduct, it constituted a per se violation of the Rehabilitation Act. RFR File, Tab 1 at 137-40. In his request for review, he argues that the arbitrator failed to consider this affirmative defense and reiterates his contention that the agency discriminated against him on the basis of his disability by removing him for his disability-related absences.7 Id. at 21-24. Although the arbitrator observed that the appellant raised this claim, she did not address it in her analysis. Id. at 86-89, 90-102. Therefore, we have no basis upon which to defer to the arbitrator on this affirmative defense and make our own findings. See Sadiq, 119 M.S.P.R. 450, ¶ 5. ¶23To establish an affirmative defense of status-based disability discrimination, an appellant must show by preponderant evidence that his disability was a motivating factor in the contested personnel action, even if it was not the only reason. Pridgen, 2022 MSPB 31, ¶¶ 37, 40; 5 C.F.R. § 1201.56(b)(2)(i)(C). Here, the only argument in support of this affirmative defense advanced by the appellant is that his removal was based on his disability-related absences. RFR File, Tab 1 at 21-24. Contrary to his characterization of the reasons for his removal, however, the agency did not remove him for excessive absences; rather, it removed him for eight instances of AWOL within 2 months and failure to follow the leave restriction letter. Id. at 21-24, 137-40, 720-22. The appellant has not alleged that his disability prevented him from complying with the leave restriction letter, which resulted in his absences being designated as AWOL, and therefore has not shown that his removal was based on his disability rather than on the charged misconduct. See Adams, 112 M.S.P.R. 288, ¶ 18 (finding that the 7 In support of his contention that his removal based on disability-related absences constitutes a per se violation of the Rehabilitation Act, the appellant cites cases from the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit). RFR File, Tab 1 at 22-24. While decisions of the U.S. Court of Appeals for the Federal Circuit are controlling authority for the Board, other circuit courts’ decisions are considered persuasive, but not controlling, authority. See Morris v. Department of the Navy , 123 M.S.P.R. 662, ¶ 15 n.12 (2016). The appellant has not explained why the Board should follow Ninth Circuit precedent here, rather than the Board’s case law, and we find no basis to do so. 13 appellant failed to show that he was removed on the basis of his drug addiction rather than the charged misconduct because, among other things, he did not show that his drug addiction precluded him from complying with his leave restriction). ¶24We acknowledge that many of the appellant’s unscheduled absences were likely occasioned by his PTSD and that his removal was therefore at least indirectly related to his disability. Nonetheless, the Rehabilitation Act does not immunize an employee with a disability from being disciplined for misconduct in the workplace, provided that the agency would impose the same discipline on an employee without a disability. Laniewicz v. Department of Veterans Affairs , 83 M.S.P.R. 477, ¶ 5 (1999). Here, the appellant has not alleged, or presented any evidence to suggest, that the agency tolerated the sort of misconduct that he committed from employees who did not have a disability. Therefore, even if his misconduct was related to his disability, he has not shown that it was a motivating factor in the agency’s decision to remove him.8 ¶25In light of the foregoing, we find that the appellant failed to prove his status-based disability discrimination affirmative defense. The arbitrator failed to make specific findings regarding the reasonableness of the penalty, and we modify the arbitration decision to find that the penalty of removal is within the tolerable limits of reasonableness for the sustained charges. ¶26The deference that is due to an arbitrator’s findings extends to findings related to penalty determinations. Pinegar v. Federal Election Commission , 105 M.S.P.R. 677, ¶ 50 (2007). In making these findings, arbitrators are required to apply the same rules that the Board applies. Id. When the arbitrator does not apply those rules, her penalty determination is not entitled to deference, and the Board will conduct its own analysis. Id. 8 Because the appellant failed to show that his disability was a motivating factor in the agency’s decision to remove him, we do not reach the question of whether discrimination was a “but -for” cause of the removal action. See Pridgen, 2022 MSPB 31, ¶¶ 20-24.14 ¶27When, as here, all of the agency’s charges are sustained, the Board will review the agency-imposed penalty only to determine if the agency considered all of the relevant factors and exercised management discretion within the tolerable limits of reasonableness. Id., ¶ 53; see Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981) (articulating a nonexhaustive list of 12 factors that are relevant in assessing the appropriate penalty for an act of misconduct). In making this determination, the Board must give due deference to the agency’s primary discretion in maintaining employee discipline and efficiency, recognizing that the Board’s function is not to displace management’s responsibility, but to ensure that managerial judgment has been properly exercised. Pinegar, 105 M.S.P.R. 677, ¶ 53. The Board will modify or mitigate an agency-imposed penalty only when it finds that the agency failed to weigh the relevant factors or that the penalty clearly exceeds the bounds of reasonableness. Id. ¶28The arbitrator found that the agency removed the appellant for just and sufficient cause and for reasons that promoted the efficiency of the service. RFR File, Tab 1 at 98-99. However, she did not address whether the deciding official considered the relevant Douglas factors or exercised management discretion within the tolerable limits.9 RFR File, Tab 1 at 58, 91 -93. Because the arbitrator failed to apply the same rules that the Board applies in reviewing an agency-imposed penalty, we conduct our own analysis. See Pinegar, 105 M.S.P.R. 677, ¶ 50. ¶29The record reflects that the deciding official considered as aggravating factors the nature and seriousness of the charge as related to the appellant’s duties, his prior discipline for AWOL and reporting to work under the influence of alcohol, his past work record, the fact that he was clearly on notice of the 9 In the arbitration decision, the arbitrator set forth the agency’s argument regarding penalty and quoted the decision letter, which both included a discussion of the Douglas factors. RFR File, Tab 1 at 58-60, 91-93. However, her own analysis is devoid of any reference to the applicable law or consideration of whether the deciding official considered the relevant factors. Id. at 90-102. 15 agency’s expectations, and the effect of the appellant’s continued disregard of agency policies and procedures on management’s confidence in his ability to perform his duties and responsibilities. RFR File, Tab 1 at 362-66, 725-26. As mitigating factors, the deciding official considered the appellant’s medical issues, his difficulty obtaining treatment from the Department of Veterans Affairs, and his potential for rehabilitation. Id. at 366-67, 726. The deciding official testified that he considered the availability of alternative sanctions and decided to offer the appellant the LCA, which he ultimately did not accept. Id. at 367-68. Based on his consideration of these factors, the deciding official concluded that removal was an appropriate penalty. Id. at 726. ¶30In light of the foregoing, we find that the deciding official considered the relevant Douglas factors and that management exercised its discretion within the tolerable limits of reasonableness in imposing the appellant’s removal. See McCauley v. Department of the Interior , 116 M.S.P.R. 484, ¶ 14 (2011) (finding that the penalty of removal for AWOL does not exceed the tolerable limits of reasonableness, particularly when the employee has prior discipline for the same offense); Johnson v. General Services Administration , 46 M.S.P.R. 630, 635 (finding removal for the charges of failure to follow proper leave procedures and AWOL to be within the bounds of reasonableness), aff’d, 944 F.2d 913 (Fed. Cir. 1991) (Table). ¶31This is the Board’s final decision regarding the request for review of the arbitration decision. NOTICE OF APPEAL RIGHTS10 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 10 Since the issuance of the arbitration decision in this matter, the Board may have updated the notice 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 Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the18 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 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 of19 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 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	Wood_Danny_CB-7121-18-0001-V-1_Final_Order.pdf	2023-12-07	DANNY WOOD v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. CB-7121-18-0001-V-1, December 7, 2023	CB-7121-18-0001-V-1	NP
2,632	https://www.mspb.gov/decisions/nonprecedential/Soto_Javier_AT-1221-15-0157-B-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JAVIER SOTO, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-1221-15-0157-B-1 DATE: December 7, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Joyce E Kitchens , St. Simons Island, Georgia, for the appellant. Laura Kempin , St. Petersburg, Florida, for the agency. Kristin Langwell , Hines, Illinois, 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 remand initial decision, which denied him corrective action in his individual right of action appeal. On petition for review, the appellant challenges the administrative judge’s analysis of the factors set forth in Carr v. Social Security Administration , 185 F.3d 1318, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 1323 (Fed. Cir. 1999), to determine that the agency established by clear and convincing evidence that it would have separated him even if he had not engaged in protected activity. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review.2 Except as expressly MODIFIED to address an error in the administrative judge’s analysis of Carr factor two, we AFFIRM the initial decision. ¶2The administrative judge erred in finding that two of the appellant’s five protected activities at issue directly implicated the Regional Office Director or the human resources manager (HRM), when the record shows that three of the appellant’s protected activities did so. Soto v. Department of Veterans Affairs , MSPB Docket No. AT-1221-15-0157-B-1, Remand File, Tab 9, Remand Initial Decision (RID) at 19-20. The protected activity the administrative judge failed to include was a May 23, 2014 grievance accusing the HRM of, among other things, 2 The agency’s October 11, 2022 response to the appellant’s September 9, 2022 petition for review was untimely filed by 7 days. Soto v. Department of Veterans Affairs , MSPB Docket No. AT-1221-15-0157-B-1, Remand Petition for Review (RPFR) File, Tab 3; see 5 C.F.R. § 1201.114(e). Despite the agency’s explanation of the filing delay, we find that it did not establish good cause for the untimely filing. RPFR File, Tab 6. Accordingly, we do not consider the agency’s response. See Anderson v. Government Printing Office, 55 M.S.P.R. 548, 550 n.1 (1992).2 refusing to answer requests for information (RFIs). Soto v. Department of Veterans Affairs , MSPB Docket No. AT-1221-15-0157-W-1, Initial Appeal File (IAF), Tab 40 at 32-33. The grievance is, however, the first of two alleging the HRM’s delay in responding to RFIs—an accusation which the administrative judge correctly determined would have created only a negligible retaliatory motive in the HRM. RID at 21-22; IAF, Tab 41 at 55-56. The fact that the appellant grieved the same issue twice rather than once does not materially affect this analysis. There is also no reason to believe the additional allegations against the HRM in the first grievance, i.e., of unexplained “continued harassment of the bargaining unit” and better responsiveness to RFIs in one location compared with those in another location, affect this analysis in any material way. IAF, Tab 40 at 32-33. We thus find that the administrative judge’s error did not prejudice the appellant’s substantive rights, affording no basis to reverse the initial decision. Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984). NOTICE OF APPEAL RIGHTS3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. 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. 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	Soto_Javier_AT-1221-15-0157-B-1_Final_Order.pdf	2023-12-07	JAVIER SOTO v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-15-0157-B-1, December 7, 2023	AT-1221-15-0157-B-1	NP
2,633	https://www.mspb.gov/decisions/nonprecedential/Starks_Keith_L._DE-0752-18-0076-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KEITH L. STARKS, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER DE-0752-18-0076-I-1 DATE: December 7, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Janice L. Jackson , Leavenworth, Kansas, for the appellant. Kristine Hale Bell , Esquire, and E. Patrick Gilman , Fort Leavenworth, Kansas, 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 affirmed his removal. He argues that the administrative judge erred in finding that the agency proved the charge, the agency did not commit harmful procedural error in removing him, and the penalty of removal was reasonable. 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. Except as expressly MODIFIED to further address the appellant’s chain of custody argument and apply the correct standard to the appellant’s affirmative defense of reprisal for filing a Board appeal, we AFFIRM the initial decision. ¶2The administrative judge determined that the agency proved that the chain of custody of his urine sample was maintained and verifiable. Initial Appeal File (IAF), Initial Decision (ID), Tab 74 at 5-8. To the extent that it is unclear from the initial decision, we find that the Fort Mead Forensic Toxicology Lab (FTDTL) implemented the double billable stamp system. IAF, Tab 66, Hearing Recording, Day 1, Part 3 at 21:00-34:00 (testimony of the FTDTL Technical Director). Consistent with the system, the agency followed the FTDTL’s procedures for packaging and shipping the sample by FedEx to its Crofton, Maryland warehouse, and an FTDTL employee delivered the package from the warehouse to the FTDTL by a Government vehicle, where it was entered into the FTDTL’s system. ID at 7-8; IAF, Tab 9 at 47, Tab 38 at 45, Tab 66, Hearing Recording, Day 1, Part 3 at 21:00-34:00, Part 4 at 7:00-14:00 (testimony of the FTDTL Technical Director). On review, the appellant contends that the FTDTL employee responsible for delivering the package failed to sign the chain of custody form, thereby breaking the chain of custody and rendering the agency unable to2 establish that the sample belonged to him. Petition for Review File, Tab 3 at 10-13. We disagree. The administrative judge found that FedEx employees were not required to sign the Federal Chain of Custody Form (CCF), and, even if they were, their failure to do so was not harmful. ID at 7-8; IAF, Tab 9 at 47-54; see Forte v. Department of the Navy , 123 M.S.P.R. 124, ¶ 9 (2016) (explaining that an agency’s failure to comport with chain of custody procedures is reviewed under a harmful error standard). We extend this finding to the FTDTL employee who was responsible for picking up the appellant’s sample for the same reasons. ID at 7-8; IAF, Tab 9 at 455-56. In any event, the agency presented evidence showing an unbroken chain of custody. The CCF identified the agency employee, the agency’s Drug Testing Coordinator, who packaged and mailed the sample by FedEx. IAF, Tab 9 at 47. The FedEx tracking information identified the individual who signed for the package at the FedEx warehouse. IAF, Tab 38 at 45. The CCF also identified the first FTDTL employee, the Specimen Controller, to access the sample once it arrived at the FTDTL and confirmed that the sample identification matched that of the sample prepared and shipped by the agency. IAF, Tab 9 at 47, 51. Further, the sample’s seal was unbroken upon arrival at the FTDTL, assuring that it had not been tampered with during transit. Id. Given this evidence, we agree that the agency proved that the sample tested belonged to the appellant. See Boykin v. U.S. Postal Service , 51 M.S.P.R. 56, 58 (1991) (finding that the agency failed to show the positive drug test was valid because it produced no evidence indicating how the sample arrived at the laboratory for testing). ¶3The administrative judge also found that the appellant did not meet his burden of proving his race discrimination affirmative defense. ID at 13-15. To establish a claim of discrimination or reprisal for equal employment opportunity (EEO) activity arising under Title VII, an appellant must show that the prohibited consideration was at least a motivating factor in the personnel action at issue. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 21-22. In3 reviewing the administrative judge’s analysis, we find that the administrative judge properly considered the evidence as a whole. 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 id., ¶¶ 20-22, 29-33.. ¶4Regarding the appellant’s claim that the agency removed him in reprisal for filing a Board appeal, the administrative judge construed this affirmative defense as a claim of reprisal for engaging in protected EEO activity in violation of 42 U.S.C. § 2000e–16. However, there is no indication that the appellant alleged whistleblowing reprisal or an EEO claim in his prior appeal. Starks v. Department of the Army , MSPB Docket No. DE-315H-09-0530-I-1, Initial Decision at 1-11 (June 25, 2010). Thus, the administrative judge applied the wrong legal standard in analyzing this claim, and we modify the initial decision accordingly. ¶5For an appellant to prevail on an affirmative defense of retaliation for activity protected under 5 U.S.C. § 2302(b)(9)(A)(ii), if he does not allege reprisal for EEO activity protected under Title VII, he must show that: (1) he engaged in protected activity; (2) the accused official knew of the activity; (3) the adverse action under review could have been retaliation under the circumstances; and (4) there was a genuine nexus between the alleged retaliation and the adverse action. Mattison v. Department of Veterans Affairs , 123 M.S.P.R. 493, ¶ 8 (2016). To establish a genuine nexus, an appellant must show that the adverse action was taken because of his protected activity. Id. This requires the Board to weigh the severity of the appellant’s alleged misconduct against the intensity of the agency’s motive to retaliate. Id. ¶6Although the administrative judge applied the incorrect standard in considering the appellant’s retaliation affirmative defense, we find that remand is unnecessary. See Slater v. Department of Homeland Security , 108 M.S.P.R. 419,4 ¶ 12 (2008) (declining to remand because the parties addressed the relevant factual dispute, there was no need for additional development of the record to resolve it, and its resolution did not require making factual findings based on witnesses’ demeanor), overruled on other grounds by Haas v. Department of Homeland Security , 2022 MSPB 36, ¶ 14. The administrative judge apprised both parties of, and allowed them to address, the relevant factual dispute—whether the involved management officials had a motive to retaliate against the appellant. ID at 13-16; IAF, Tab 33 at 2. The administrative judge also made detailed findings on this dispositive issue, concluding that the proposing and deciding officials lacked any motive to retaliate against the appellant because of his prior Board appeal. ID at 14-16. The appellant does not contest these credibility-based findings on review, and we discern no basis for disturbing them. See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1372-73 (Fed. Cir. 2016) (providing that an administrative judge’s explicit and implicit credibility-based findings generally are entitled to deference). We therefore find that the appellant did not prove genuine nexus, and any error in the administrative judge’s analysis of this affirmative defense was harmless. See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981). Accordingly, we affirm, as modified, the administrative judge’s finding that the appellant did not prove that the agency removed him in reprisal for filing a Board appeal. NOTICE OF APPEAL RIGHTS2 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 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 summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 6 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the7 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of8 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 9 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.10	Starks_Keith_L._DE-0752-18-0076-I-1_Final_Order.pdf	2023-12-07	KEITH L. STARKS v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-0752-18-0076-I-1, December 7, 2023	DE-0752-18-0076-I-1	NP
2,634	https://www.mspb.gov/decisions/nonprecedential/Campbell_Mary_E._CH-1221-16-0284-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MARY E. CAMPBELL, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER CH-1221-16-0284-W-1 DATE: December 6, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Timothy A. Bridge , Wellston, Michigan, for the appellant. Christopher P. McNamee , Hines, Illinois, for the agency. Michael J. Klein , Baltimore, Maryland, 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 her request for corrective action in this individual right of action (IRA) appeal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 by this Final Order to find that the Follow the Rules Act (FTRA), Pub. L. No. 115-40, 131 Stat. 861 (2017), does not apply to this case, we AFFIRM the initial decision. BACKGROUND ¶2The parties have stipulated to the following facts. The agency employed the appellant as a GS-9 Program Specialist, pursuant to a 13-month term appointment, not to exceed July 15, 2015. Initial Appeal File (IAF), Tab 53 at 2. She was assigned to the Department of Veterans Affairs (VA) Information Resource Center (VIReC), and her duties included providing administrative and program support to VIReC personnel, timekeeping for VIReC staff, travel coordination, ordering supplies, inventory control, workflow tracking, phone coverage, reception, maintaining the calendar, and office operations. Id. Her duties also included serving as a Purchase Card Holder for VIReC, subject to the rules and regulations of the VA Government Purchase Card Program. Id. The appellant successfully completed her probationary period and received fully successful performance evaluations for the periods June 16 through September 30, 2014, and2 October 1, 2014, through September 30, 2015, and she was not subject to any disciplinary action during her employment at VIReC. Id. ¶3At issue in this appeal is the appellant’s claim that she was terminated from her position in retaliation for alleged whistleblowing disclosures and activity. IAF, Tab 1. Specifically, on June 22, 2015, her supervisor, D.H., emailed the appellant and asked her, in her role as Purchase Card Holder for VIReC, to use the purchase card to buy various promotional items for a national conference scheduled in Philadelphia, Pennsylvania on July 10, 2015.2 IAF, Tab 6 at 37-44. The appellant responded in an email to D.H. advising her that the VA Government Purchase Card Program prohibited a purchase card being used for the procurement of “promotional items in conjunction with a conference, such as mementos, gifts, keepsakes, prize items, and other VA ‘logo’ or ‘message’ items for distribution to VA and other [F]ederal employees.” IAF, Tab 4. The appellant further advised D.H. to “speak with the budget office” if she still wanted to order the promotional items, as it may have funding that allowed for the purchase. Id. Within 2 hours, D.H. emailed the appellant asking her to obtain the price of the items so that D.H. could purchase them with her personal charge card. Id. After an email discussion regarding the items, the appellant advised D.H. that, “[s]ince you will be using your credit card, once you decide what you want you can enter your credit card information and order at the same time.” Id. D.H. notified the appellant on June 25, 2015, that she had confirmed that she was permitted to purchase and donate the items to VIReC and she requested help from the appellant in finalizing the order. IAF, Tab 6 at 37-44. On June 25, 2015, after D.H.’s return to VIReC, she met with the appellant and the Office Administrator and allegedly discussed the purchase issue. IAF, Tab 4 at 46. The following day, the appellant contacted the VA’s Office of Resolution Management (ORM) to file an equal employment opportunity (EEO) complaint against D.H., alleging discrimination, retaliation, and the creation of a hostile 2 D.H. was in Utah, and not at the VIReC, when she emailed the appellant. 3 work environment. IAF, Tab 56, Hearing Compact Disc 1 (HCD 1) (testimony of the appellant). The appellant placed the order on June 29, 2015, the vendor contacted D.H. directly with a price quote, and D.H. purchased the items with her personal charge card. Id. On July 27, 2015, the appellant advised the Associate Chief of Staff, S.J., that D.H. retaliated against her for refusing to violate purchase card restrictions and threatened to fire her for raising her claims of a hostile work environment before ORM. Id. S.J. resigned from his position as Associate Chief of Staff on August 2, 2015. IAF, Tab 57, Hearing Compact Disc 2 (HCD 2) (testimony of S.J.). ¶4On September 15, 2015, after D.H. notified the appellant that she would extend her term appointment from November 2015 to March 2016, but would probably not extend it again after that, the appellant filed a Complaint of Possible Prohibited Personnel Practice with the Office of Special Counsel (OSC). IAF, Tab 1. The appellant’s “whistleblower disclosure” to OSC alleged the following: On 6/25/15 [D.H.], Director, VA Information Resource Center, Hines, VA, instructed me to use her VA purchase card to obtain various promotional items in direct violation of [VA Government Purchase Card Program] regulations . . . . After refusing this directive, I have been subject to harassment, a hostile work environment, removal of job responsibilities, and notice of termination of my term employment status effective March, 2016. I reported to [sic] [D.H.[’s]] unlawful directive to Dr. [S.J.], Chief of Staff, on 7/27/15. IAF, Tab 1, Exhibit (Ex.) E. The appellant’s complaint also alleged that her disclosure of information evidenced a violation of law, rule, or regulation, gross mismanagement, and an abuse of authority. Id. In addition, she alleged that, following her report to S.J., the agency failed to investigate her complaint and failed to take remedial measures to stop D.H.’s allegedly “retaliatory and harassing conduct.” IAF, Tab 1. ¶5On September 24, 2015, the appellant filed a formal complaint of discrimination with the agency. IAF, Tab 1, Ex. C. By letter dated January 21,4 2016, D.H. notified the appellant that her appointment would be terminated effective March 31, 2016. IAF, Tab 1, Ex. D. On January 29, 2016, OSC notified the appellant that it was closing its file in the matter and that she had a right to seek corrective action with the Board. IAF, Tab 1, Ex. F. The appellant then filed this Board appeal. IAF, Tab 1. ¶6Because there was a question on jurisdiction, the administrative judge issued an order that directed the parties to submit evidence and argument showing that the Board had jurisdiction over this appeal. IAF, Tab 3. The parties provided several submissions in response to the order and participated in status conferences. IAF, Tabs 4, 6, 9, 16. As a result of the parties requesting a jurisdictional determination, the administrative judge issued a detailed Order on Jurisdiction. IAF, Tab 20. She found that the appellant had exhausted her administrative remedies concerning three alleged disclosures or activities and the following personnel actions: failing to extend her term appointment; removing her job responsibilities; requesting additional documentation; and subjecting her to a hostile work environment. Id. at 7-8. As to the appellant’s first alleged protected disclosure or activity, her communications with D.H., the administrative judge found that, under 5 U.S.C. § 2302(b)(8), the appellant did not disclose to D.H. a violation of a 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. Instead, the administrative judge found that the appellant advised D.H. of what the regulations stated and then D.H. purchased the items with her own funds. Id. at 8-9. The administrative judge found that identifying that a requested action would be a potential violation is not the same thing as disclosing that one of these violations actually occurred. Id. ¶7Concerning the appellant’s claim that her disclosure to D.H. was protected activity under section 2302(b)(9), the administrative judge found that the appellant’s argument was precluded by the U.S. Court of Appeals for the Federal Circuit’s decision in Rainey v. Merit Systems Protection Board , 824 F.3d 1359,5 1361-62 (Fed. Cir. 2016), which held that the protection granted in section 2302(b)(9) is limited to orders that are contrary to a statute and does not encompass orders that are contrary to an agency’s rules or regulations. IAF, Tab 20 at 9. Thus, the administrative judge found that the appellant’s activity was not protected under section 2302(b)(9)(D). Id. at 10. ¶8Regarding the appellant’s second alleged protected disclosure or activity, the EEO complaint she filed against D.H. with ORM on June 26, 2015, the administrative judge found that the underlying allegations in the appellant’s complaint focused on claims of race and age discrimination, and that section 2302(b)(9) does not establish jurisdiction over her claim in an IRA appeal. Id. at 11. ¶9Finally, regarding the appellant’s third alleged protected disclosure or activity, her communications with S.J., the administrative judge found that the appellant made a nonfrivolous allegation that her disclosure to S.J. was protected because a disinterested observer could reasonably conclude that, when the appellant disclosed D.H.’s conduct to S.J., the appellant believed that D.H.’s alleged conduct constituted an abuse of authority. Id. at 14-15. The administrative judge also found that the appellant nonfrivolously alleged that her disclosure was a contributing factor in the agency’s decision not to extend her term appointment. Id. The administrative judge thus found that the appellant established that the Board has jurisdiction over her IRA appeal and that she was entitled to a hearing on the merits. Id. at 16. However, she advised the parties that she reserved the right to revisit the jurisdictional issue later, based on further development of the record. Id. Although the appellant objected to these rulings, the administrative judge issued an order overruling the appellant’s objections to her jurisdictional order.3 IAF, Tabs 21-22. 3 The administrative judge also denied the appellant’s motion for certification of an interlocutory appeal challenging the administrative judge’s rulings in the Order on Jurisdiction and the “Order Overruling Appellant’s Objections to Order on Jurisdiction.” IAF, Tabs 26-27.6 ¶10The administrative judge held a 2-day hearing and thereafter issued an initial decision denying the appellant’s request for corrective action. IAF, Tab 59, Initial Decision (ID). After considering the appellant’s supplemental evidence and argument, the administrative judge affirmed her prior rulings regarding the first and second alleged protected disclosures and activity, concluding that the appellant presented no evidence to show that either was protected. ID at 14-21. Regarding the appellant’s third alleged protected disclosure or activity, the administrative judge found that, although the appellant nonfrivolously alleged that she made a protected disclosure of an abuse of authority to S.J. in July 2015, she failed to prove it by preponderant evidence. ID at 21-24. The administrative judge thereafter found that, even if she were to conclude that the appellant had met her burden as to the July 2015 disclosure to S.J., there is no evidence that the disclosure was a contributing factor in any of the alleged personnel actions at issue. ID at 24-26. Concluding, the administrative judge found that, because the appellant had not shown by preponderant evidence that she made one or more whistleblowing disclosures that were a contributing factor in the personnel actions at issue in this appeal, she could not prevail on her whistleblower claim. Consequently, the administrative judge did not reach the issue of whether the agency could show by clear and convincing evidence it would have taken the personnel actions absent the appellant’s whistleblowing. ID at 27. ¶11The appellant has filed a timely petition for review. Petition for Review (PFR) File, Tab 3. The agency has filed a response to the appellant’s petition. PFR File, Tab 5. DISCUSSION OF ARGUMENTS ON REVIEW ¶12Under the Whistleblower Protection Act of 1989, as amended by the Whistleblower Protection Enhancement Act of 2012 (WPEA), in reviewing the merits of an IRA appeal in which the appellant alleges retaliation for protected7 disclosures or activity, the Board first considers whether the appellant has established by a preponderance of the evidence that she made protected disclosures 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), that were a contributing factor in an agency’s personnel actions. Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016). When the appellant is able to offer such proof, the Board must order corrective action unless the agency can establish by clear and convincing evidence that it would have taken the same personnel actions in the absence of the disclosure or activity. Id.; see Whitmore v. Department of Labor , 680 F.3d 1353, 1367 (Fed. Cir. 2012). The administrative judge properly found that the appellant’s first alleged disclosure or activity was not protected. ¶13On review, the appellant argues that the administrative judge erred in finding that her disclosure to D.H. did not constitute a protected disclosure under section 2302(b)(8). PFR File, Tab 3 at 7-9. In this regard, the appellant reasserts that the administrative judge erroneously excluded this disclosure because of the fact that she made it to her immediate supervisor and that the language in section 2302(b)(8) specifically recognizes disclosures made to immediate supervisors during the normal course of duties. Id. at 8-9. ¶14However, the administrative judge addressed this argument in the initial decision and found that it was a misstatement of her analysis.4 ID at 16. We agree. Specifically, the administrative judge explicitly stated that she was not excluding the appellant’s statement simply because it was made to D.H., her supervisor. Rather, the administrative judge found that the appellant’s alleged disclosure was not a disclosure because she merely advised D.H. of what the regulations stated, and not of a violation of the regulations. Thus, the administrative judge found that no disclosure of a violation of a law, rule, or 4 The administrative judge also addressed this argument in the “Order Overruling Appellant’s Objections to Order on Jurisdiction.” IAF, Tab 22.8 regulation, nor a disclosure of a potential violation, actually occurred. ID at 14-15. ¶15Additionally, the appellant contends that, under the analysis in Reid v. Merit Systems Protection Board , 508 F.3d 674 (Fed. Cir. 2007), her disclosure to D.H. was protected, whether or not the unauthorized purchase actually occurred, and that the administrative judge erred in finding that an actual violation had to have occurred before it was deemed a protected disclosure under section 2302(b)(8). PFR File Tab 3 at 9-12. The appellant asserts that she had every reason to believe that D.H.’s “directive was both ‘real and imminent’ and that she [would be] potentially subjected to disciplinary action in the event she followed her directives.” Id. at 9. Thus, the appellant argues that her disclosure satisfied section 2302(b)(8) because she disclosed a potential violation in which she had a reasonable belief that potential wrongdoing was real and imminent. Id. at 11. ¶16However, as the administrative judge correctly found, the overwhelming record evidence, including the hearing testimony, reflects that, once the appellant told D.H. that VA regulations prohibit the purchase of promotional items using the Government purchase card, D.H.’s almost immediate response was to state that she would purchase the items on her own personal credit card. ID at 14-16; IAF, Tab 7, Ex. 3 at 25-31; HCD 1; HCD 2. Further, while the appellant contends that she disclosed an “imminent” potential violation of a law, to the extent that she may be implying that this violation also might have involved a substantial or specific danger to the public, we would disagree. The appellant’s disclosure merely involved the purchase of mementos for a conference and thus there was no imminent, much less a substantial or specific, danger to anyone. Cf. Miller v. Department of Homeland Security , 111 M.S.P.R. 312, ¶¶ 15, 19 (2009) (finding that the appellant had a reasonable belief that his disclosures would pose a substantial and specific danger to public safety and an imminent threat when his disclosures involved proposed changes to airport screening of bags and passenger check points). Moreover, discussions between employees and supervisors9 regarding various courses of action are normal, and such communications can actually help avoid potential violations of the law. See Reid, 508 F.3d at 678. Therefore, we find no support for the appellant’s claim that potential wrongdoing was imminent. ¶17To the extent the appellant asserts for the first time on review that she previously had been informed that using the Government purchase card for promotional items had become a “past practice” under D.H.’s tenure as VIReC Director, the appellant has made no showing as to why this claim was not raised below. The Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). ¶18The appellant also challenges the administrative judge’s credibility determinations regarding the finding that her June 2015 refusal to follow the directive to purchase promotional items was not a protected disclosure. PFR File, Tab 3 at 13. The Board must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so. See Haebe v. Department of Justice , 288 F.3d 1288, 1302 (Fed. Cir. 2002). We have reviewed the record evidence and we discern no basis upon which to disturb the administrative judge’s well-explained credibility determinations in this regard. ID at 14-18. ¶19When the appellant filed this appeal, 5 U.S.C. § 2302(b)(9)(D) made it a prohibited personnel practice to take an action against an employee for “refusing to obey an order that would require the individual to violate a law.” Here, the appellant asserts that she engaged in protected activity when she refused to obey a directive that would have required her to violate an agency regulation prohibiting the purchase of promotional items with Government charge cards. PFR File,10 Tab 3 at 16-17. As the administrative judge properly explained, our reviewing court held in Rainey that the protection in section 2309(b)(9)(D) extended only to orders that would require the individual to take an action barred by statute. Rainey, 824 F.3d 1359, 1361-62, 1364-65. Thus, under the law in effect at the time this appeal was filed, the appellant’s claim—that she refused to follow a directive that would have required her to violate an agency regulation—fell outside the scope of section 2302(b)(9)(D). Id. ¶20On June 14, 2017, while this petition for review was pending before the Board, the President signed into law the FTRA, which amended section 2302(b)(9)(D) by inserting after the word “law” the words “rule or regulation.” 131 Stat. at 861. Therefore, if the FTRA were to apply to pending cases, the appellant’s claim that she disobeyed an order that would have required her to violate an agency regulation would have fallen within the scope of section 2302(b)(9)(D). The Board analyzed the retroactivity of the FTRA in Fisher v. Department of the Interior , 2023 MSPB 11, ¶¶ 13-19, and found, applying the test set forth by the U.S. Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244 (1994), that the FTRA did not apply to cases filed before its enactment. Accordingly, we find that the appellant’s claim that the agency retaliated against her for refusing to obey a directive that would have required her to violate an agency regulation is outside the scope of section 2302(b)(9)(D) and that, therefore, she failed to establish that she engaged in protected activity under that section. The administrative judge properly found that the appellant’s second alleged disclosure or activity was not protected. ¶21Reprisal for exercising a grievance or complaint right is a prohibited personnel practice under 5 U.S.C. § 2302(b)(9). Specifically, section 2302(b)(9) prohibits the taking or failing to take, or threatening to take or fail to take, “any personnel action against any employee or applicant for employment because of— (A) the exercise of any appeal, complaint, or grievance right granted by any law,11 rule, or regulation—(i) with regard to remedying a violation of paragraph [(b)](8); or (ii) other than with regard to remedying a violation of paragraph [(b)](8).” Hooker v. Department of Veterans Affairs , 120 M.S.P.R. 629, ¶ 9 (2014). However, the WPEA did not extend the Board’s jurisdiction to include retaliation for an appellant’s filing of an EEO complaint that did not seek to remedy a violation of (b)(8). See Young v. Merit Systems Protection Board , 961 F.3d 1323, 1329 (Fed. Cir. 2020) (explaining that the Board lacks jurisdiction in an IRA appeal over claims of reprisal for EEO activity protected under section 2302(b)(9)(A)(ii)); Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 7 (2013). Therefore, insofar as the appellant alleged that the agency took personnel actions in reprisal for her having filed an EEO complaint with ORM, the administrative judge correctly determined that the Board lacks jurisdiction to consider such allegations in the context of this IRA appeal. Mudd, 120 M.S.P.R. 365, ¶ 7. ¶22The appellant argues on review that the administrative judge misconstrued the type of retaliation protected under section 2302(b)(9)(A)(i) and erred in finding that she only asserted claims of race and age discrimination in her EEO complaint. PFR File, Tab 3 at 15. Specifically, the appellant contends that her EEO complaint was not limited to discrimination based on age and race and that she also alleged that she was subjected to a hostile work environment based upon “reprisal” for objecting to a violation of law, rule, or regulation. Id. ¶23However, the record reflects that the appellant did not specifically state in her ORM complaint that her claim was based upon reprisal for objecting to a violation of a law, rule, or regulation. IAF, Tab 1, Ex. C. Although her complaint identifies the bases as race, age, and “reprisal (oppositional),” her specific claims involve being shouted at by her supervisor, referred to as having “act[ed] ghetto,” and being “isolated from her co-workers.” Id. Therefore, the administrative judge properly found that the appellant’s allegations of EEO reprisal failed to establish the Board’s jurisdiction over this alleged disclosure.12 See, e.g., Horton v. Department of Veterans Affairs , 106 M.S.P.R. 234, ¶ 7 (2007) (finding that the test of the sufficiency of an appellant’s charges of whistleblowing to OSC is the statement that she makes in the complaint requesting corrective action, not her post hoc characterization of those statements before the Board). The administrative judge properly found that the appellant’s third alleged disclosure or activity was not protected. ¶24At the outset, we note that the appellant has not challenged the administrative judge’s determinations that she did not make a protected disclosure to S.J. We have reviewed the administrative judge’s findings and discern no error in this regard. Therefore, we affirm the administrative judge’s finding that the appellant failed to show that her disclosure to S.J. was protected. ID at 21-24. ¶25On review, it appears that the appellant may be arguing that the personnel actions at issue in this appeal were proximate in time to her disclosure to S.J. and that, thus, she established that her disclosure to S.J. was a contributing factor in these personnel actions. PFR File, Tab 1 at 16-17. The appellant also appears to argue that the administrative judge failed to address each of the alleged personnel actions at issue. Id. However, because we find that the appellant did not show that she made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), we need not address either whether she showed that the personnel actions at issue constituted personnel actions under 5 U.S.C. § 2302(a)(2)(A) or whether she showed that her disclosures or activity were a contributing factor in those personnel actions. See, e.g., Corthell, 123 M.S.P.R. 417, ¶ 8. ¶26Similarly, it appears that the appellant may be arguing that the administrative judge erred by failing to make a clear and convincing analysis. PFR File, Tab 3 at 19-20. However, because the appellant failed to establish a prima facie case of reprisal for whistleblowing, the burden did not shift to the agency to prove by clear and convincing evidence that it would have taken the13 same personnel actions absent her whistleblowing. Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 26 (2016). Therefore, we discern no error by the administrative judge in not providing a clear and convincing analysis. The appellant did not argue below that she was perceived as a whistleblower. ¶27Finally, the appellant argues on review that the administrative judge failed to address whether she was “perceived” as a whistleblower by the responsible management officials. PFR File, Tab 3 at 17-19. However, the appellant failed to raise this argument below, even after the administrative judge explicitly advised her how to raise such a claim. IAF, Tab 3 at 5, Tab 4, Tab 12 at 4. Because the appellant has not shown that her argument is based on new and material evidence that she was unable to provide below despite her due diligence, we have not considered it for the first time on review. Banks, 4 M.S.P.R. at 271. 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. 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 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you15 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 16 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 17 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	Campbell_Mary_E._CH-1221-16-0284-W-1_Final_Order.pdf	2023-12-06	MARY E. CAMPBELL v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-16-0284-W-1, December 6, 2023	CH-1221-16-0284-W-1	NP
2,635	https://www.mspb.gov/decisions/nonprecedential/Boyd_Thasha_AT-1221-18-0295-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD THASHA A. BOYD, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-1221-18-0295-W-1 DATE: December 6, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Thasha A. Boyd , McMinnville, Tennessee, pro se. Mary Bea Sellers , Montgomery, Alabama, for the agency. Sophia Haynes , Decatur, 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 dismissed her individual right of action (IRA) appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to VACATE the administrative judge’s findings as to the retroactivity of the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 (Kirkpatrick Act),2 and to apply the correct standard for analyzing the appellant’s hostile work environment claim in the context of an IRA appeal, we AFFIRM the initial decision’s dismissal of the appeal for lack of jurisdiction. BACKGROUND ¶2The agency employed the appellant as a Veterans Service Representative, until it removed her effective April 24, 2017. Initial Appeal File (IAF), Tab 9 at 8. On November 8, 2017, the appellant filed a complaint with the Office of Special Counsel (OSC) alleging that the agency allowed her coworkers to improperly access her medical and other records in September 2016 and July 2017 in reprisal for filing complaints against the agency and Board appeals. IAF, Tab 6 at 16-25. The appellant claimed, only generally, that the agency’s failure to protect her information created a hostile work environment. Id. at 23. In a January 2, 2018 letter, OSC notified the appellant that it had terminated its investigation into her complaint. Id. at 16. 2 Pub. L. No. 115-73, § 103, 131 Stat. 1235, 1236.2 ¶3The appellant filed a timely IRA appeal and declined a hearing. IAF, Tab 1 at 2, 4-11. The administrative judge issued an order apprising her of the jurisdictional requirements for an IRA appeal and ordering the parties to submit argument and evidence on jurisdiction. IAF, Tabs 2-4. Both parties submitted responses. IAF, Tabs 6, 9. In her response, the appellant alleged that the agency improperly accessed her medical records and subjected her to a hostile work environment in reprisal for engaging in protected activity and because they perceived her as a whistleblower. IAF, Tab 6 at 13-14. She further claimed that the agency violated the Kirkpatrick Act. Id. at 14. She attached copies of her OSC complaint, OSC’s preliminary determination and close out letters, and a sworn statement explaining that she amended her OSC complaint to include additional protected activity. Id. at 16-25, 32. She also submitted complaints she had filed with the agency’s Office of General Counsel (OGC), emails concerning a discovery request from a prior matter, and a portion of an initial decision from a separate Board appeal. Id. at 26-31, 33-51. ¶4After considering the parties’ submissions, the administrative judge issued an initial decision, based on the written record, dismissing the appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID) at 1, 3, 16. He found that, while the appellant had exhausted her administrative remedies with OSC and nonfrivolously alleged that she engaged in protected activity, she did not nonfrivolously allege that the agency had taken or threatened to take a covered personnel action against her. ID at 11-16. He found that the appellant’s Kirkpatrick Act arguments were irrelevant because the Act did not apply retroactively. ID at 16. He further found that the agency’s accessing of her records, alone, was insufficient to constitute a nonfrivolous allegation of a significant change in duties, responsibilities, or working conditions, especially when the July 2017 incident occurred after the appellant had separated from agency employment. ID at 12-15.3 ¶5The appellant has filed a petition for review, alleging that she nonfrivolously alleged jurisdiction over her IRA appeal, that she was not properly apprised of her jurisdictional burden, and that she was denied her right to discovery. Petition for Review (PFR) File, Tab 1 at 4-13. The agency has filed a response.3 PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW ¶6To establish Board jurisdiction over an IRA appeal, the appellant must have exhausted her administrative remedies before OSC and make nonfrivolous allegations of the following: (1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity as specified in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).4 Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). The Board lacks jurisdiction over the appellant’s 5 U.S.C. § 2302(b)(14) claim. ¶7On review, the appellant reasserts her contention that the agency allowed unauthorized employees to improperly access her medical records in reprisal for making protected disclosures and engaging in protected activities, in violation of the Kirkpatrick Act. PFR File, Tab 1 at 7-8; IAF, Tab 6 at 14. She argues that 3 The agency filed a motion for leave to file a supplemental response addressing the applicability of the Kirkpatrick Act. PFR File, Tab 3 at 7, Tab 4. Based on our affirmance of the initial decision, as modified, we deny the agency’s motion. 4 During the pendency of this appeal, the National Defense Authorization Act for Fiscal Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law. Section 1097 of the NDAA amended various provisions of Title 5 of the U.S. Code. We have considered the NDAA amendments, but find that a different outcome is not warranted.4 she may raise such a claim because the Kirkpatrick Act applies retroactively.5 PFR File, Tab 1 at 8-12. ¶8We construe the appellant’s claim as an alleged 5 U.S.C. § 2302(b)(14) violation. However, we need not reach a finding on the retroactivity of the Kirkpatrick Act or consider the appellant’s argument and evidence on that issue because, even assuming the retroactivity of that provision, section 2302(b)(14) is not a basis for finding Board jurisdiction over this appeal. Prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction. 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). Sections 1214(a)(3) and 1221(a), which set forth the Board’s authority to review IRA appeals, grant the Board jurisdiction over violations of 5 U.S.C. § 2302(b)(8) and § 2302(b)(9)(A)(i), (B), (C), or (D) in the context of an IRA appeal. See Salerno, 123 M.S.P.R. 230, ¶ 5. Because a section 2302(b)(14) violation is not an independent basis for finding jurisdiction in an IRA appeal, and the appellant has not raised her claim in connection with an otherwise appealable action, the Board lacks jurisdiction to consider it. Accordingly, we vacate the administrative judge’s findings as to the retroactivity of the Kirkpatrick Act. The appellant has not proven that she nonfrivolously alleged a covered personnel action. ¶9The dispositive issue here is whether the appellant raised a nonfrivolous allegation of a personnel action.6 ID at 16; see Salerno, 123 M.S.P.R. 230, ¶ 5. 5 The Kirkpatrick Act was enacted on October 26, 2017. 131 Stat. at 1235. Section 103 (codified at 5 U.S.C. § 2302(b)(14)) amended section 2302(b) of Title 5 by making it a new prohibited personnel practice to access an employee’s medical records “as a part of, or otherwise in furtherance of” a prohibited personnel practice as defined by 5 U.S.C. § 2302(b)(1)-(13). 131 Stat. at 1236. 6 The administrative judge found that the appellant raised a nonfrivolous allegation that she engaged in protected activity by filing a Board appeal, among other complaints. ID at 11-12. In light of that finding, the administrative judge found it unnecessary to address the appellant’s perceived whistleblower claims. ID at 12 n.9. The parties have not challenged that finding, and we discern no basis for disturbing it. See 5 C.F.R. § 1201.115.5 The appellant argues that the accessing of her medical records constitutes an independent personnel action. PFR File, Tab 1 at 12-13. We disagree. Accessing of medical records is not one of the twelve personnel actions expressly listed under 5 U.S.C. § 2302(a)(2)(A). ¶10Alternatively, the appellant argued that she nonfrivolously alleged that she was subjected to a hostile work environment. PFR File, Tab 1 at 7-8, 11 -12. The administrative judge correctly construed the claim as an allegation that she was subjected to a significant change in duties, responsibilities, or working conditions, under 5 U.S.C. § 2302(a)(2)(A)(xii). ID at 12. However, in analyzing whether the appellant nonfrivolously alleged a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii), he relied on case law relevant to establishing a hostile work environment under Title VII. ID at 12-15. We find that his reliance on that precedent was improper. See Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 16. Accordingly, we modify the initial decision to apply the correct analysis to the appellant’s hostile work environment claim. ¶11Under both the Whistleblower Protection Enhancement Act (WPEA) and its predecessor, the Whistleblower Protection Act (WPA), a “personnel action” is defined to include, among other enumerated actions, “any other significant change in duties, responsibilities, or working conditions.”7 5 U.S.C. § 2302(a)(2)(A) (xii). In Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 23 (2015), overruled in part on other grounds by Pridgen v. Office of Management and Budget, 2022 MSPB 31, the Board stated that a hostile work environment itself may constitute a covered personnel action under the WPA. In Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 16, the Board clarified that, although the term “hostile work environment” has a particular meaning in other contexts, allegations of a hostile work environment may constitute a personnel action in an IRA appeal only if they meet the statutory criteria under 5 U.S.C. 7 The relevant events occurred after the December 27, 2012 effective date of the WPEA. Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476 (2012). Therefore, we have applied the WPEA to this appeal. 6 § 2302(a)(2)(A), i.e., constitute a significant change in duties, responsibilities, or working conditions. Thus, 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).8 Skarada, 2022 MSPB 17, ¶ 16. ¶12The appellant has not identified any practical consequences to her daily activities or working conditions that occurred, at the direction of any agency official or otherwise, because of the alleged accessing of her records. PFR File, Tab 1 at 6-10; IAF, Tab 6 at 9-10, 13-14, 21-22; see King v. Department of Health and Human Services , 133 F.3d 1450, 1452-53 (Fed. Cir. 1998) (explaining that an action must have “practical consequences” to constitute a “personnel action” under 5 U.S.C. § 2302(a)(2)(A)). As to the July 2017 incident in particular, there is no possible effect it could have had on her working conditions because it allegedly occurred after her April 2017 separation from agency employment. IAF, Tab 6 at 13-14, Tab 9 at 8. Also, in both instances, the agency employees accessed her records in furtherance of her requests for assistance. IAF, Tab 6 at 13. Accordingly, we find that the appellant’s record access claims do not constitute a nonfrivolous allegation that she was subjected to a significant change in duties, responsibilities, or working conditions. 8 Despite the administrative judge’s error in citing to Title VII case law, and any failure to provide sufficient jurisdictional notice below, we find that the initial decision properly identified the relevant statutory provisions for alleging a significant change in duties, responsibilities, or working conditions, 5 U.S.C. § 2302(a)(2)(A)(xii), and notified the appellant that a hostile work environment claim was a cognizable personnel action if it met that statutory standard. ID at 12, 15; see Milam v. Department of Agriculture, 99 M.S.P.R. 485, ¶ 10 (2005) (finding that an administrative judge’s failure to provide an appellant with proper jurisdictional notice can be cured if the initial decision itself puts him on notice so as to afford him the opportunity to meet his burden in the petition for review).7 ¶13On review, the appellant alleges that, had the administrative judge also considered those incidents described in her OGC complaint in addition to her improper records access claims, he would have found that she met her jurisdictional burden. PFR File, Tab 1 at 7-8. In her OGC complaint, the appellant alleged that she was “removed” from working in the “Public Contact” area. IAF, Tab 6 at 33-34. She further alleged that other employees laughed “as she walked by,” did not greet her upon arrival at training, failed to order her requested lunch item for an office lunch, scrutinized her for not attending various social gatherings, discussed topics that made her feel uncomfortable, and filed retaliatory complaints against her that led to unfair agency investigations. Id. at 33-37. She also alleged that she felt threatened when, on one occasion, a coworker sang explicit song lyrics in the training room and allowed a door to shut on her, and that her coworkers harassed her based on her religion by asking her why she did not eat pork, celebrate Thanksgiving, or want her picture taken, without indicating whether any of her coworkers were aware of her religion. Id. at 37-38. The administrative judge only considered the alleged unauthorized access of her medical records in support of her hostile work environment claim. ID at 12-15. The appellant has not shown that she notified OSC of the incidents described in her OGC complaint or asserted that she submitted her OGC complaint to OSC. Thus, she has not shown that she exhausted her remedy with OSC as to these incidents, and the administrative judge correctly did not address them. See Skarada, 2022 MSPB 17, ¶ 7 (explaining that to satisfy the exhaustion requirement, the appellant must provide OSC with a sufficient basis to pursue an investigation that might lead to corrective action). ¶14Even assuming the appellant exhausted the claims raised in her OGC complaint, we find that they do not provide a basis for finding jurisdiction over this appeal. In describing her assignment to the Public Contact area, the appellant does not assert that this work was a regular part of her normal duties or allege that the loss of this assignment had a significant impact on her duties or8 responsibilities. IAF, Tab 6 at 33-24; see Wagner v. Environmental Protection Agency, 51 M.S.P.R. 326, 328 (1991) (finding that the appellant’s exclusion from attending one conference was not a significant change in duties, responsibilities, or working conditions). Similarly, the appellant’s claims about retaliatory investigations were too vague to constitute a nonfrivolous allegation that the agency took a personnel action against her. IAF, Tab 6 at 36, 38; Zimmerman v. Department of Housing and Urban Development , 61 M.S.P.R. 75, 79-80 (1994) (finding that allegations of “continuing reprisal” and “threats” were too vague to constitute personnel actions). Finally, even if true and when viewed in the light most favorable to the appellant, we find that the described cessation of office pleasantries and other minor, occasional slights may have created some discord between the appellant and other employees, but would not be significant enough, either individually or collectively, to constitute a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii). Cf. Covarrubias v. Social Security Administration , 113 M.S.P.R. 583, ¶¶ 8, 15 n.4 (2010) (finding that the appellant nonfrivolously alleged a significant change in working conditions when she alleged that her supervisors harassed her about personal telephone calls, closely monitored her whereabouts, followed her to the bathroom, and denied her an accommodation for her spina bifida, which required her to self-catheterize), overruled on other grounds by Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677, ¶ 12 n.5 (2014). Accordingly, when considering her allegations individually and collectively, we find that the appellant did not nonfrivolously allege a covered personnel action and therefore has not met her jurisdictional burden. The appellant has not shown that she was prejudiced by the denial of her right to discovery. ¶15The appellant also argues that the administrative judge erred in denying her right to discovery. PFR File, Tab 1 at 6-7. She correctly argues that she was entitled to request discovery of relevant materials to assist her in meeting the burden of establishing jurisdiction. See Russo v. Department of the Navy ,9 85 M.S.P.R. 12, ¶ 8 (1999). Consistent with the Board’s regulations, the administrative judge set forth the timeline for initiating discovery and notified the parties of the close of the record. IAF, Tab 2 at 3, Tab 5; 5 C.F.R. § 1201.73 (setting forth the Board’s discovery procedures). The agency filed a motion to stay discovery, including its response to the appellant’s discovery request, and submission of the agency file pending a ruling on jurisdiction. IAF, Tab 8. The administrative judge issued the initial decision the following day, approximately 1 week before the close of the record, while the appellant’s discovery request apparently was pending, and without allowing the appellant an opportunity to respond to the agency’s motion or issuing a ruling on that motion. ¶16Even if the administrative judge abused his discretion by not allowing the appellant an opportunity for discovery, the Board will not consider that reversible error absent a showing that it prejudiced her substantive rights. See Lynch v. Department of Defense , 114 M.S.P.R. 219, ¶ 11 (2010). We discern no prejudice to the appellant’s substantive rights because she has not identified any specific item she sought in discovery that would have been relevant to or otherwise assisted her in meeting her burden on the outstanding jurisdictional issue— whether she nonfrivolously alleged that she was subjected to a covered personnel action.9 See Davis v. Department of Defense , 103 M.S.P.R. 516, ¶ 13 (2006) (finding no reversible error in the administrative judge’s failure to rule on the appellant’s motion to compel discovery before issuing the initial decision because his discovery requests did not seek information pertinent to exhaustion, the relevant jurisdictional issue); cf. Lynch, 114 M.S.P.R. 219, ¶¶ 6-11 (remanding the appeal for further development of the record because the appellant showed that the administrative judge’s error in issuing the initial decision before the close of discovery prevented him from submitting relevant evidence he obtained during 9 The appellant did not submit or otherwise explain the nature of her discovery request in this appeal. The appellant submitted emails entitled “Discovery Request”; however, those emails predate the filing of this appeal and apparently were discovery requests made in another matter. IAF, Tab 1 at 1, Tab 6 at 8-9, 26-30.10 discovery). Therefore, the administrative judge’s discovery errors are not a basis for reversing the initial decision. ¶17Although the administrative judge also erred in issuing the initial decision before the close of the record, the Board likewise will not consider that reversible error absent a showing that it prejudiced the appellant’s substantive rights. ID at 1; IAF, Tab 5; Crumpton v. Department of the Treasury , 98 M.S.P.R. 115, ¶ 8 (2004). The administrative judge issued the initial decision before the expiration of the agency’s response period; however, the appellant’s period to respond to the jurisdictional order had passed. ID at 1; IAF, Tab 5. To the extent that she was improperly denied the opportunity to reply to the agency’s jurisdictional response before the issuance of the initial decision, she was not prejudiced by that error because we have considered all of her arguments that she raises on review. See Crumpton, 98 M.S.P.R. 115, ¶ 9. Therefore, the administrative judge’s error in this regard similarly is not a basis for review. 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 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.11 within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 12 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 13 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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). 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. 14 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.15	Boyd_Thasha_AT-1221-18-0295-W-1_Final_Order.pdf	2023-12-06	THASHA A. BOYD v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-18-0295-W-1, December 6, 2023	AT-1221-18-0295-W-1	NP
2,636	https://www.mspb.gov/decisions/nonprecedential/Inwood_Jerry_CH-0752-17-0461-I-1 Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JERRY BRIAN INWOOD, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER CH-0752-17-0461-I-1 DATE: December 6, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jeffrey H. Jacobson , Esquire, Tucson, Arizona, for the appellant. Kevin B. Marsh and Jill Russell , Detroit, Michigan, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which sustained his removal for conduct and attendance reasons. On petition for review, the appellant argues that the agency failed to prove one of its specifications and that the deciding official violated his due process rights. He also disputes the administrative judge’s penalty analysis and credibility determinations. Generally, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to apply the correct standard of proof to the appellant’s claim of retaliation for equal employment opportunity (EEO) activity, we AFFIRM the initial decision. ¶2We note that the appellant does not challenge the administrative judge’s finding that he failed to prove his affirmative defense of retaliation for protected EEO activity. Initial Appeal File, Tab 22, Initial Decision at 19-21. While the administrative judge considered the appellant’s retaliation claim under a “motivating factor” standard, the Board has since clarified that, to establish a violation of the anti-retaliation provision of the Rehabilitation Act, an appellant must establish that the protected activity was a “but-for” cause of the employer’s action. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 47. We find that analyzing the appellant’s claim of retaliation for filing a disability discrimination complaint under Pridgen does not require a different result. Having failed to meet the less stringent “motivating factor” standard, the appellant does not meet the more stringent “but-for” standard. Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 33. Thus, we affirm the administrative judge’s finding, as modified, to find that the appellant did not prove that his protected2 Rehabilitation Act activity was a “but-for” cause of his removal. Pridgen, 2022 MSPB 31, ¶ 47. NOTICE OF APPEAL RIGHTS2 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on4 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Inwood_Jerry_CH-0752-17-0461-I-1 Final_Order.pdf	2023-12-06	JERRY BRIAN INWOOD v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. CH-0752-17-0461-I-1, December 6, 2023	CH-0752-17-0461-I-1	NP
2,637	https://www.mspb.gov/decisions/nonprecedential/Krafsur_Gerald_CB-7521-14-0016-T-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SOCIAL SECURITY ADMINISTRATION, Petitioner, v. GERALD I. KRAFSUR, Respondent.DOCKET NUMBER CB-7521-14-0016-T-1 DATE: December 6, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jennifer McMahon and Richard V. Blake , Atlanta, Georgia, for the petitioner. Meeka S. Drayton , Seattle, Washington, for the petitioner. Gerald I. Krafsur , Johnson City, Tennessee, pro se. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The respondent has filed a petition for review of the initial decision, which found good cause under 5 U.S.C. § 7521 to remove the respondent from his position as an administrative law judge. On petition for review, the respondent argues that the deciding administrative law judge failed to consider his arguments 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). that the agency failed to train him properly and that the agency was pressured to seek his removal because of his high rate of favorable decisions towards claimants for social security benefits. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established 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). ¶2In making this decision, we note that the deciding administrative law judge rejected the respondent’s claim that the agency’s actions constituted reprisal for whistleblowing in this case. Complaint File, Tab 164, Initial Decision at 21-22. Because the respondent has not challenged this finding on review, we see no reason to revisit it. ORDER ¶3The Board authorizes the petitioner to remove the respondent from his position for good cause shown, pursuant to 5 U.S.C. § 7521.2 This is the final decision of the Merit Systems Protection Board in this complaint. 5 C.F.R. § 1201.113(b). 2 As the Board recently clarified in Social Security Administration v. Levinson , 2023 MSPB 20, ¶¶ 37-38, the Board’s finding of good cause for removal authorizes but does not require the petitioner to act.2 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any4 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s5 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Krafsur_Gerald_CB-7521-14-0016-T-1_Final_Order.pdf	2023-12-06	null	CB-7521-14-0016-T-1	NP
2,638	https://www.mspb.gov/decisions/nonprecedential/Chowdhury_Enamul_DC-3443-18-0721-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ENAMUL HAQE CHOWDHURY, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER DC-3443-18-0721-I-1 DATE: December 6, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Enamul Haqe Chowdhury , Dhaka, pro se. Director of Personnel , Parkersburg, West Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction. On petition for review, the appellant argues that the agency violated his constitutional rights, engaged in various forms of misconduct, and obstructed his employment, reemployment, and restoration rights. He has attached correspondence related to the electronic account that he maintained with the agency. Generally, we grant petitions such as this one only 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you3 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.6	Chowdhury_Enamul_DC-3443-18-0721-I-1_Final_Order.pdf	2023-12-06	ENAMUL HAQE CHOWDHURY v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DC-3443-18-0721-I-1, December 6, 2023	DC-3443-18-0721-I-1	NP
2,639	https://www.mspb.gov/decisions/nonprecedential/Darrow_Justin_DC-0752-17-0644-I-1 Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JUSTIN THOMAS DARROW, Appellant, v. DEPARTMENT OF COMMERCE, Agency.DOCKET NUMBER DC-0752-17-0644-I-1 DATE: December 6, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kevin L. Owen , Esquire, Christopher Hugh Bonk , Esquire, and Renn Fowler , Esquire, Silver Spring, Maryland, for the appellant. Taron Murakami and William Horrigan , Alexandria, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his termination appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2In the initial decision, the administrative judge found that the statements made in the appellant’s pleadings were not offered under penalty of perjury. Initial Appeal File (IAF), Tab 19, Initial Decision (ID) at 11. Therefore, she gave greater weight to the sworn statements provided by the appellant’s supervisor and the Lead Administrative Patent Judge (APJ) regarding the training, work product, duties, and responsibilities of Patent Examiners and Patent Attorneys. Id. As the appellant correctly argues on review, however, this was error. Petition for Review (PFR) File, Tab 5 at 12. The appellant was pro se below and personally filed his pleadings through the Board’s e-Appeal system, affirming that his pleadings asserted facts from his personal knowledge and that he declared under penalty of perjury that the facts stated in the pleading were true and correct. IAF, Tab 4 at 4, Tab 9 at 3, Tab 14 at 11. Nonetheless, having considered the factors relevant to assessing the probative value of hearsay evidence and the credibility of an out-of-court declarant, we agree with the administrative judge that the statements by the appellant’s supervisor and the Lead APJ regarding the training, work product, duties, and responsibilities of the Patent Attorney and Patent Examiner positions are more probative than the appellant’s statements and are entitled to greater weight. See Borninkhof v. Department of Justice , 5 M.S.P.R.2 77, 83-87 (1981) (setting forth the factors relevant to assessing the probative value of hearsay evidence); see also Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987) (setting forth the factors relevant to assessing a witness’s credibility). Accordingly, the administrative judge’s error in finding that the appellant’s statements were not submitted under penalty of perjury did not prejudice his substantive rights and provides no basis for reversal of the initial decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984). ¶3The appellant also argues that the administrative judge considered a Patent Examiner performance plan that was not in the record and that her reliance on the document constituted a “fatal error” and deprived him of due process. PFR File, Tab 5 at 17 (citing ID at 16-17). It appears that the Patent Examiner performance plan is contained in the second part of the agency file that, due to an administrative error, was not properly placed in the initial appeal file index or the e-Appeal repository until after the appellant filed his petition for review.2 PFR File, Tab 7. However, the appellant submitted his reply to the agency’s response to his petition for review after the Office of the Clerk of the Board notified the parties of the issue and corrected the record. PFR File, Tabs 7, 9. Thus, he had an opportunity to address the second part of the agency file in his reply and, in fact, did so. PFR File, Tab 9 at 11-14. Thus, we find that the appellant has not been prejudiced by the filing error. See Panter, 22 M.S.P.R. at 282. ¶4We have considered the appellant’s other arguments in support of his contention that the administrative judge erred in finding that the Patent Attorney and Patent Examiner positions were not the “same or similar” within the meaning of 5 U.S.C. § 7511(a)(1)(C)(ii), but we find no reason to reweigh the evidence or 2 The second part of the agency file also contains a GS-14 Patent Examiner position description, information from the agency’s public website regarding the Patent Examiner position and career opportunities, and a Patent Attorney position description. IAF, Tab 6 at 23-60 of 61. 3 otherwise disturb the administrative judge’s explained findings.3 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). NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 3 For the first time on review, the appellant has submitted April and May 2015 emails confirming his selection for the Patent Attorney position and his start date. PFR File, Tab 5 at 30-31. We have reviewed the documents but find that the appellant has not shown that those documents were unavailable prior to the close of the record below, despite his due diligence. Therefore, we do not consider them. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you5 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 6 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.8	Darrow_Justin_DC-0752-17-0644-I-1 Final_Order.pdf	2023-12-06	JUSTIN THOMAS DARROW v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0752-17-0644-I-1, December 6, 2023	DC-0752-17-0644-I-1	NP
2,640	https://www.mspb.gov/decisions/nonprecedential/Giddings_Sonya_PH-1221-16-0474-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SONYA GIDDINGS, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency.DOCKET NUMBER PH-1221-16-0474-W-1 DATE: December 6, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sonya Giddings , Philadelphia, Pennsylvania, pro se. Edward C. Tompsett , Philadelphia, Pennsylvania, 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 her 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 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED by this Final Order to clarify the basis of the Board’s jurisdiction and to find that the administrative judge erred in reaching the issue of whether the agency proved by clear and convincing evidence that it would not have selected the appellant absent her protected activity, we AFFIRM the initial decision. BACKGROUND ¶2In March 2016, the appellant applied for a Claims Representative position under vacancy announcement number (VAN) SN-1640477 for positions being filled in three agency offices in New Jersey: Cherry Hill, Mount Holly, and Trenton. VAN SN-1640477 accepted applicants from any United States citizen, including non-agency employees, such as the appellant. Initial Appeal File (IAF), Tabs 23, 26. The appellant was not selected for a position in any of the offices. IAF, Tabs 23, 26. On May 23, 2016, the appellant filed a complaint with the Office of Special Counsel (OSC) alleging that the agency did not select her for the positions in retaliation for a complaint that she filed with OSC on August 2, 2014, and for an individual right of action (IRA) appeal, Giddings v. Social Security Administration , MSPB Docket No. PH-1221-15-0302-W-1, which she filed with the Board on April 13, 2015. IAF, Tab 1 at 13-27. After her complaint had been pending with OSC for more than 120 days, she filed the instant IRA appeal with the Board. Id. at 1. She did not request a hearing. Id. at 4.2 ¶3Based on the written record, the administrative judge found that the appellant established jurisdiction over her appeal. IAF, Tab 47, Initial Decision (ID) at 1-2. The administrative judge also found that the appellant established that she engaged in protected activity under 5 U.S.C. § 2302(b)(9) that may form the basis of an IRA appeal. ID at 10. However, he found that the appellant failed to show by preponderant evidence that her protected activity was a contributing factor to her nonselection for any of the Claims Representative positions because the selecting officials did not know of her protected activity. ID at 11 -13. He also found that the agency established by clear and convincing evidence that it would not have selected the appellant absent the protected activity. ID at 14-19. The administrative judge denied the appellant’s request for corrective action. ID at 19. ¶4In her petition for review, the appellant alleges that one of the selectees for the Claims Representative position in Trenton was not best qualified and should not have been selected over the appellant. Petition for Review (PFR) File, Tab 1 at 4. She also contends that, in finding that she did not prove that her protected activity was a contributing factor in the nonselections, the administrative judge erred in failing to consider the “cat’s paw” theory, i.e., that the selecting officials had constructive knowledge of the appellant’s protected activity. Id. at 5-9. Additionally, the appellant alleges that the administrative judge was biased. Id. at 9. After she filed her petition for review, the appellant sought anonymity by filing a motion for John Doe status for this appeal, her April 13, 2015 IRA appeal, and another previous IRA appeal, Giddings v. Department of Veterans Affairs , MSPB Docket No. PH-1221-15-0411-W-1. PFR File, Tab 4. The agency responded in opposition to the petition for review. PFR File, Tab 3. 3 ANALYSIS The appellant’s motion for John Doe status is denied. ¶5The Board has not adopted a rigid, mechanical test for determining whether to grant anonymity in cases, but instead applies certain general principles in making such determinations. Ortiz v. Department of Justice , 103 M.S.P.R. 621, ¶ 10 (2006). Those factors include whether identification creates a risk of retaliatory physical or mental harm, whether anonymity is necessary to preserve privacy in a matter of a sensitive and highly personal nature, or whether the anonymous party is compelled to admit her intention to engage in illegal acts, thereby risking criminal prosecution. Pinegar v. Federal Election Commission , 105 M.S.P.R. 677, ¶ 10 (2007). The Board also considers whether anonymity is necessary to prevent a clearly unwarranted invasion of a third party’s privacy or whether anonymity is necessary to preserve the appellant’s physical safety. Id. Other potentially relevant factors include whether the appellant requested anonymity at the beginning of the proceeding before the Board versus immediately after the need for anonymity became apparent, and which party placed the sensitive matter in question at issue in the appeal. Id. ¶6A party seeking anonymity must overcome the presumption that parties’ identities are public information. Id., ¶ 11. Anonymity should be granted to litigants before the Board only in unusual circumstances, and determining whether to grant anonymity must depend on the particular facts of each case. Id. A litigant seeking anonymity before the Board must present evidence establishing that harm is likely, not merely possible, if her name is disclosed. Even if some harm is likely, the Board grants anonymity only when the likelihood and extent of harm to the appellant significantly outweighs the public interest in the disclosure of the parties’ identities. Id. ¶7We require parties requesting anonymity to make an actual evidentiary showing that “harm is likely, not merely possible, if his or her name is disclosed.” Ortiz, 103 M.S.P.R. 621, ¶ 10. The appellant has offered nothing more than a4 bare allegation that her cases being public creates an “unwarranted invasion of privacy”; she has not explained why “harm is likely,” and she has not offered any evidence to support her allegation. PFR File, Tab 4 at 4. Thus, we conclude that she has not rebutted the presumption that parties’ identities are public information in Board cases, and we deny her motion. The appellant failed to show that the administrative judge was biased. ¶8In making a claim of bias or prejudice against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators. Smets v. Department of the Navy , 117 M.S.P.R. 164, ¶ 15 (2011), aff’d, 498 F. App’x 1 (Fed. Cir. 2012); 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 his comments or actions evidence “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)); Smets, 117 M.S.P.R. 164, ¶ 15. The appellant’s allegations on review, which do not relate to any extrajudicial conduct by the administrative judge, neither overcome the presumption of honesty and integrity that accompanies an administrative judge nor establish that he showed a deep-seated favoritism or antagonism that would make fair judgment impossible. Accordingly, she has failed to show bias. The Board has jurisdiction over this appeal. ¶9Although the administrative judge found that the appellant established Board jurisdiction over her appeal, ID at 1, he erred in failing to provide any reasoning for his finding. An initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the administrative judge’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests . Spithaler v. Office of Personnel5 Management, 1 M.S.P.R. 587, 589 (1980). Because the record is complete, we have considered whether the Board has jurisdiction over this appeal. ¶10The Board has jurisdiction over an IRA appeal if the appellant establishes by preponderant evidence that she exhausted her administrative remedies before OSC and makes nonfrivolous allegations that (1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001); Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 6 (2014). Here, the appellant exhausted her administrative remedies with OSC concerning her allegations that she was not selected for various Claims Representative positions in retaliation for her August 2, 2014 OSC complaint and April 13, 2015 IRA appeal.2 IAF, Tab 1 at 17-18. In addition, she made a nonfrivolous allegation that her August 2, 2014 OSC complaint, in which she alleged that her supervisor violated 5 U.S.C. § 2302(b)(4) by providing a false reference, constitutes protected activity under 5 U.S.C. § 2302(b)(9)(C). That section provides that an employee engages in protected activity when she cooperates with or discloses information to OSC in accordance with applicable provisions of law. See 5 U.S.C. § 1214 (authorizing OSC to receive and investigate allegations of prohibited personnel practices).3 2 To the extent the appellant alleges retaliation in connection with vacancies that were filled after she filed her May 23, 2016 OSC complaint, IAF, Tab 1 at 12, she has not shown that she exhausted her administrative procedures with OSC regarding those nonselections. Thus, the Board does not have jurisdiction to address whether those nonselections were retaliatory. See Linder, 122 M.S.P.R. 14, ¶ 6. 3 The appellant’s April 13, 2015 IRA appeal, in which she also alleged retaliation for filing her August 2, 2014 OSC complaint, appears to constitute protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii), which covers “the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation . . . other than with regard to remedying a violation of paragraph (8).” Because the Board has not been granted6 ¶11We further find that the appellant nonfrivolously alleged that this protected activity was a contributing factor in a personnel action taken against her. One way to establish the contributing factor criterion is through the knowledge/timing test, under which an employee may nonfrivolously allege that the protected activity was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official taking the personnel action knew of the protected activity and that the personnel action occurred within a period of time such that a reasonable person could conclude that the protected activity was a contributing factor in the personnel action. See Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 10 (2013). Here, the appellant alleges that many of the agency employees involved in the selections for the Claims Representative positions were aware of her protected activity because they gave statements in her April 13, 2015 Board appeal, in which her August 2, 2014 complaint to OSC was an issue, and thus, they knew of her protected activity. IAF, Tab 13 at 4-5. We therefore find that the appellant made a nonfrivolous allegation satisfying the knowledge prong of the knowledge/timing test. Regarding the timing prong of the knowledge/timing test, the nonselections at issue occurred by May 23, 2016, within 22 months after the appellant filed her August 2, 2014 OSC complaint, and the Board has held that a personnel action that occurs within 2 years of the appellant’s protected activity satisfies the timing prong of the knowledge/timing test. See Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶ 23 (2013). ¶12Finally, we find that the appellant made a nonfrivolous allegation that the agency failed to take a personnel action as defined by 5 U.S.C. § 2302(a) by not selecting her for a Claims Representative position. A nonselection is a “personnel appeal jurisdiction over allegations of retaliation for activity protected under § 2302(b)(9)(A)(ii), our jurisdiction over this appeal does not extend to the appellant’s allegation that the agency did not select her for the Claims Representative positions in retaliation for her April 13, 2015 appeal. See Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 7 (2013). 7 action” for purposes of the Whistleblower Protection Act. 5 U.S.C. § 2302(a)(2)(A); Reeves v. Department of the Army , 99 M.S.P.R. 153, ¶ 15 (2005); Embree v. Department of the Treasury , 70 M.S.P.R. 79, 86 (1996); see also Greenspan v. Department of Veterans Affairs , 94 M.S.P.R. 247, ¶ 14 (2003) (finding that when the appellant makes a nonfrivolous allegation that at least one alleged personnel action was taken in retaliation for at least one alleged protected disclosure, he establishes the Board’s jurisdiction over his IRA appeal), rev’d on other grounds, 464 F.3d 1297 (Fed. Cir. 2006). Accordingly, we find that the appellant established jurisdiction over this IRA appeal. See Linder, 122 M.S.P.R. 14, ¶ 6. The appellant failed to establish a prima facie case of retaliation for protected activity. ¶13After establishing the Board’s jurisdiction in an IRA appeal, the appellant then must establish a prima facie case of retaliation by proving by preponderant evidence that she made a protected disclosure or engaged in protected activity that was a contributing factor in a personnel action taken against her. 5 U.S.C. § 1221(e)(1); Mattil v. Department of State , 118 M.S.P.R. 662, ¶ 11 (2012). If the appellant meets that burden, then the Board shall order such corrective action as it considers appropriate unless the agency shows by clear and convincing evidence that it would have taken the same personnel action absent the protected disclosure or activity. 5 U.S.C. § 1221(e)(1)–(2); Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 12 (2011). ¶14In early 2016, the agency approved the hiring of Claims Representatives in Cherry Hill, Mount Holly, and Trenton. IAF, Tab 23 at 25. To fill the open positions, the agency posted two different vacancy announcements. Id. First, the agency internally posted VAN SN-1634926, which accepted applications from current agency employees only. Id. at 26. This vacancy announcement was open from February 24 through March 16, 2016. Id. The agency also posted a vacancy announcement for the Claims Representative position under VAN SN-1640477.8 Id. This vacancy announcement was open from March 1 through March 2, 2016. Id. As noted, the appellant applied only under VAN SN-1640477. ¶15The district managers throughout New Jersey were given a certain number of Claims Representative positions to fill in their respective field offices based on factors such as staffing needs, the loss of any employees, and available space for new employees. Id. The Deputy Area Director, who had authority to approve the district managers’ selections, explained that, in selecting applicants for the Claims Representative positions, the district manager of each field office was first to consider only internal applicants who applied under VAN SN-1634926. Id. If there were remaining vacancies in the field offices after the district managers selected from the list of internal applicants, the district managers would then consider the eligible external applicants under VAN SN-1640477. Id. However, veteran applicants for the Claims Representative position under the external vacancy announcement were considered before any nonveterans. Id. Consequently, the district managers interviewed each veteran to assess the veteran’s ability to “meet and deal” with the public based on the applicant’s responses to situational questions. Id. If a veteran “passed” the interview, the veteran could be selected for an open position that still existed after hiring occurred from the internal vacancy announcement. Id. at 27. After completing the veteran interviews, all field office managers conducted “meet and deal” interviews of the eligible nonveteran applicants, including the appellant, under the external vacancy. Id. The appellant presented no evidence or argument to dispute that Claims Representative positions were filled in the manner as set out by the agency in its submissions. ¶16The Cherry Hill office had three vacancies. Id. at 28. The District Manager of the Cherry Hill office selected two applicants from the internal vacancy VAN. Id. at 37-40. As noted, the appellant did not apply under this vacancy announcement, and, under the circumstances presented here—wherein she failed to rebut the agency’s evidence that district managers must first select from9 internal candidates to fill Claims Representative positions—any selections under that announcement could not be considered nonselections of the appellant. Thus, we find that the appellant failed to establish by preponderant evidence that the Cherry Hill District Manager took a personnel action as defined by 5 U.S.C. § 2302(a) regarding the appellant under VAN SN-1634926. ¶17The Cherry Hill District Manager also made a selection under VAN SN-1640477. Id. She selected a veteran, pursuant to the selection sequence prescribed by higher agency managers. Notwithstanding the selection sequence, because the Cherry Hill District Manager made a selection under VAN SN-1640477, and did not select the appellant, she established by preponderant evidence that one nonselection under VAN SN-1640477 for a Claims Representative position in the agency’s Cherry Hill office was a personnel action taken against her under § 2302(a). However, the District Manager of the Cherry Hill office declared under penalty of perjury that she “was unaware of [the appellant’s] Office of Special Counsel complaints concerning her former supervisor or her prior Merit Systems Protection Board (MSPB) appeal.” IAF, Tab 23 at 40. The appellant presented no evidence or argument to rebut this declaration, and thus, she failed to prove by preponderant evidence under the knowledge prong of the knowledge/timing test that her protected activity was a contributing factor to her nonselection for a Claims Representative position in the Cherry Hill Office. ¶18The Mount Holly office had two vacancies. Id. at 34-36. The District Manager filled both of these vacancies from internal candidates. Id. As with the internal selections made by the Cherry Hill District Manager, we find that the appellant failed to establish by preponderant evidence that the Mount Holly District Manager took a personnel action as defined by 5 U.S.C. § 2302(a) regarding the appellant under VAN SN-1634926. ¶19The Trenton office had three vacancies. Id. at 30-33. The District Manager made all of his selections from VAN SN-1640477, two veterans and one10 nonveteran. Id. He did not select the appellant. Therefore, the appellant established by preponderant evidence that her nonselections for the Trenton office were personnel actions under § 2302(a). However, the District Manager of the Trenton office declared under penalty of perjury that when “selecting applicants to the Claims Representative position, I was unaware of Appellant’s complaint concerning her former supervisor, any Office of Special Counsel complaint, or Appellant’s prior Merit Systems Protection Board (MSPB) appeal.” Id. at 32. As explained more fully below, the appellant did not rebut this declaration, and thus, she failed to prove by preponderant evidence under the knowledge prong of the knowledge/timing test that her protected activity was a contributing factor to her nonselection for a Claims Representative position in the Trenton office. ¶20As the appellant argues on review, the administrative judge did not use the phrase “cat’s paw” theory in his finding that the appellant failed to show that the Trenton District Manager’s not selecting her for the Claims Representative position was influenced by other agency employees who knew of the appellant’s protected activity. PFR File, Tab 1 at 5-9. The Supreme Court has adopted the term “cat’s paw” to describe a case in which a particular management official, acting because of an improper animus, influences another agency official who is unaware of the improper animus when implementing a personnel action. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 11 (2012) (citing Staub v. Proctor Hospital , 562 U.S. 411 (2011)). Under the cat’s paw theory, an appellant can establish that a prohibited animus toward a whistleblower was a contributing factor in a personnel action by showing by preponderant evidence that an individual with knowledge of the protected disclosure influenced the officials who are accused of taking the personnel actions. Aquino v. Department of Homeland Security , 121 M.S.P.R. 35, ¶ 23 (2014). Here, although the administrative judge did not use the term “cat’s paw,” he carefully considered whether the employees who knew of the appellant’s protected activity influenced the Trenton District Manager’s decision to not select the appellant, and he11 properly found that the appellant failed to show that they had done so. ID at 12-13. Thus, we find that appellant’s argument that the Trenton District Manager was aware of her OSC complaint under “cat’s paw” theory is unavailing. ¶21Because the appellant failed to show by preponderant evidence that her nonselection for two positions in the Cherry Hill office under VAN SN-1634926 and two positions in the Mount Holly office under VAN SN-1634926 were personnel actions, she failed to meet her burden to prove a prima facie case of retaliation regarding those nonselections. Further, because the appellant failed to demonstrate by preponderant evidence that the district managers who made the selections from VAN SN-1640477 knew of her protected activity, she failed to show by preponderant evidence that her protected activity was a contributing factor to those nonselections, and thus failed to prove her prima facie case of retaliation for those nonselections. See Iyer v. Department of the Treasury , 95 M.S.P.R. 239, ¶ 9 (2003), aff’d, 104 F. App’x 159 (Fed. Cir. 2004). Accordingly, we find that the administrative judge properly denied the appellant’s request for corrective action. Id., ¶ 10. ¶22Despite the appellant’s failure to establish a prima face case of retaliation, the administrative judge proceeded to make findings on whether the agency had proved by clear and convincing evidence that it would not have selected the appellant for the Claims Representative position despite her protected activity. ID at 14-19. An administrative judge only reaches the agency’s burden to prove that it would have taken the same action absent the appellant’s protected activity after the appellant has met her burden to establish a prima facie case. See Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 13 (2016). Given his correct finding that the appellant failed to prove her prima facie case, it was inappropriate for the administrative judge to determine whether the agency proved by clear and convincing evidence that it would have taken the same action absent the appellant’s whistleblowing. See Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10 (2014) (stating that the Board may not proceed to the12 clear and convincing evidence test unless it has first determined that the appellant established his prima facie case), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). Accordingly, we vacate the administrative judge’s findings that the agency proved by clear and convincing evidence that it would not have selected the appellant for the Claims Representative position absent her whistleblowing. The appellant’s allegation that she was better qualified than the selectee for the Claims Representative position in Trenton is beyond the scope of this appeal. ¶23In an IRA appeal, the Board lacks the authority to adjudicate the merits of the underlying personnel action; rather, our jurisdiction is limited to adjudicating the whistleblower allegations. See Marren v. Department of Justice , 51 M.S.P.R. 632, 639 (1991), aff’d, 980 F.2d 745 (Fed. Cir. 1992) (Table), and modified on other grounds by Robinson v. U.S. Postal Service , 63 M.S.P.R. 307, 323 n.13 (1994). Thus, we do not have jurisdiction to make findings on the appellant’s assertion that she should have been selected for the Claims Representative position in the agency’s Trenton office because she was better qualified than the selectee. 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 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.13 this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The14 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file15 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 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. Contact information for the courts of appeals can be 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.17	Giddings_Sonya_PH-1221-16-0474-W-1_Final_Order.pdf	2023-12-06	SONYA GIDDINGS v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-1221-16-0474-W-1, December 6, 2023	PH-1221-16-0474-W-1	NP
2,641	https://www.mspb.gov/decisions/nonprecedential/Zygmunt_Kevin_Ray_PH-0752-21-0342-I-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KEVIN RAY ZYGMUNT, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER PH-0752-21-0342-I-1 DATE: December 5, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Chungsoo J. Lee , Jenkintown, Pennsylvania, for the appellant. Courtney Hatcher , Philadelphia, Pennsylvania, for the agency. Kimberly Miller , Mechanicsburg, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which sustained the appellant’s removal based on the charge of conduct unbecoming a Federal employee. On petition for review, the appellant argues the following: (1) the agency failed to properly warn and take corrective measures; (2) the agency failed to consider alternative sanctions to deter future misconduct; 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). (3) the penalty was excessive and was beyond reasonableness in its severity. Petition for Review (PFR) File, Tab 1 at 4.2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b). 2 Among other things, the appellant challenges a purported finding by the administrative judge that the notice of proposed removal constituted a warning that his behavior was unacceptable. PFR File, Tab 1 at 5-8. We disagree that the administrative judge found that the notice of proposed removal constituted a warning as relevant to the penalty factors, and we note that the appellant appears to rely on a typographical error in the initial decision. Id.; Initial Appeal File, Tab 48, Initial Decision (ID) at 35. 3 Since the issuance of the initial decision in this matter, the Board has clarified some standards referenced in the initial decision. First, in Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 21-22, 30, the Board clarified that an appellant may prove discrimination by showing that a prohibited consideration under Title VII was a motivating factor in the contested personnel action. The Board also clarified that an appellant claiming retaliation for filing a disability discrimination claim must prove that his protected activity was the “but-for” cause of the contested personnel action. Pridgen, 2022 MSPB 31, ¶¶ 44-47. We discern no reason to disturb the administrative judge’s finding that the appellant failed to prove by preponderant evidence that retaliation for equal employment opportunity activity was a motivating factor in the agency’s removal action. ID at 17-20; see Savage v. Department of the Army , 122 M.S.P.R. 612 (2015), overruled in part by Pridgen , 2022 MSPB 31, ¶¶ 23-25. Because the appellant failed to prove motivating factor, he necessarily failed to meet the more stringent “but-for” standard as well. See Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 31.2 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 Second, in Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 14, the Board overruled Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657 (2010), to clarify that, when analyzing disparate penalty claims, broad similarity between employees is insufficient to establish that they are appropriate comparators, and to hold that the relevant inquiry is whether the agency knowingly and unjustifiably treated employees who engaged in the same or similar offenses differently. The administrative judge’s reference to the standard set forth in Lewis was not prejudicial in this case because she properly found that the appellant failed to satisfy even that less onerous standard. ID at 33-34. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file4 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 5 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Zygmunt_Kevin_Ray_PH-0752-21-0342-I-1_Final Order.pdf	2023-12-05	KEVIN RAY ZYGMUNT v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-21-0342-I-1, December 5, 2023	PH-0752-21-0342-I-1	NP
2,642	https://www.mspb.gov/decisions/nonprecedential/Jawad_Rafiq_Y._PH-0845-21-0072-I-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RAFIQ Y. JAWAD, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER PH-0845-21-0072-I-1 DATE: December 5, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lynette A. Whitfield , Esquire, Rockville, Maryland, for the appellant. Karla W. Yeakle , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his appeal of a reconsideration decision issued by the Office of Personnel Management (OPM) as untimely filed without good cause shown. On petition for review, the appellant reiterates his arguments from below that he established good cause for his untimely filing and also argues, for the first time, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). that OPM did not inform him of his Board appeal rights. Petition for Review (PFR) File, Tab 2 at 6-12. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established 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). ¶2The administrative judge correctly found that the appellant’s appeal of OPM’s reconsideration decision was untimely filed by 108 days. Initial Appeal File (IAF), Tab 8, Initial Decision (ID) at 3-4. She also found that the appellant’s arguments that he relied on prior counsel’s advice to email his appeal to the regional office within the filing period and that he had two relatives contract COVID-19, which prevented him from following up on his email attempt to file his appeal, failed to show that he timely filed his appeal or that good cause existed for the untimely filing. ID at 4-5. The appellant renews these arguments on review, PFR File, Tab 2 at 8, 10-12, but, as explained below, we agree with the administrative judge’s conclusion.2 2 The appellant asks on review that, if the Board agrees with the administrative judge that his appeal was untimely filed without good cause shown, which, as explained here, we do, we exercise our authority under 5 C.F.R. § 1201.118 to reopen his appeal. PFR File, Tab 2 at 12-13. That regulation provides that “the Board may at any time reopen any appeal in which it has issued a final order or in which an initial decision has become the Board’s final decision by operation of law.” See 5 C.F.R. § 1201.118. The2 ¶3Regarding the appellant’s reliance on advice of counsel to email his appeal, the Board’s regulations explain that it will not accept pleadings by email and set forth acceptable methods of filing to include commercial or personal delivery, facsimile, mail, or electronic filing with the Board’s e-Appeal system. See 5 C.F.R. §§ 1201.14 (d), 1201.22(d). It is well settled that an appellant is responsible for the errors of a chosen representative. See Sofio v. Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981). As such, the appellant’s reliance on his counsel’s advice to file his appeal by email does not constitute good cause for an untimely filing. See Hairston v. Department of Defense , 119 M.S.P.R. 162, ¶ 18 (2013) (explaining that a representative’s mistaken belief regarding the applicable law and Board procedures provided no basis for waiving a filing deadline), modified on other grounds by Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, ¶ 18 n.7 (2014). Additionally, the Office of the Clerk of the Board responded to the appellant’s emailed submission only a few days later, explaining that the Board does not accept submissions by email and explaining the appropriate filing methods. PFR File, Tab 2 at 20. Nonetheless, the appellant did not file his appeal until nearly 4 months later. ¶4Regarding the appellant’s claim that two of his relatives contracted COVID-19 and that his care of those relatives prevented him from checking his email to learn that the Board had attempted to inform him that email was not an acceptable method of filing,3 we agree with the administrative judge’s conclusion application of this regulation to the instant appeal is unclear because at the time the appellant filed his petition for review, there was no final decision in this matter that the Board could reopen. Rather, the Board’s final decision on the matter is the instant decision issued here. Thus, 5 C.F.R. § 1201.118 would not be an operative remedy for the appellant, and his reliance on it for relief is misplaced. In any event, the Board generally does not reopen cases to cure an untimely filing. See Nohr v. U.S. Postal Service, 112 M.S.P.R. 220, ¶ 10 (2009). 3 The appellant explains in his petition for review that he sent the August 28, 2020 email attempting to effectuate an appeal with the assistance of a friend because she had a computer and that the Board’s subsequent response email was sent to her email address. PFR File, Tab 2 at 6. We make no distinction, however, because the appellant should have known to check the email account from which he attempted to file his3 that the existence of ill relatives, without more, is insufficient to establish circumstances beyond the appellant’s control that affected his ability to comply with the time limits. ID at 5. The appellant’s argument on review that he was required to travel to South Carolina to care for those relatives still does not show that he was faced with circumstances beyond his control that prevented him from filing a timely appeal. PFR File, Tab 2 at 8. ¶5The appellant argues on review, for the first time, that OPM did not inform him of his right to appeal to the Board, and he submits what he asserts is a full copy of the reconsideration decision, which does not appear to include Board appeal rights. PFR File, Tab 2 at 11, 16-18. The Board generally will not consider an argument raised for the first time on review absent a showing of new and material evidence not previously available despite due diligence, see Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016), nor will it consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record closed before the administrative judge despite the party’s due diligence, see Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). The appellant has not made either showing. Nonetheless, because of the gravity of this allegation, we have considered both the argument and evidence here. ¶6Although the appellant appears to be correct that OPM failed to inform him of his appeal rights, and OPM has not shown otherwise, the Board has held that, if an agency fails to advise an employee of appeal rights when it should have done so, the appellant is not required to show that he exercised due diligence in attempting to discover his appeal rights; rather, he must show that he was diligent in filing an appeal after learning he could do so. See Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 5 (2011), aff’d, 469 F. App’x 852 (Fed. Cir. 2011). By the appellant’s own admission, he consulted with an attorney almost immediately after OPM issued its reconsideration decision, who advised him of appeal for any updates from the Board. 4 his appeal rights and instructed him to file an appeal by email, which he did on August 28, 2020. PFR File, Tab 2 at 6, 20. As such, even if OPM failed to provide the appellant with appeal rights, it was not that failure that led to the untimely filing. Rather, the appellant appears to have learned of his appeal rights within the 30-day filing period but admits that he relied on advice of prior counsel to file appeal documents via email, id. at 10-11, despite the Board’s regulations, which, as set forth above, explicitly prohibit emailed pleadings and provide for acceptable methods of filing, see 5 C.F.R. §§ 1201.14(d), 1201.22(d). Also, the Board promptly responded to the appellant’s attempt to file by email, informing him of the proper ways to file an appeal. PFR File, Tab 2 at 20. We reiterate that an appellant is responsible for the errors of his chosen representative. Hairston, 119 M.S.P.R. 162, ¶ 18; see also Sofio, 7 M.S.P.R. at 670. Accordingly, the appellant’s argument does not provide a basis to disturb the initial decision.4 4 In addition to OPM’s reconsideration decision and the email correspondence with the Board from August 2020, the appellant also submits with his petition for review a financial resources questionnaire and a decision from the Social Security Administration (SSA) regarding an overpayment of disability insurance benefits. PFR File, Tab 2 at 24-29. As set forth above, the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record closed before the administrative judge despite the party’s due diligence. S ee Avansino, 3 M.S.P.R. at 213-14. Here, the financial resources questionnaire appears undated, and the SSA decision is dated January 30, 2018. The appellant’s instant appeal was filed on December 14, 2020. IAF, Tab 1. Thus, at least one of the documents was available before the record closed before the administrative judge, and the appellant has not explained why he was unable to submit it below. Regardless, the documents appear to relate to the underlying OPM reconsideration decision, and the appellant has not explained how these documents are relevant to the question of timeliness, nor has he otherwise shown that they of sufficient weight to warrant an outcome different than that of the initial decision, and thus, they do not provide a basis to grant the petition for review. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating that the Board generally will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision).5 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). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.6 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any7 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s8 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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	Jawad_Rafiq_Y._PH-0845-21-0072-I-1_Final Order.pdf	2023-12-05	RAFIQ Y. JAWAD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0845-21-0072-I-1, December 5, 2023	PH-0845-21-0072-I-1	NP
2,643	https://www.mspb.gov/decisions/nonprecedential/Gillard_Ronald_AT-0752-22-0219-I-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RONALD GILLARD, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER AT-0752-22-0219-I-1 DATE: December 4, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Georgia A. Lawrence , Esquire, and Shaun Southworth , Esquire, Atlanta, Georgia, for the appellant. Timothy F. Maughan , Grand Prairie, Texas, 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 30-day suspension for failure to ensure compliance with security procedures and failure to follow his supervisor’s instructions. On petition for review, the agency generally challenges the administrative judge’s evaluation of the evidence and her findings that the agency failed to prove 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). charges. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ORDER ¶2We ORDER the agency to cancel the 30-day suspension and to restore the appellant effective February 7, 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. ¶3We 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. 2 ¶4We 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). ¶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 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.3 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 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any5 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s6 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ 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.	Gillard_Ronald_AT-0752-22-0219-I-1_Final Order.pdf	2023-12-04	RONALD GILLARD v. DEPARTMENT OF JUSTICE, MSPB Docket No. AT-0752-22-0219-I-1, December 4, 2023	AT-0752-22-0219-I-1	NP
2,644	https://www.mspb.gov/decisions/nonprecedential/Spain_Raymond_AT-0831-20-0105-X-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RAYMOND SPAIN, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER AT-0831-20-0105-X-1 DATE: December 4, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant. Jo Antonette Bell , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant filed a petition for enforcement of the Board’s September 22, 2022 final decision in the underlying matter, Raymond Spain v. Office of Personnel Management , MSPB Docket No. AT-831-20-105-I-3, Final Order (September 22, 2022). The administrative judge granted the petition for enforcement, finding the agency in noncompliance with the Board’s final 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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. Raymond Spain v. Office of Personnel Management , MSPB Docket No. AT-831-20-105-C-1, Compliance Initial Decision (March 30, 2023). For the reasons set forth below, we now DISMISS the petition for enforcement as settled. ¶2On September 6, 2023, the parties submitted a settlement agreement into the record. Raymond Spain v. Office of Personnel Management , MSPB Docket No. AT-831-20-105-X-1, Compliance Referral File (CRF), Tab 4. On November 17, 2023, the appellant moved to dismiss the matter as settled. CRF, Tab 5 at 2. ¶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. CRF, Tab 4 at 4-6. Accordingly, we find that dismissing the petition for enforcement with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances. In addition, we find that the agreement is lawful on its face and freely entered into, and we accept the settlement agreement into the record for enforcement purposes. ¶5This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). NOTICE TO THE PARTIES OF THEIR ENFORCEMENT RIGHTS If the agency or the appellant has not fully carried out the terms of the agreement, either party may ask the Board to enforce the settlement agreement by2 promptly filing a petition for enforcement with the office that issued the initial decision on this appeal. The petition should contain specific reasons why the petitioning party believes that the terms of the settlement agreement have not been fully carried out, and should include the dates and results of any communications between the parties. 5 C.F.R. § 1201.182(a). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on4 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Spain_Raymond_AT-0831-20-0105-X-1_Final Order.pdf	2023-12-04	RAYMOND SPAIN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831-20-0105-X-1, December 4, 2023	AT-0831-20-0105-X-1	NP
2,645	https://www.mspb.gov/decisions/nonprecedential/Kennedy-Oluwatuyi_Shondral_DA-0752-21-0178-I-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SHONDRAL KENNEDY- OLUWATUYI, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER DA-0752-21-0178-I-1 DATE: December 4, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Morgan Smith , Esquire, and Shane Robertson , Esquire, Dallas, Texas, for the appellant. Bridgette M. Gibson , Esquire, and Kayla Fecke , Esquire, Dallas, Texas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which sustained her removal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2On review, the appellant challenges the administrative judge’s conclusion that the agency met its burden of proving its charge—that she provided misleading information. Petition for Review (PFR) File, Tab 3 at 8-18. For the most part, this challenge is based on an assertion that the administrative judge described the proper standard for analyzing intent, id. at 8-9, but then found that the agency met its overall burden without explicitly or adequately addressing intent, id. at 9-17. We are not persuaded by this narrow reading of the initial decision. Initial Appeal File, Tab 42, Initial Decision (ID) at 13-22, 37-38. To the extent that the appellant has otherwise argued that she did not intentionally provide misleading information, e.g., PFR File, Tab 3 at 11, 17-18, we find no basis for disturbing the administrative judge’s conclusions to the contrary, which are largely based upon credibility findings that are entitled to deference. See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1373 (Fed. Cir. 2016). ¶3The appellant next reasserts her claims of sex discrimination and reprisal for engaging in equal employment opportunity (EEO) activity. PFR File, Tab 3 at 22-26. Based again on credibility findings, the administrative judge concluded that the appellant failed to prove that sex or protected EEO activity was a motivating factor in her removal. ID at 28-35. The appellant has not given us2 any reason to conclude otherwise. See Purifoy, 838 F.3d at 1373. We therefore do not reach the question of whether the appellant’s sex or EEO activity was a “but-for” cause of the agency’s removal action. See Pridgen v. Office of Management and Budget , 2022 MSPB 31. ¶4The appellant lastly argues that removal was an excessive penalty. PFR File, Tab 3 at 19-22. However, we agree with the administrative judge’s well-reasoned conclusion that removal is a reasonable penalty for the sustained charge. ID at 36-40. 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 your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Kennedy-Oluwatuyi_Shondral_DA-0752-21-0178-I-1_Final Order.pdf	2023-12-04	null	DA-0752-21-0178-I-1	NP
2,646	https://www.mspb.gov/decisions/nonprecedential/Valenzuela_Rene_DA-0752-21-0239-I-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RENE VALENZUELA, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DA-0752-21-0239-I-1 DATE: December 1, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael Kleinman , Esquire, Amanda J. Moreno , Esquire, Eve Pachter , Esquire, and Eric Lee Pines , Esquire, Houston, Texas, for the appellant. Justin Schnitzer , Esquire, Pikesville, Maryland, for the appellant. Jacquelyn Trevino , Esquire, and Grant Gardner , Esquire, Laredo, Texas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which sustained his demotion and 14-day suspension. On petition for review, the appellant challenges the administrative judge’s findings regarding 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). proof of its charge, failure to follow supervisory instructions in a timely manner. Petition for Review File, Tab 1 at 6-10. The appellant also reasserts his due process claim, id. at 10-13, and challenges the agency’s chosen penalty, id. at 13-17.2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 2 The appellant does not reassert his claims of race, sex, and age discrimination or his claim of reprisal for engaging in equal employment opportunity (EEO) activity. We nevertheless note that the administrative judge found that the appellant failed to prove that race, sex, age, or prior EEO activity were a motivating factor in the instant adverse action. Initial Appeal File, Tab 49, Initial Decision at 16-23. Because we agree, we need not resolve the issue of whether the appellant proved that discrimination or retaliation was a “but-for” cause of the agency’s action. See Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-22, 29-33. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of5 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Valenzuela_Rene_DA-0752-21-0239-I-1_Final Order.pdf	2023-12-01	RENE VALENZUELA v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-21-0239-I-1, December 1, 2023	DA-0752-21-0239-I-1	NP
2,647	https://www.mspb.gov/decisions/nonprecedential/Howard_Larry_W_DA-1221-16-0133-W-3_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LARRY W. HOWARD, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER DA-1221-16-0133-W-3 DATE: December 1, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 N . Sue Allen , Esquire, Fort Worth, Texas, for the appellant. Zandria V. Romero , Dallas, Texas, 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 denied his request for corrective action in connection with his individual right of action appeal. On petition for review, the appellant argues that the administrative judge erred in finding that the agency proved by clear and convincing evidence that it would not have recommended him for promotion absent his 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. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that 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 on the second factor set forth in Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999), we AFFIRM the initial decision.2 2 To the extent that the administrative judge suggested that it is the appellant’s burden to prove a retaliatory motive on the part of agency officials, the administrative judge erred inasmuch as it is the agency’s burden to prove all three Carr factors. Moreover, insofar as the administrative judge found that the relevant agency officials had no motive to retaliate against the appellant, we modify the initial decision to find that these agency officials had some motive to retaliate. See Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 15 (stating that, in assessing Carr factor two, the Board and its administrative judges should avoid an overly restrictive analysis and should fully consider whether a motive to retaliate can be imputed to the agency officials involved and whether those officials possessed a “professional retaliatory motive”). We ultimately agree, however, that the agency met its burden of proof by clear and convincing evidence. Thus, the administrative judge’s errors did not prejudice the appellant’s substantive rights. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984).2 NOTICE OF APPEAL RIGHTS3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any4 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s5 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Howard_Larry_W_DA-1221-16-0133-W-3_Final Order.pdf	2023-12-01	LARRY W. HOWARD v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-1221-16-0133-W-3, December 1, 2023	DA-1221-16-0133-W-3	NP
2,648	https://www.mspb.gov/decisions/nonprecedential/Le_David_DC-0752-22-0240-I-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DAVID LE, Appellant, v. DEPARTMENT OF COMMERCE, Agency.DOCKET NUMBER DC-0752-22-0240-I-1 DATE: December 1, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Chungsoo J. Lee , Jenkintown, Pennsylvania, for the appellant. David Crane , Esquire, and Matthew Blake Huffman , Esquire, 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 sustained his removal based on a charge of failure to follow instructions. On petition for review, the appellant argues, among other things, that he was experiencing technical issues and did not receive his supervisors’ instructions, the agency ignored the technical issues which evidences discriminatory animus, 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). that the administrative judge improperly excluded evidence.2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 2 The administrative judge sanctioned the appellant for failing to comply with her discovery order, prohibiting him from using evidence that had not been timely provided to the agency. Initial Appeal File (IAF), Tab 20, Tab 38 at 1-2. On review, the appellant argues that the agency already had the documents in its possession, because he had provided them during the processing of his equal employment opportunity complaint. Petition for Review File, Tab 1 at 8-13. Because the record establishes that the appellant failed to comply with the administrative judge’s explicit orders to provide the agency with discovery responses in this appeal, we discern no abuse of discretion in the administrative judge’s imposition of a limited and narrow sanction. See Defense Intelligence Agency v. Department of Defense , 122 M.S.P.R. 444, ¶ 16 (2015) (finding no abuse of discretion when the administrative judge imposed sanctions on the appellant for failure to comply with the administrative judge’s explicit instructions). Furthermore, as noted by the administrative judge, the excluded documentation does not affect the outcome of this appeal, and therefore, does not serve as the basis for reversal. IAF, Tab 47, Initial Decision at 7; see Thomas v. U.S. Postal Service , 116 M.S.P.R. 453, ¶ 4 (2011) (holding that, to obtain reversal of an initial decision based on an abuse of discretion in excluding evidence, the appellant must show on review that the disallowed evidence would have affected the outcome of the appeal).2 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any4 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s5 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Le_David_DC-0752-22-0240-I-1_Final Order.pdf	2023-12-01	DAVID LE v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0752-22-0240-I-1, December 1, 2023	DC-0752-22-0240-I-1	NP
2,649	https://www.mspb.gov/decisions/nonprecedential/Khov_Pheng_DC-0432-18-0300-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PHENG KHOV, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency.DOCKET NUMBER DC-0432-18-0300-I-1 DATE: November 30, 2023 THIS ORDER IS NONPRECEDENTIAL1 Joanna Friedman , Esquire, and Sarah L. McKinin , Esquire, Washington, D.C., for the appellant. Stephanie Hosea and Jennifer Smith , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which affirmed his performance-based removal under 5 U.S.C. chapter 43. For the reasons discussed below, we GRANT the appellant’s petition for review, REVERSE the initial decision, and REMAND the case to the regional office 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 further adjudication in accordance with this Remand Order. The appellant’s removal is NOT SUSTAINED. BACKGROUND ¶2On January 8, 2017, the agency appointed the appellant by reinstatement to the position of GS-0343-14 Supervisory Program and Management Analyst in its Bureau of Health Workforce (BHW), Division of Business Operations.2 Initial Appeal File (IAF), Tab 13 at 11. The appellant’s job duties involved managing BHW’s information technology (IT) systems to ensure their efficiency, effectiveness, and legal compliance, as well as managing a team of subordinates and ensuring the efficiency and effectiveness of BHW’s IT workforce. IAF, Tab 13 at 14-15. As a Supervisory Program and Management Analyst, the appellant had five critical performance elements: (1) Teamwork, (2) Customer Service, (3) Leadership, (4) BHW IT Portfolio Oversight, and (5) Special Projects. IAF, Tab 11 at 7-12. His performance was evaluated under a five-tier rating system, from lowest to highest: (1) Achieved Unsatisfactory Results, (2) Partially Achieved Expected Results, (3) Achieved Expected Results, (4) Achieved More than Expected Results, and (5) Achieved Outstanding Results. Id. at 5. ¶3On July 14, 2017, the appellant’s first-level supervisor, the Director of Division Operations, notified him that he was currently performing at an unacceptable level in the critical element of BHW IT Portfolio Oversight and placed him on a 60-day performance improvement plan (PIP). Id. at 23-29. On September 18, 2017, the appellant’s supervisor notified him that he had failed to demonstrate acceptable performance during the PIP, and on November 1, 2017, he proposed the appellant’s performance-based removal under the procedures of 5 U.S.C. chapter 43. IAF, Tab 10 at 14-24, Tab 11 at 30-31. After the appellant responded, on December 29, 2017, the appellant’s supervisor issued a decision 2 It appears that the appellant had career tenure upon reinstatement. IAF, Tab 13 at 11; see 5 C.F.R. §§ 315.201(c)(4), 315.402(b) 3 removing him effective January 8, 2018. IAF, Tab 9 at 25-74, Tab 10 at 4-11, 15-22. ¶4The appellant filed a Board appeal, challenging the merits of his removal and raising affirmative defenses of harmful procedural error and whistleblower reprisal. IAF, Tab 1 at 7, 12, Tab 24 at 1-2. After a hearing, the administrative judge issued an initial decision affirming the appellant’s removal. IAF, Tab 33, Initial Decision (ID). He found that the agency proved its case by substantial evidence, ID at 2-38, and that the appellant failed to prove his affirmative defenses of whistleblower reprisal, ID at 39-53, or harmful procedural error, ID at 53-57. ¶5The appellant has filed a petition for review, arguing that his performance standards were invalid and disputing the administrative judge’s analysis, findings, and credibility determinations with respect to his affirmative defenses. Petition for Review (PFR) File, Tab 5. The agency has filed a response to the petition for review, and the appellant has filed a motion to strike the agency’s response as untimely. PFR File, Tabs 11, 12. ANALYSIS The appellant’s motion to strike the agency’s response to the petition for review is granted. ¶6The agency’s response to the petition for review was originally due on January 4, 2018. PFR File, Tab 1, Tab 6 at 1; see 5 C.F.R. § 1201.114(e). The agency requested an extension of time to file its response, which the Office of the Clerk of the Board granted, setting a new deadline of January 25, 2019. PFR File, Tabs 7, 8. However, at midnight on December 22, 2018, the Board ceased all operations due to a partial government shutdown. PFR File, Tab 10 at 1 n.. The Board promptly issued a press release, notifying the public that all filing and processing dates would be extended by the number of calendar days that the Board was shut down. Press Release, U.S. Merit Systems Protection Board, 4 Status of the U.S. Merit Systems Protection Board During a Partial Government Shutdown (Dec. 21, 2018), available at https://www.mspb.gov/ (last visited November 29, 2023). On January 26, 2019, the Board resumed operations after being shut down for 35 days. PFR File, Tab 10 at 1 n.. Thus, the agency’s January 25, 2019 filing deadline was extended 35 days to March 1, 2019. ¶7On March 4, 2019, the agency requested an extension of time to file its response to the petition for review, which the Office of the Clerk of the Board denied under 5 C.F.R. §1201.114(f) as having been filed past the date that the response was due. PFR File, Tabs 9, 10. On March 6, 2019, the agency filed its response to the petition for review, requesting that the Board find good cause for the untimely filing on the basis that its representative miscalculated the revised filing deadline. PFR File, Tab 11. However, it is well established that a party’s error in calculating the filing deadline generally does not constitute good cause to excuse an untimely filing. See Lapedis v. Department of Health and Human Services, 47 M.S.P.R. 337, 340, aff’d, 949 F.2d 403, (1991) (Table); Gaff v. Department of Transportation , 45 M.S.P.R. 387, 390 n.2 (1990); cf. Walls v. Merit Systems Protection Board , 29 F.3d 1578, 1583-84 (Fed. Cir. 1994) (finding good cause for a 2-day filing delay when instructions on how to calculate the deadline were ambiguous). In the interests of fairness and adjudicatory efficiency, the Board will not waive its timeliness requirements in the absence of good cause, no matter how minimal the delay. Fitzgerald v. Department of Veterans Affairs , 45 M.S.P.R. 222, 223 (1990). The appellant’s motion to strike is granted. PFR File, Tab 12; see Bissett v. U.S. Postal Service , 66 M.S.P.R. 631, 635 n.1 (1995). The agency failed to prove by substantial evidence that its performance standards are valid. ¶8At the time the initial decision was issued, the Board’s case law stated that, to prevail in an appeal of a performance-based action under 5 U.S.C. chapter 43, an agency must establish by substantial evidence that: (1) the Office of Personnel 5 Management approved its performance appraisal system; (2) the agency communicated to the appellant the performance standards and critical elements of his position; (3) the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the agency warned the appellant of the inadequacies of his performance during the appraisal period and gave him a reasonable opportunity to improve; and (5) the appellant’s performance remained unacceptable in at least one critical element.3 White v. Department of Veterans Affairs , 120 M.S.P.R. 405, ¶ 5 (2013). During the pendency of the petition for review in this case, the U.S. Court of Appeals for the Federal Circuit held in Santos v. National Aeronautics and Space Administration , 990 F.3d 1355, 1360-61 (Fed. Cir. 2021), that, in addition to the five elements of the agency’s case set forth in the initial decision, the agency must also justify the institution of a PIP by proving by substantial evidence that the employee’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. ¶9In this case, the administrative judge found that the agency carried its burden on each element. ID at 3-38. On petition for review, the appellant argues that the agency failed to prove the third element of its case because the performance standard at issue was written in negative terms. In other words, it was an impermissible “backwards” standard. PFR File, Tab 1 at 5, 14-20. ¶10In order to be valid under 5 U.S.C. § 4302(c)(1), a performance standard must state in positive terms what an employee must do in order to achieve acceptable performance; it cannot be written in terms of what an employee must not do. Van Prichard v. Department of Defense , 117 M.S.P.R. 88, ¶ 18 (2011), aff’d, 484 F. App’x 489 (Fed. Cir. 2012). Standards of the latter type are known 3 Under the agency’s five-tier performance system, the agency was required to show that the appellant’s performance was at the Unsatisfactory level rather than the Partially Achieved level. See Van Prichard v. v. Department of Defense , 117 M.S.P.R. 88, ¶ 24 (2011), aff’d, 484 F. App’x 489 (Fed. Cir. 2012). 6 as “backwards” standards and are invalid because they do not clearly apprise an employee of what he must do to perform successfully in his position. Eibel v. Department of the Navy , 857 F.2d 1439, 1441-44 (1988); Ortiz v. Department of Justice, 46 M.S.P.R. 692, 695-96 (1991). They identify unacceptable performance rather than acceptable performance. Henderson v. National Aeronautics and Space Administration , 116 M.S.P.R. 96, ¶12 n.3 (2011). ¶11The performance standard at issue in this appeal reads in relevant part as follows: Level 2: Partially Achieved Expected Results (PA) Marginally acceptable; needs improvement; inconsistently meets Leve/3 (AE) performance requirements. The employee has difficulties in meeting expectations. Actions taken by the employee are sometimes inappropriate or marginally effective. Organizational goals and objectives are met only as a result of close supervision. This is the minimum level of acceptable performance for retention on the job. Improvement is necessary. Examples include: • Sometimes meets assigned deadlines; • Work assignments occasionally require major revisions or often require minor revisions; • Inconsistently applies technical knowledge to work assignments; • Employee shows a lack of adherence to required procedures, instructions, and/or formats on work assignments; • Occasionally employee is reluctant to adapt to changes in priorities, procedures or program direction which may contribute to the negative impact on program performance, productivity, morale, organizational effectiveness and/or customer satisfaction. Needs improvement. IAF, Tab 11 at 15-16. The administrative judge considered the appellant’s argument that this standard was invalid for being backward, but he found that when read in conjunction with the performance element at issue and the standards for performance at other levels, the appellant was on adequate notice of what was being required of him. ID at 8-9. 7 ¶12We agree with the appellant that the performance standard for Partially Achieved is backwards as written. We find it materially indistinguishable from the standards at issue in Eibel, 857 F.2d at 1440, Oritz, 46 M.S.P.R. at 695, Jackson-Francis v. Office of Government Ethics , 103 M.S.P.R. 183, ¶ 9 (2006), and the various other cases in which the Board and the Federal Circuit have held performance standards invalid as backwards. It describes unacceptable rather than acceptable performance, and if read literally, the appellant would meet this standard by rendering unacceptable performance. See Burnett v. Department of Health and Human Services , 51 M.S.P.R. 615, 617 (1991). For instance, assuming that the performance deficiencies identified in the notice of proposed removal are accurate, the appellant met the stated requirement that his work will occasionally require major revisions. IAF, Tab 10 at 17-18, 20. In addition, the appellant was alleged to have failed to follow his supervisor’s instructions in completing work assignments, consistent with the terms of the standard. Id. at 20-22. It also appears that the appellant met at least one deadline set by his supervisor, thereby satisfying the only positive, albeit vague, requirement to “sometimes” meet assigned deadlines. IAF, Tab 10 at 20; see Wilson v. Department of Health and Human Services , 770 F.2d 1048, 1053 (Fed. Cir. 1985) (finding that the terms “sometimes” and “occasionally” as used in the appellant’s performance standards were vague). ¶13We have considered whether this backwards standard can be saved by reference to other documents as the administrative judge found. ID at 8-9. It is true that an agency is not prohibited from using more than one document to set forth the standards against which an employee’s performance will be rated, and that certain defects in the standards may be cured by providing additional guidance to be read in conjunction with them. Diprizio v. Department of Transportation, 88 M.S.P.R. 73, ¶¶ 11-12 (2001). However, the Board and the Federal Circuit have both found that, in contrast to vague and subjective performance standards, which can be fleshed out and clarified during counseling, 8 backwards performance standards are beyond salvage because they would need to be completely rewritten in order to describe acceptable performance at all. Eibel, 857 F.2d at 1443; Jackson-Francis, 103 M.S.P.R. 183, ¶ 10; Dancy v. Department of the Navy, 55 M.S.P.R. 331, 335 (1992); Burnett, 51 M.S.P.R. at 617-18. Although we agree with the administrative judge that the performance standards must be read in conjunction with the performance elements, the performance elements appear to describe perfect performance, which is presumably not required even at the “Outstanding” level and is all the more unhelpful to determine the performance required at the “Partially Achieved” level. ID at 8-9, IAF, Tab 11 at 11-12, 15-16. ¶14For these reasons, we find that the agency has failed to prove that its performance standards are valid, and we therefore reverse the appellant’s removal. See Stone v. Department of Health and Human Services , 35 M.S.P.R. 603, 607 (1987). Because we are reversing the agency’s action on the merits, we do not address the appellant’s arguments concerning harmful procedural error.4 PFR File, Tab 1 at 6, 20-23; see Van Prichard , 117 M.S.P.R. 88, ¶¶ 7, 25. The appellant’s whistleblower claim is remanded for further adjudication. ¶15To prove an affirmative defense of whistleblower reprisal, an appellant must show by preponderant evidence that he engaged in protected activity under 5 U.S.C. § 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D), and that the protected activity was a contributing factor in the personnel action under appeal. Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶¶ 12-13 (2015). If the appellant makes both of these showings, the burden of persuasion shifts to the agency to prove by clear and convincing evidence that it would have taken the same action in the absence of the appellant’s protected activity. Id., ¶ 14. ¶16In his prehearing submission, the appellant identified nine alleged protected activities between February 2017 and October 2017 that formed the basis of his 4 The appellant does not argue that his harmful error defense has any relation to his whistleblower claim. 9 whistleblower defense. IAF, Tab 16 at 11-18. In his initial decision, the administrative judge found that the appellant failed to prove that he engaged in protected activity that was a contributing factor in his removal. ID at 39-53. He addressed only two of the alleged activities specifically—a February 17, 2017 disclosure to the appellant’s first-level supervisor that the supervisor was committing misconduct in his dealings with a contractor, and a May 3, 2017 complaint to the agency’s Inspector General (IG) in which the appellant reported that his supervisor was retaliating against him for whistleblowing. ID at 51-53; IAF, Tab 16 at 11-14. Regarding the appellant’s February 17, 2017 disclosure, the administrative judge found that it lacked sufficient credibility to cause the appellant’s supervisor any concern, and that the appellant’s performance deficiencies “overshadow[ed] anything that might technically qualify as a disclosure.” ID at 52-53. Regarding the May 3, 2017 IG complaint, although the appellant informed his supervisor of the complaint the same day, the administrative judge found that the appellant’s supervisor did not understand during the relevant timeframe what the appellant’s reference to the IG complaint was about, the appellant’s vague statements to his supervisor lacked any information that might generate retaliatory animus, and in any event, the supervisor’s concerns about the appellant’s performance began in March—well before the appellant’s claimed protected activity in May. ID at 52. The administrative judge found that the remainder of the alleged protected activity was of no significance. Id. On petition for review, the appellant disputes the administrative judge’s findings with respect to three of his claimed protected activities—the May 3, 2017 IG complaint, the February 17, 2017 disclosure to the appellant’s supervisor, and a February 15, 2017 disclosure in which the appellant related to several individuals at a meeting similar concerns to those he raised in his February 17 disclosure.5 PFR File, Tab 5 at 28-34; IAF, Tab 16 at 11-14. 5 Because the appellant does not argue that the administrative judge erred in assessing the remainder of his claimed protected activities, we do not address them. See 5 C.F.R. § 1201.115 (“The Board normally will consider only issues raised in a timely filed 10 ¶17Regarding his February 2017 disclosures, the appellant testified that, during a February 15, 2017 meeting with several of his team members, the discussion turned to the agency’s relationship with a particular contractor, Sapient. IAF, Tab 16 at 11-12; Hearing Transcript, July 24, 2018 (HT2) at 459 (testimony of the appellant). The appellant learned at the meeting that his first -level supervisor was a former Sapient employee overseeing the Sapient contract, and he expressed his belief that this was “a violation of [Federal Acquisition Regulation (FAR)] 5000 series.” HT2 at 460 (testimony of the appellant). The appellant also stated that he learned that Sapient had direct access to his supervisor without any agency Contracting Officer’s Representative being present, and that this gave the appearance of favoritism and a conflict of interest and was a violation of the FAR 5000 series as well. Id. at 462-63 (testimony of the appellant). He also questioned why Sapient was the only contractor present in the Division of Business Operations. Id. at 459-60. According to the appellant, on February 17, 2017, he verbally expressed these same concerns directly to his supervisor. IAF, Tab 16 at 12; HT2 at 464 (testimony of the appellant). ¶18As an initial matter, it appears to us that the appellant’s reference to the “FAR 5000 series” pertains to the series of Department of Defense Instructions governing acquisitions in the Department of Defense and its components. See, e.g., Department of Defense Instruction No. 5000.02, Operation of the Defense Acquisition System (Aug. 31, 2018), available at https://www.esd.whs.mil/ Directives/issuances/dodi/ (last accessed November 29, 2023). Not only has the appellant failed to identify the particular provision of this complicated and voluminous set of issuances that he believes was violated, but he has also failed to explain why he believes that Department of Defense issuances apply to the Department of Health and Human Services, which is a separate cabinet level department. Nevertheless, a disclosure may be considered protected even in the absence of identification of a specific law or regulation when the employee’s petition or cross petition for review.”). 11 statements and the circumstances surrounding those statements clearly implicate an identifiable violation. Langer v. Department of the Treasury , 265 F.3d 1259, 1266 (Fed. Cir. 2001). This appears to have been the case here because the agency’s Division of Policy and Data Analysis (DPDA) investigated similar allegations made by two unidentified “BHW whistleblowers” and found that they had some merit, albeit with respect to laws and regulations other than the Department of Defense instructions that the appellant identified.6 IAF, Tab 17 at 17-26. In a December 12, 2017 investigative report, DPDA found that Sapient was working directly with the Division of Business Operations leadership (including the appellant’s first-level supervisor), which was improperly cutting the Contracting Officer’s Representatives out of the process. Id. at 18-19. DPDA also found that the appellant’s supervisor should have recused himself from overseeing the Sapient contract because there was an appearance of a conflict of interest with his former employer. Id. at 19-20. DPDA further found that Division of Business Operations leadership violated various contracting laws and regulations by circumventing the acquisition process and awarding work directly to Sapient outside the scope of the existing contract. Id. at 21-25. Without finding whether any abuse of authority or violation of law, rule, or regulation actually occurred, we find, based on this investigative report, that the appellant proved by preponderant evidence that he had a reasonable belief that they did. See Kinan v. Department of Defense , 87 M.S.P.R. 561, ¶ 14 (2001) (finding the appellant’s belief reasonable largely because it was corroborated by agency investigations); see also Murphy v. Department of the Treasury , 86 M.S.P.R. 131, ¶ 6 (2000) (defining an “abuse of authority” as 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 to other preferred persons). 6 The record does not appear to be conclusive about whether one of these “whistleblowers” was the appellant. 12 ¶19Nevertheless, we are unable to determine on the existing record whether the appellant’s February 2017 disclosures actually occurred, much less whether they were a contributing factor in his removal, because there is conflicting evidence on the issue. As set forth above, the appellant testified that, on February 15 and 17, 2017, he made the disclosures as described. Supra ¶ 16. His testimony, at least with regard to the February 15, 2017 disclosure, is corroborated by the testimony of an individual who was supposedly in attendance at that meeting. IAF, Tab 16 at 11; HT2 at 601-03 (testimony of Senior IT Specialist). However, the appellant’s supervisor denied that the appellant ever raised concerns to him about a conflict of interest prior to May 3, 2017. HT1 at 67-68 (testimony of the appellant’s supervisor). Furthermore, one of the individuals who was supposedly at the February 15, 2017 meeting denied that the appellant ever expressed any concerns about his supervisor’s conflict of interest with Sapient. IAF, Tab 16 at 11; HT1 at 295 (testimony of IT Specialist). The administrative judge did not make any definitive findings on whether the appellant actually made these two disclosures or whether his supervisor was aware of them.7 ID at 52. Because the resolution of this issue involves the weighing of conflicting testimony and the assessment of witness credibility, we find it appropriate to remand this appeal to the administrative judge to address the issue in the first instance. See Adair v. U.S. Postal Service , 66 M.S.P.R. 159, 166 (1995). ¶20Regarding the appellant’s claimed May 3, 2017 IG complaint, we find that this would constitute protected activity under 5 U.S.C. § 2302(b)(9)(C). 7 It is not clear whether the administrative judge found that the appellant’s claimed February 17, 2017 disclosure was not protected, or was not a contributing factor in his removal, or both. ID at 52-53. However, as explained above, the February 2017 disclosures would have been protected if the appellant made them as described. Supra ¶ 17. Furthermore, if his supervisor were aware of them, nexus would be established through the knowledge/timing test of 5 U.S.C. § 1221(e)(1) because the claimed disclosures occurred within 1 year of the appellant’s removal. See Inman v. Department of Veterans Affairs , 112 M.S.P.R. 280, ¶ 12 (2009). Under the facts of this appeal, the factors that the administrative judge considered in assessing the appellant’s case in chief are more properly directed to the agency’s affirmative defense. ID at 52-53; see generally Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999). 13 Furthermore, we disagree with the administrative judge that the appellant’s supervisor was unaware of this alleged activity because the record contains unrefuted documentary evidence that the appellant informed his supervisor of this activity by email the same day. ID at 52; IAF, Tab 9 at 55-56. In fact, the appellant’s supervisor testified that he read this email. HT1 at 55, 197 (testimony of the appellant’s first-level supervisor). The fact that he might not have fully understood the nature of the appellant’s complaint or received subsequent contact from the IG does not mean that he was unaware of the appellant’s claim that he had filed an IG complaint. ID at 52; HT1 at 66-67 (testimony of the appellant’s first-level supervisor); see Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 25 (2015) (requiring the appellant to show only that the fact of, not necessarily the content of, the protected activity was one of the factors that tended to affect the personnel action in any way). In the context of this appeal, these considerations go more properly to the agency’s affirmative defense than to the appellant’s case in chief. See generally Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999). However, as with the appellant’s February 2017 disclosures, there appears to be a dispute about whether the appellant actually filed an IG complaint as he claims. HT2 at 689 (agency’s closing statement). The administrative judge did not make any definitive finding on the matter, and as the agency pointed out, there is no documentary evidence, apart from the appellant’s email, that such a complaint was actually filed. ID at 51; HT2 at 689 (agency’s closing statement). Again, we find that the administrative judge is in the best position to determine the credibility of the appellant’s testimony on the matter. HT2 at 488 (testimony of the appellant). If the administrative judge finds that the appellant filed a complaint with the IG as alleged, the knowledge/timing test is satisfied with respect to the appellant’s removal 9 months later. See Powers v. Department of the Navy , 97 M.S.P.R. 554, ¶ 18 (2004). If the administrative judge finds that the appellant did not file an IG complaint as alleged, he should nevertheless consider whether the appellant’s 14 supervisor perceived him as a whistleblower by virtue of the May 3, 2017 email. See generally King v. Department of the Army , 116 M.S.P.R. 689, ¶ 8 (2011). ¶21According to the guidance set forth above, the administrative judge shall on remand adjudicate the appellant’s whistleblower claim with respect to the three claimed protected activities discussed above. IAF, Tab 16 at 11-14. If the administrative judge finds that the appellant engaged in protected activity that was a contributing factor in his removal, as established by the knowledge/timing test or otherwise, or that the appellant was a perceived whistleblower, he shall proceed to the issue of whether the agency has shown by clear and convincing evidence that it would have removed the appellant even in the absence of his protected activity. The administrative judge’s analysis in this regard shall be in accordance with the standard set forth in Whitmore v. Department of Labor , 680 F.3d 1353 (Fed. Cir. 2012). ¶22Finally, in light of the Federal Circuit’s decision in Santos, the administrative judge shall consider on remand whether the appellant’s pre-PIP performance affects the analysis of the appellant’s whistleblower affirmative defense. The administrative judge should provide the parties with the opportunity to submit evidence and argument on this issue and should address any such argument and evidence in the remand initial decision. See Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the administrative judge’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests). ORDER ¶23For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. 15 ¶24Notwithstanding the remand proceedings on the appellant’s whistleblowing affirmative defenses, we ORDER the agency to cancel the appellant’s removal and restore him retroactive to January 8, 2018. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶25We 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. ¶26We 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). ¶27No 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). ¶28For 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 16 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. 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.	Khov_Pheng_DC-0432-18-0300-I-1_Remand_Order.pdf	2023-11-30	PHENG KHOV v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-0432-18-0300-I-1, November 30, 2023	DC-0432-18-0300-I-1	NP
2,650	https://www.mspb.gov/decisions/nonprecedential/Aquino_Maria_AT-0752-18-0172-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MARIA AQUINO, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER AT-0752-18-0172-I-1 DATE: November 30, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Steve Newman , Esquire, New York, New York, for the appellant. Eric B. Fryda , Esquire, Dallas, Texas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed her 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 interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). We FORWARD the appellant’s claim of noncompliance with the settlement agreement to the regional office for docketing as a petition for enforcement. ¶2Effective November 27, 2017, the agency removed the appellant from her Supervisor, Customer Services position based on alleged misconduct. Initial Appeal File (IAF), Tab 4 at 82-85. She filed an appeal of her removal, and, while her appeal was pending, the parties entered into a settlement agreement that provided for the withdrawal of the appeal. IAF, Tabs 1, 20. The administrative judge accepted the agreement into the record for enforcement purposes and dismissed the appeal as settled upon finding that the parties understood the terms of the agreement, the agreement was lawful on its face, and the parties had agreed to make the agreement enforceable by the Board. IAF, Tab 21. ¶3The appellant timely petitions for review and contends that her attorney acted unethically and provided false information to the administrative judge. Petition for Review (PFR) File, Tab 1 at 4. She further raises arguments and presents evidence pertaining to the merits of her appeal, and she alleges that the agency has not complied with the settlement agreement. Id. at 4-5. The agency responds in opposition to the petition for review. PFR File, Tab 3. ¶4A settlement agreement is a contract between the parties, and its terms are to be interpreted as a question of contract law. Wofford v. Department of Justice , 115 M.S.P.R. 468, ¶ 6 (2010). An appellant may challenge the validity of a2 settlement agreement if she believes it was unlawful, involuntary, or the result of fraud or mutual mistake. Id. Even if invalidity was not apparent at the time of settlement, the agreement must be set aside if it is subsequently shown by new evidence that the agreement was tainted with invalidity by fraud or misrepresentation. Id. However, the party challenging the validity of a settlement agreement bears a heavy burden of showing a basis for invalidation. Id. To establish that a settlement was fraudulent as a result of coercion or duress, a party must prove that he involuntarily accepted the other party’s terms, that circumstances permitted no alternative, and that such circumstances were the result of the other party’s coercive acts. Potter v. Department of Veterans Affairs , 111 M.S.P.R. 374, ¶ 6 (2009). An appellant’s mere post-settlement remorse or change of heart cannot serve as a basis for setting aside a valid settlement agreement. Id. ¶5On review, the appellant has not presented any evidence or argument suggesting that the settlement agreement resulted from fraud, coercion, or mutual mistake. PFR File, Tab 1 at 4-5. She merely alleges that she has new evidence that she could present that would assist her in pursuing her appeal. Id. at 4. However, her arguments concerning the merits of her case are not relevant to the question of whether the settlement agreement is valid. Cf. Scott v. Department of Veterans Affairs , 89 M.S.P.R. 650, ¶ 9 n.4 (2001) (stating that the appellant failed to show how arguments concerning the merits of her case were relevant because her case was dismissed pursuant to a settlement agreement). To the extent the appellant claims that the agreement is invalid because of misconduct on the part of her representative, coercive acts by a party’s own representative do not provide a basis for overturning a settlement agreement that is otherwise fair. Bynum v. Department of Veterans Affairs , 77 M.S.P.R. 662, 665 (1998). Because the appellant has not met her heavy burden of alleging facts that, if proven, would compel the Board to set aside the settlement agreement, we discern no basis to set3 aside the settlement agreement or disturb the initial decision dismissing the appeal. ¶6The appellant has filed motions asking to submit additional evidence because she asserts that she discovered new information and new witnesses have come forward. PFR File, Tabs 5-6. We deny the appellant’s motions to submit additional evidence because she has not shown that the alleged new evidence is material to the dispositive issues in this case. See, e.g., Hooker v. Department of Veterans Affairs , 120 M.S.P.R. 629, ¶ 4, n.4 (2014). Further, we find that she has not established a basis for reopening or reinstating her appeal because she has not demonstrated unusual circumstances, such as misinformation or new and material evidence. See Walker v. U.S. Postal Service , 89 M.S.P.R. 210, ¶ 5 (2001). ¶7The appellant also asserts that the agency has not complied with the settlement agreement. PFR File, Tab 1 at 4. We forward this claim to the Atlanta Regional Office for docketing as a petition for enforcement. See Secrist v. U.S. Postal Service, 115 M.S.P.R. 199, ¶¶ 8-9 (2010); 5 C.F.R. § 1201.182(a). ¶8This is the final decision of the Merit Systems Protection Board regarding the validity of the settlement agreement. The initial decision remains the final decision of the Board regarding the appellant’s challenge to the removal action. 5 C.F.R. § 1201.113. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a 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 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit 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.3 The court of appeals must receive your petition for 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be 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	Aquino_Maria_AT-0752-18-0172-I-1_Final_Order.pdf	2023-11-30	MARIA AQUINO v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-18-0172-I-1, November 30, 2023	AT-0752-18-0172-I-1	NP
2,651	https://www.mspb.gov/decisions/nonprecedential/Williams_Joseph_Leroy_AT-0752-18-0400-I-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOSEPH LEROY WILLIAMS, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER AT-0752-18-0400-I-1 DATE: November 30, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kevin Curtis Crayon, Jr. , Esquire, Kennesaw, Georgia, for the appellant. Jonathan Lee Simpson , Esquire, Robins AFB, 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 dismissed his constructive removal appeal for lack of jurisdiction without a hearing. On petition for review, the appellant argues that he met his jurisdictional burden. He disputes the administrative judge’s finding that his discrimination claim was unrelated to jurisdiction, argues that the agency mishandled his equal employment opportunity (EEO) complaint, and argues that the administrative 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). judge should have “unmixed” the case in light of the jurisdictional dismissal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established 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). ¶2The appellant submits the following documents with his petition for review: a letter from his attorney asking the agency to issue a notice informing him that he has the right to appeal the agency’s dismissal of his EEO complaint to the Equal Employment Opportunity Commission (EEOC); the initial decision in this appeal; and two EEOC decisions issued in 1990. Petition for Review File, Tab 1 at 8-25. 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). In addition, 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).2 ¶3The documents that the appellant submits on review do not provide a basis for disturbing the initial decision. The initial decision is already part of the record and, therefore, not new. Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980). The appellant has not shown that the EEOC decisions he submits on review were unavailable before the record closed despite his due diligence. See Russo, 3 M.S.P.R. at 349. Moreover, none of the documents that the appellant submits on review is of sufficient weight to warrant an outcome different from that of the initial decision, as they have no bearing on whether the appellant’s resignation was voluntary. ¶4Nevertheless, we remind the agency that, in light of the Board’s dismissal of this appeal for lack of jurisdiction, this action is not a “mixed case,” and the agency is obligated under EEOC rules to reissue a notice to the appellant pursuant to 29 C.F.R. § 1614.108(f), giving him the right to elect between a hearing before an EEOC administrative judge or an immediate final decision on his discrimination claims. See 29 C.F.R. § 1614.302(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 5 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Williams_Joseph_Leroy_AT-0752-18-0400-I-1_Final Order.pdf	2023-11-30	JOSEPH LEROY WILLIAMS v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-18-0400-I-1, November 30, 2023	AT-0752-18-0400-I-1	NP
2,652	https://www.mspb.gov/decisions/nonprecedential/Artis_EllaMay_AT-0752-21-0374-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ELLAMAY ARTIS, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-0752-21-0374-I-1 DATE: November 30, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Nathaniel David Johnson , Esquire, Waldorf, Maryland, for the appellant. Kristin Langwell , Esquire, Hines, Illinois, 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 involuntary resignation appeal for lack of jurisdiction.2 On petition 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 The appellant’s petition for review was untimely filed by 3 days. Initial Appeal File, Tab 7, Initial Decision at 6; Petition for Review File, Tab 1. However, in light of our findings regarding the Board’s lack of jurisdiction over this appeal, we need not reach the question of whether the appellant had good cause for the untimely filing. See Rosell v. Department of Defense , 100 M.S.P.R. 594, ¶ 5 (2005) (stating that the for review, the appellant claims that the administrative judge did not consider the full record and continues to argue the merits of her appeal. Petition for Review (PFR) File, Tab 1 at 13-18. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to clarify the appropriate burden of proof placed on the agency in taking an action under 38 U.S.C. § 714, we AFFIRM the initial decision. ¶2The administrative judge correctly found that the appellant failed to nonfriovlously allege that her resignation was coerced or otherwise involuntary, and thus, it is outside of the Board’s jurisdiction. Initial Appeal File (IAF), Tab 7, Initial Decision (ID) at 5-6.3 The appellant’s arguments on review do not existence of Board jurisdiction is the threshold issue in adjudicating an appeal and ordinarily should be determined before reaching the issue of timeliness), aff’d, 191 F. App’x 954 (Fed. Cir 2006). 3 Below, the appellant argued, among other things, that she was subjected to harassment and discrimination on the basis of race. IAF, Tab 5 at 6, 8-10. The administrative judge appropriately considered this claim within the context of the voluntariness of the appellant’s resignation, but ultimately reasoned that “the appellant could have filed an [equal employment opportunity (EEO)] complaint to address her concerns and awaited the outcome.” ID at 5. This appears to be a misstatement of the record. In a declaration submitted below, the appellant stated that: (1) she filed an EEO complaint on July 17, 2019; (2) the initial investigator found in her favor; and (3) the agency assigned the EEO complaint to a second investigator thereafter, who, according to the2 provide a basis to disturb this finding.4 As a part of this finding, the administrative judge acknowledged the appellant’s challenges to her proposed removal but found that the agency “had a good faith basis upon which to propose the appellant’s removal,” especially under the lighter substantial evidence standard set forth at 38 U.S.C. § 714(c)(2)(A). ID at 6 (citing 38 U.S.C. § 714(c)(2)(A)).5 ¶3Although 38 U.S.C. § 714(d)(2)(A) provides that an administrative judge shall uphold an agency’s decision to, among other things, remove an employee if the decision is supported by substantial evidence, the U.S. Court of Appeals for the Federal Circuit clarified in Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290, 1296-1301 (2021) that the Department of Veterans Affairs may only appellant, “ultimately reached a result consistent with Orlando VA managers’ objectives.” IAF, Tab 5 at 9-10. Despite the misstatement of the record in the initial decision, neither the initial report nor subsequent report of the investigators’ findings are in the record, and we are, therefore, unable to consider their context in assessing the voluntariness of the appellant’s August 2020 resignation. As such, this adjudicatory error did not prejudice the appellant’s substantive rights and does not provide a basis to disturb the initial decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of the initial decision). 4 On review, the appellant continues to argue that her working conditions were so intolerable that she felt compelled to resign. PFR File, Tab 1 at 13-18. In addition to the circumstances discussed by the administrative judge, she also argues on review that, in April 2020, while reviewing her personnel file, she learned that a performance appraisal dated September 30, 2019, had been placed in her personnel file without notification by the rating official. Id. at 12. The performance appraisal rated her performance as “Not Fully Acceptable,” while her previous performance appraisals rated her as “Fully Successful.” Id. at 43-57, 108-13. This argument appears to be raised for the first time on review, and thus, was not considered by the administrative judge. IAF, Tabs 1, 5; PFR File, Tab 1. Generally, the Board will not consider an argument raised for the first time on review absent a showing of new and material evidence not previously available before the record closed despite the party’s due diligence. See Clay v. Department of the Army , 123 M.S.P.R. 245, ¶6 (2016). Here, the performance appraisal is dated November 5, 2019, and the appellant became aware of it on April 20, 2020. PFR File, Tab 1 at 12, 112. The record in this appeal closed on or around May 26, 2021. The appellant has not explained why she was unable to make this argument below. 5 The administrative judge’s citation to 38 U.S.C. § 714(c)(2)(A) appears to be a typo; he likely intended to reference section 714(d)(2)(A).3 take the action in the first instance when it is supported by preponderant evidence. Thus, as is relevant here, in order for the appellant to show that her resignation was involuntary, she needed to show that the agency knew that it could not prove the charges against her by preponderant evidence. See Rodriguez, 8 F.4th at 1296-1301; see also Barthel v. Department of the Army , 38 M.S.P.R. 245, 250-51 (1988) (explaining that, if an appellant can show that the agency knew that the reasons for a proposed action could not be substantiated, the proposed action would be purely coercive and would render the resulting retirement involuntary, his appeal within the Board’s jurisdiction, and entitle him to reinstatement). ¶4Here, the appellant’s arguments regarding the merits of the proposed removal, namely, that the proposal was “rife with factual errors” and that the agency could not prove that she engaged in misconduct that warranted removal, are vague and conclusory, and thus, do not even meet the nonfrivolous allegation standard. PFR File, Tab 1 at 11; see 5 C.F.R. § 1201.4(s) (stating that a nonfrivolous allegation must be, among other things, more than conclusory). Notably, she has not challenged any of the five charges brought by the agency or explained in detail why the agency’s action could not be substantiated.6 IAF, Tabs 1, 5; PFR File, Tab 1. Accordingly, we find that the appellant failed to nonfrivolously allege that the agency knew that its action was not supported by a preponderance of the evidence. ¶5Additionally, the appellant has submitted several documents with her petition for review, including a declaration, several performance appraisals, the notice of proposed removal, her response thereto, and the decision of removal, several Standard Form 50s, her resignation letter, her July 2019 equal 6 The record includes the appellant’s reply to the proposed removal, which she submitted during the agency’s proceedings prior to the instant appeal. IAF, Tab 6 at 58-69; PFR File, Tab 1 at 91-102. The appellant has not referenced this document, except to allege that the agency did not consider it, nor has she made any of the arguments contained therein in any of her pleadings before the Board. IAF, Tabs 1, 5; PFR File, Tab 1. 4 employment opportunity (EEO) complaint, and email correspondence regarding the reassignment of her EEO complaint. PFR File, Tab 1 at 35-124. To the extent that any of these documents were not included in the record below, the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record closed before the administrative judge despite the party’s due diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). ¶6Here, all of the documents submitted with the appellant’s petition for review were available—or contained information that was available—on or before the record closed below, and the appellant has not explained why she was unable to submit them then, nor has she explained how they are otherwise of sufficient weight to warrant an outcome different than that of the initial decision. PFR File, Tab 1. Thus, none of the documents provide a basis to grant the petition for review. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating that the Board generally will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). NOTICE OF APPEAL 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 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.5 regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The6 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file7 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your petition for 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.9	Artis_EllaMay_AT-0752-21-0374-I-1_Final_Order.pdf	2023-11-30	ELLAMAY ARTIS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-21-0374-I-1, November 30, 2023	AT-0752-21-0374-I-1	NP
2,653	https://www.mspb.gov/decisions/nonprecedential/Brimer_David_AT-3330-21-0119-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DAVID SCOTT BRIMER, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER AT-3330-21-0119-I-1 DATE: November 30, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 David Scott Brimer , Milton, Florida, pro se. Carol M. Lynch and Daniel J. Watson , Esquire, Pensacola, Florida, 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 corrective action in the appellant’s appeal under the Veterans Employment Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to find jurisdiction over the appellant’s right-to-compete claim pursuant to 5 U.S.C. § 3330a(a)(1)(A)-(B) and to clarify the reason as to why the appellant is not entitled to corrective action under VEOA, we AFFIRM the initial decision. BACKGROUND ¶2This appeal concerns the appellant’s nonselection for a merit promotion to a GS-14 Assistant Human Resources Officer position with the agency’s Naval Education and Training Command. The following facts are undisputed. The appellant is a preference-eligible disabled veteran. Initial Appeal File (IAF), Tab 7 at 6, Tab 10 at 7, 10. At the time of his application for promotion, the appellant was employed by the agency’s Bureau of Medicine and Surgery as a GS-13 Supervisory Human Resources Specialist. IAF, Tab 7 at 4. The vacancy announcement, advertised under Job Announcement ST-10905451-20-DM, was a merit promotion announcement open to current or former Federal employees, and the agency accepted applications from outside its workforce, including VEOA eligibles, and Military Spouse Preference (MSP) eligibles. IAF, Tab 6 at 9-10. ¶3The appellant applied for the position; however, his application was not referred to the hiring official because the agency mistakenly believed that he did2 not submit documents reflecting that he met the time-in-grade requirement for the position. Id. at 5, 38. The appellant filed a VEOA complaint with the Department of Labor (DOL), Veterans’ Employment and Training Service (VETS), on October 20, 2020. IAF, Tab 10 at 12. After receiving notification of the appellant’s complaint, the agency reviewed the appellant’s application and informed VETS that the appellant was not among the most highly qualified candidates for the position. IAF, Tab 6 at 24. On December 2, 2020, VETS issued a letter closing the file on the appellant’s VEOA complaint and notified him of his appeal rights. IAF, Tab 1 at 7-8. ¶4The appellant timely filed a Board appeal and requested a hearing. IAF, Tab 1 at 2. In his appeal, he alleged that the agency obstructed his right to compete for employment and violated his veterans’ preference rights. Id. at 5. The administrative judge issued a jurisdictional order, which notified the appellant that the Board may not have jurisdiction over his appeal, explained the jurisdictional requirements under VEOA, and ordered the appellant to file evidence and argument establishing Board jurisdiction. IAF, Tab 9. Both parties filed responses. IAF, Tabs 10-11. The administrative judge issued a decision on the merits, without holding a hearing, denying the appellant’s request for corrective action under VEOA and finding the Board otherwise lacks jurisdiction over the appellant’s allegation of a prohibited personnel practice pursuant to 5 U.S.C. § 2302(b)(4). IAF, Tab 12, Initial Decision (ID) at 5-7. ¶5The appellant has filed a petition for review, wherein he asserts that the administrative judge erred by adjudicating the VEOA claim on the merits after only requesting that the appellant submit evidence and argument as to jurisdiction over his claim. Petition for Review (PFR) File, Tab 1 at 5-8. He also submits additional argument regarding the merits of the nonselection. Id. at 8-15. The agency has filed a response. PFR File, Tab 3.3 DISCUSSION OF ARGUMENTS ON REVIEW The Board has jurisdiction over the appellant’s right-to-compete claim. ¶6Under VEOA, preference eligibles and certain veterans who unsuccessfully apply for a position being filled by a Federal agency for which the agency accepted applications from individuals outside of its own workforce under merit promotion procedures and who allege that they have been denied the opportunity to compete afforded to them under 5 U.S.C. § 3304(f)(1) may seek administrative redress for a violation of their rights. 5 U.S.C. § 3330a(a)(1)(A)-(B); Walker v. Department of the Army , 104 M.S.P.R. 96, ¶¶ 9-17 (2006). These are commonly referred to as right-to-compete claims. Prior to the passage of the Veterans Benefits Improvement Act of 2004, Pub. L. No. 108-454, § 804, 118 Stat. 3598, 3626 (2004), preference-eligible applicants were permitted to file a right-to-compete claim pursuant to statutory provisions now codified at 5 U.S.C. § 3330a(a)(1)(A). Walker, 104 M.S.P.R. 96, ¶¶ 16-17 (explaining that 5 U.S.C. § 3304(f)(1) is a statute relating to veterans’ preference for purposes of 5 U.S.C. § 3330a(a)(1)). The Veterans Benefits Improvement Act of 2004 extended that right to include covered veterans, who may file a claim pursuant to 5 U.S.C. § 3330a(a)(1)(B). Montgomery v. Department of Health and Human Services , 123 M.S.P.R. 216, ¶ 4 n.1 (2016). ¶7To establish Board jurisdiction over a claim that he was denied the opportunity to compete for a vacant position under 5 U.S.C. § 3330a(a)(1) (A)-(B), an appellant must demonstrate that he exhausted his administrative remedy with DOL and make nonfrivolous allegations of the following: that he is a preference eligible or veteran who was separated from the armed forces under honorable conditions after 3 years or more of active service; that the actions at issue took place on or after the October 31, 1998 enactment date of VEOA for preference eligibles or the December 10, 2004 enactment date of the Veterans Benefits Improvement Act of 2004 for veterans covered by 5 U.S.C. § 3304(f)(1); and that the agency denied him the opportunity to compete under merit promotion4 procedures for a vacant position for which the agency accepted applications from individuals outside its own workforce. See Montgomery , 123 M.S.P.R. 216, ¶¶ 4- 5; Becker v. Department of Veterans Affairs , 115 M.S.P.R. 409, ¶ 5 (2010). The administrative judge found that the appellant did not establish jurisdiction over his claim pursuant to 5 U.S.C. § 3330a(a)(1)(A). ID at 5-6. He implicitly found that the appellant established jurisdiction over his claim pursuant to 5 U.S.C. § 3330a(a)(1)(B). ID at 6-7. ¶8The appellant has made a nonfrivolous allegation that he is both preference eligible and a veteran who was separated from the armed forces under honorable conditions after 3 years of active service. IAF, Tab 10 at 4, 7-10. He has also presented evidence that he has exhausted his remedy before DOL. IAF, Tab 1 at 7-8. It is undisputed that the agency filled a vacant position using merit promotion procedures, accepted applicants from outside its workforce, and that the selection at issue took place in 2020, after the enactment of VEOA and the Veterans Benefits Improvement Act of 2004. IAF, Tab 6 at 9-17. Accordingly, we find that the Board has jurisdiction over the appellant’s right-to-compete claim under 5 U.S.C. § 3330a(a)(1)(A) and (a)(1)(B). See Montgomery , 123 M.S.P.R. 216, ¶¶ 4-5 & nn.1-2. We agree with the administrative judge’s conclusion that the appellant was not entitled to any corrective action under VEOA; however, we modify the initial decision as to the legal basis for this determination. ¶9When, as here, the agency posts a merit-promotion vacancy and opens the application process to individuals outside of its workforce, preference-eligible applicants and certain veterans “may not be denied the opportunity to compete” for such vacancies. Kerner v. Department of the Interior , 778 F.3d 1336, 1337 (Fed. Cir. 2015) (quoting 5 U.S.C. § 3304(f)(1)). The administrative judge concluded that the agency did not violate the appellant’s right to compete because “the undisputed record supports a finding that the appellant was ultimately granted the right to compete for this vacancy after initial missteps in handling his5 application.” ID at 6. Although we disagree with the administrative judge’s reasoning for denying corrective action, for the following reasons, we find that the agency must prevail as a matter of law. ¶10In Oram v. Department of the Navy , 2022 MSPB 30, ¶ 17, the Board found that, as a matter of law, current Federal employees are not entitled to corrective action based on a claim of denial of an opportunity to compete under 5 U.S.C. § 3304(f)(1). In reaching this decision, the Board relied on the U.S. Court of Appeals for the Federal Circuit’s decision in Kerner, 778 F.3d 1336. In Kerner, after reviewing the text and legislative history of VEOA and its precursor, the Veterans’ Preference Act, the Federal Circuit reasoned that nothing in the statutory language, the legislative history, or case law supported a presumption that the “opportunity to compete” provision in 5 U.S.C. § 3304(f) applies in instances in which an applicant is already employed in the Federal civil service. Kerner, 778 F.3d at 1338. The Federal Circuit reasoned that the intent of the subject provision was to assist veterans in obtaining an initial appointment to the Federal service, not subsequent promotions or other intra -agency movement. Id. The court concluded that, because veterans currently employed in a competitive service position are already “eligible to apply” to merit promotion vacancies, such applicants could not have been the intended beneficiaries of section 3304(f). Id. at 1338-39. Here, because it is undisputed that the appellant was already a Federal employee, 5 U.S.C. § 3304(f) was inapplicable to him regardless of whether the agency forwarded his application to the selecting official. See Oram, 2022 MSPB 30, ¶¶ 13, 17 (citing Kerner, 778 F.3d at 1338-39). For these reasons, we need not reach the appellant’s arguments on review regarding the agency’s belated review of his application, and we affirm the denial of corrective action on the merits. ¶11The appellant has argued on review that he was prejudiced by the administrative judge’s decision on the merits after only being instructed to submit evidence and argument as to jurisdiction over his claim. PFR File, Tab 1 at 6-8.6 VEOA complainants do not have an unconditional right to a hearing and the Board may decide a VEOA appeal on the merits, without holding a hearing, when there are no genuine disputes of material fact and one party must prevail as a matter of law. Davis v. Department of Defense , 105 M.S.P.R. 604, ¶ 12 (2007). Thus, any error was not prejudicial because there is no dispute that the appellant was a Federal employee at the time of the nonselection, and, therefore, the agency must prevail as a matter of law. ¶12Based on the foregoing, we affirm as modified the initial decision, still denying the appellant’s request for corrective action under VEOA. We also affirm the administrative judge’s finding that the Board otherwise lacks jurisdiction over the appellant’s prohibited personnel practices claim pursuant to 5 U.S.C. § 2302(b)(4). NOTICE OF APPEAL RIGHTS2 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.7 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you8 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 9 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 10 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.11	Brimer_David_AT-3330-21-0119-I-1_Final_Order.pdf	2023-11-30	DAVID SCOTT BRIMER v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-3330-21-0119-I-1, November 30, 2023	AT-3330-21-0119-I-1	NP
2,654	https://www.mspb.gov/decisions/nonprecedential/Garcia_Angela_Ann_AT-0752-18-0449-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ANGELA ANN GARCIA, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER AT-0752-18-0449-I-1 DATE: November 30, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Angela Ann Garcia , Davenport, Florida, pro se. MAJ Jessica Bossi and Toby Vernon Davis , Esquire, Redstone Arsenal, Alabama, for the agency. Steven L. Meints , Orlando, Florida, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which sustained her indefinite suspension. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain3 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 4 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.6	Garcia_Angela_Ann_AT-0752-18-0449-I-1_Final_Order.pdf	2023-11-30	ANGELA ANN GARCIA v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-18-0449-I-1, November 30, 2023	AT-0752-18-0449-I-1	NP
2,655	https://www.mspb.gov/decisions/nonprecedential/Evans_Jr_Al_A_DA-1221-22-0097-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD AL J. EVANS, JR., Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DA-1221-22-0097-W-1 DATE: November 29, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Al J. Evans, Jr. , Frisco, Texas, pro se. Teena Mathew Makil , Esquire, Irving, Texas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which denied corrective action in his individual right of action (IRA) appeal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2On review, the appellant reasserts many of the same arguments that he made before the administrative judge. Petition for Review (PFR) File, Tab 1 at 5-12. He also asserts the following: (1) the Board should consider new and material evidence submitted with his petition for review; (2) the administrative judge failed to consider his claim that his supervisor threatened to remove him in retaliation for engaging in protected activity; (3) the administrative judge erred in requiring the appellant to prove that the agency officials responsible for taking the personnel actions had knowledge of his protected activity; (4) the administrative judge failed to consider the appellant’s claims under 5 U.S.C. § 2302(b)(4) and (b)(8); and (5) the administrative judge erred in denying the appellant’s request for subpoenas and his motion to compel the agency to provide further discovery responses. Id. ¶3First, we consider the document submitted with the appellant’s petition for review. PFR File, Tab 2 at 4-11. The document is dated June 4, 2021, more than 6 months before the appellant filed his initial appeal. Initial Appeal File (IAF), Tab 1; PFR File, Tab 2 at 4. The appellant has not explained why the information was not available to him prior to the close of the record despite his due diligence, and we therefore find that it does not constitute new and material evidence. PFR2 File, Tab 1 at 6; see Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980) (stating that the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record was closed before the administrative judge despite the party’s due diligence); 5 C.F.R. § 1201.115(d). ¶4Second, we agree with the administrative judge’s finding that the appellant did not exhaust with the Office of Special Counsel (OSC) his claim that his supervisor threatened to remove him in retaliation for engaging in protected activity, and the Board therefore lacks jurisdiction to address it. IAF, Tab 10 at 4, Tab 14 at 1-2; see Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011) (stating that, in an IRA appeal, the Board may only consider personnel actions that the appellant raised before OSC). The appellant has not shown that he provided OSC with sufficient basis to pursue an investigation into such an issue. See Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11. ¶5Third, we consider the appellant’s argument that the administrative judge applied an incorrect legal standard, requiring him to prove that the management officials he accused of retaliation had knowledge of his protected activity. PFR File, Tab 1 at 6-7. The appellant has misconstrued the administrative judge’s findings. Although she considered that the appellant did not prove that the responsible management officials had knowledge of his protected activity as one factor, she concluded that, based on the entire record, the appellant failed to show by circumstantial evidence that his protected activity was a contributing factor to the personnel actions. IAF, Tab 26, Initial Decision (ID) at 8-16. She considered that the agency’s explanations for taking the personnel actions were strong and that the officials did not have motive to retaliate against the appellant. ID at 9-16; see Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012) (explaining that if the appellant fails to meet the knowledge/timing test, the administrative judge shall consider other evidence such as the strength or3 weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing was personally directed at the proposing or deciding officials, and whether these individuals had a desire or motive to retaliate against the appellant). We find that the administrative judge applied the correct legal standard, and we agree with her conclusion that the appellant failed to prove that his protected activity was a contributing factor to the personnel actions. ¶6Fourth, the appellant argues that the law that “should apply” to his appeal is 5 U.S.C. § 2302(b)(4) and (b)(8). PFR File, Tab 1 at 6-7. To the extent the appellant is asking the Board to review a claim that the agency violated 5 U.S.C. § 2302(b)(4) by obstructing his right to compete for employment in March 2018, before he engaged in protected activity, the Board lacks jurisdiction to hear such a claim. See Schmidt v. Department of the Interior , 153 F.3d 1348, 1356 (Fed. Cir. 1998) (“Section 2302(b)(4) cannot establish Board jurisdiction because § 2302(b) is not an independent source of appellate jurisdiction and does not by itself authorize an appeal to the Board.”). To the extent the appellant is arguing that his complaints to the Office of Inspector General (OIG) are protected disclosures under § 2302(b)(8) because he was disclosing a violation of § 2302(b)(4), we find that it is unnecessary to resolve whether complaints, which the administrative judge found were protected under § 2302(b)(9), are also covered by § 2302(b)(8) because, in any event, we agree with the administrative judge’s finding that the appellant failed to prove that his OIG complaints were a contributing factor to the personnel actions. ID at 8-16. ¶7Finally, we consider the appellant’s argument that the administrative judge erred in denying his motion to compel and request for subpoenas. PFR File, Tab 1 at 7. The 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). The appellant has not established that the administrative judge abused her discretion in denying the appellant’s motion to compel and request for4 subpoenas, which were not timely filed in accordance with 5 C.F.R. § 1201.73(d)(3). IAF, Tab 20; see Pumphrey v. Department of Defense , 122 M.S.P.R. 186, ¶ 15 (2015) (finding the administrative judge did not abuse her discretion in denying an untimely motion to compel). Insofar as the appellant alleges that the agency failed to turn over relevant documents in addition to the categories of information identified in his motion to compel, i.e., attendance at the Integrity Briefing meeting, PFR File, Tab 1 at 10, we find that he has failed to preserve that objection for review, IAF, Tab 16 at 4-14; see Szejner v. Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5 (2005) (stating that an appellant is precluded from raising a discovery issue for the first time on review), aff’d, 167 F. App’x 217 (Fed. Cir. 2006). Based on the foregoing, we deny the petition for review and affirm the initial decision. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 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 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action 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.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.9	Evans_Jr_Al_A_DA-1221-22-0097-W-1_Final_Order.pdf	2023-11-29	null	DA-1221-22-0097-W-1	NP
2,656	https://www.mspb.gov/decisions/nonprecedential/Gilliard_Adrian_A_DA-0714-18-0143-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ADRIAN C. GILLIARD, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER DA-0714-18-0143-I-1 DATE: November 29, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Adrian C. Gilliard , Groesbeck, Texas, pro se. Sean A. Safdi , Esquire, Denver, Colorado, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his 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 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). BACKGROUND ¶2The agency removed the appellant from his GS-5 Contact Representative position for inappropriate conduct and failure to follow leave requesting procedures. Initial Appeal File (IAF), Tab 8 at 11-14. He appealed his removal to the Board alleging procedural error and discrimination based on disability. IAF, Tab 1. While the appeal was pending, the parties entered into a settlement agreement, in which the appellant agreed, among other things, to withdraw his appeal and to provide the agency medical documentation regarding his post-traumatic stress disorder and any other qualifying disability within 45 days of signing the agreement. IAF, Tab 14 at 6. In exchange, the agency agreed to change the reason for his removal from “removal for conduct” to “removal for medical inability to perform” and to not controvert his claim for disability retirement with the Office of Personnel Management. Id. at 6-7. The appellant further agreed that, if he failed to submit the required medical documentation within 45 days, he waived the right to challenge his removal and “removal for conduct” would remain the reason for his removal. Id. at 6. The settlement agreement provided that it constituted the “entire agreement” and that it could be2 “modified only by a written agreement signed by Appellant . . . and the authorized representative of Agency.” Id. at 7. It further provided the following: Solely as to any claim of discrimination based on age, 40 years or older , Agency and Appellant agree that this Agreement complies with the Requirements of the Age Discrimination in Employment Act and the Older Workers Benefit Protection Act. In particular, Appellant is hereby advised of the following . . . he has seven (7) days from the date that all Parties have signed this Agreement to revoke this Agreement. Id. at 8-9 (emphasis in original). The agency official signed the agreement on March 2, 2018, and the appellant signed it on March 5, 2018. Id. at 9. ¶3In an initial decision dated March 5, 2018, the administrative judge found that the agreement was lawful on its face and that the parties understood its terms and freely entered into it. IAF, Tab 15, Initial Decision (ID) at 1. Pursuant to the terms of the agreement, the administrative judge entered it into the record for purposes of enforcement by the Board. Id.; IAF, Tab 14 at 8. She then dismissed the appeal as settled. ID at 2. ¶4On April 4, 2018, the appellant filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. He states that he revoked the settlement agreement on March 9, 2018, and provided a copy of an unsigned, handwritten note dated March 7, 2018, stating that he wished to revoke the settlement agreement. Id. at 2, 5. In addition, he appears to argue that the settlement agreement was invalid and should be set aside. Id. at 2-4. In response, the agency argues that the revocation clause in the settlement agreement applied only to claims of age discrimination, which are not raised in this appeal, and that the appellant has failed to provide any basis for setting aside the settlement agreement. PFR File, Tab 3. ANALYSIS ¶5A settlement agreement is a contract, the interpretation of which is a matter of law. Jackson v. Department of the Army , 123 M.S.P.R. 178, ¶ 6 (2016). In3 construing a settlement agreement, the Board “assign[s] to words their ordinary and commonly accepted meaning unless it is shown that the parties intended otherwise.” Id. (quoting Perry v. Department of the Army , 992 F.2d 1575, 1579 (Fed. Cir. 1993)). Here, as noted above, the settlement provided that the appellant could revoke the agreement within 7 days “ [s]olely as to any claim of discrimination based on age, 40 years or older .” IAF, Tab 14 at 8-9 (emphasis in original). Thus, pursuant to the plain language of the agreement, the appellant could revoke his agreement to waive his age discrimination claims within 7 days. Id. However, the appellant has not raised any age discrimination claim. The agreement does not contain any provision permitting the appellant to revoke the settlement agreement with respect to his other, non-age discrimination claims, IAF, Tab 14, and the settlement agreement therefore remains in effect despite his attempt to revoke it.2 ¶6A party may challenge the validity of a settlement agreement if he believes that it is unlawful, involuntary, or the result of fraud or mutual mistake. Hinton v. Department of Veterans Affairs , 119 M.S.P.R. 129, ¶ 4 (2013). To establish that a settlement was fraudulent as a result of coercion or duress, a party must prove that he involuntarily accepted the other party’s terms, that circumstances permitted no other alternative, and that such circumstances were the result of the other party’s coercive acts. Id. To establish that a settlement agreement resulted from fraud based on misinformation from the agency, the appellant must show that the agency knowingly concealed a material fact or intentionally misled him. See Harris v. Department of Veterans Affairs , 142 F.3d 1463, 1468 (Fed. Cir. 1998). The party challenging the validity of the settlement agreement bears a heavy burden. Hinton, 119 M.S.P.R. 129, ¶ 4 . An appellant’s 2 Even if the appellant could revoke the entire settlement agreement, he has not provided any evidence showing that he complied with the revocation provision by sending a written request to the Office of Chief Counsel—Continental District West at the address provided. PFR File, Tab 1; IAF, Tab 14 at 9. 4 mere post-settlement remorse or change of heart cannot serve as a basis for setting aside a valid settlement agreement. Id. ¶7Here, the appellant alleges that the agency used “high pressure ta[c]tic[s]” and made “erroneous statements” to coerce him to sign the agreement. PFR File, Tab 1 at 2. He also argues that the agency “reworded” part of the settlement agreement at an unspecified time. Id. He further argues that the agency provided him misinformation regarding the handling of his equal employment opportunity complaint. Id. at 2-3. These vague and unsupported allegations, however, are insufficient to meet the appellant’s heavy burden of showing that the settlement agreement is invalid. See Hinton, 119 M.S.P.R. 129, ¶ 4. ¶8The appellant also argues that 45 days was not enough time to obtain the medical documentation, that the agency did not inform him where to send his medical documentation, and that the agency did not reasonably accommodate him. PFR File, Tab 1 at 3. Even if true, however, these arguments provide no basis to set aside the settlement agreement because they do not establish, or even suggest, that the agreement was unlawful, involuntary, or the result of fraud or mutual mistake. See Hinton, 119 M.S.P.R. 129, ¶ 4. ¶9In light of the foregoing, we find that the appellant has not shown any basis to set aside the settlement agreement. Thus, the administrative judge properly dismissed the appeal as settled. 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 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 appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation6 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file7 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be 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	Gilliard_Adrian_A_DA-0714-18-0143-I-1_Final_Order.pdf	2023-11-29	ADRIAN C. GILLIARD v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0714-18-0143-I-1, November 29, 2023	DA-0714-18-0143-I-1	NP
2,657	https://www.mspb.gov/decisions/nonprecedential/Grapperhaus_Duane_J_CH-0831-19-0038-I-1_Final_Order.pdf	ERROR: HTTPSConnectionPool(host='www.mspb.gov', port=443): Read timed out. (read timeout=30)	Grapperhaus_Duane_J_CH-0831-19-0038-I-1_Final_Order.pdf	Date not found	null	null	NP
2,658	https://www.mspb.gov/decisions/nonprecedential/Wang_Wei_DC-315H-20-0753-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WEI WANG, Appellant, v. DEPARTMENT OF LABOR, Agency.DOCKET NUMBER DC-315H-20-0753-I-1 DATE: November 28, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Wei Wang , Arlington, Virginia, pro se. Matthew Babington , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed her probationary termination appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established 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 ¶2Effective January 5, 2020, the agency appointed the appellant to the career-conditional position of Economist in the competitive service, subject to a 1-year probationary period. Petition for Review (PFR) File, Tab 1 at 6. On May 5, 2020, the agency issued to the appellant a notice of proposed termination, having determined that her continued employment posed an “unacceptable risk for both the security and confidentiality” of the agency’s data and reputation. Id. at 6-7. The proposal notice stated that the agency had been informed that the appellant was under criminal investigation by the Federal Bureau of Investigation (FBI) concerning an alleged incident at her previous employer. Id. at 6. The notice informed the appellant that she could reply to the proposed action in writing. Id. The appellant confirmed her receipt of the proposal notice and submitted three written replies via electronic mail. Initial Appeal File (IAF), Tab 1 at 8. Less than 1 year after the appellant’s initial appointment, effective May 23, 2020, the agency terminated her appointment. Id. The decision memorandum stated that, despite the appellant’s written explanations regarding the incident with the appellant’s private sector employer, the agency had lost trust2 in the appellant’s “ability to adhere to the security and confidentiality policies for [agency] data.” Id. ¶3The appellant filed an appeal and requested a hearing. Id. at 2. She stated that she had 4 months of Federal service and checked the box indicating that she was challenging her “[t]ermination during probationary or initial service period.” Id. at 1, 4. The appellant asserted that the “termination decision was made based on [her] mistake [during] previous work” and that, since she started working for the agency, she had strictly complied with the policies without a “single mistake ever.” Id. at 6. The appellant argued that the agency should provide her with the opportunity to continue her employment. Id. The only documentary evidence that the appellant submitted with her appeal was the termination decision memorandum. Id. at 8-10. ¶4The administrative judge issued an order to show cause informing the appellant that the Board may not have jurisdiction over her appeal and apprised her of the regulatory right to appeal for probationers in the competitive service and the requirements for meeting the definition of an “employee” for purposes of 5 U.S.C. chapter 75 appeal rights. IAF, Tab 3 at 2-5. In particular, the administrative judge noted that it appeared from the initial appeal that the appellant may be claiming that she was terminated based on pre-appointment reasons, and the administrative judge informed the appellant of the procedural requirements of 5 C.F.R. § 315.805. Id. at 3. The administrative judge also informed the appellant that she had the burden of proof on the issue of timeliness, and it appeared that her appeal was untimely filed by 27 days. Id. at 5-6. She ordered the appellant to file evidence and argument that her appeal was timely filed or that good cause existed for the delay. Id. at 6-8. Finally, the administrative judge explicitly informed the appellant that if she did not timely respond to the order to show cause, the appeal would be dismissed for lack of jurisdiction or untimeliness based on the existing record. Id. at 8. The appellant3 did not file a response to the order to show cause. The agency did not file any pleading during the pendency of the appeal. ¶5Without holding the requested hearing, the administrative judge issued an initial decision dismissing the appeal because the appellant failed to make a nonfrivolous allegation that the Board had jurisdiction over her appeal. IAF, Tab 5, Initial Decision (ID) at 1 n.1. The administrative judge found that the appellant failed to establish that she was an “employee” with chapter 75 appeal rights because she provided no evidence or argument that she had completed her probationary period or had 1 year of current continuous service at the time of her termination. ID at 5. The administrative judge found that the record suggested that the appellant was terminated during her probationary period for a pre-appointment reason, but that the appellant had not made a nonfrivolous allegation that the agency had failed to follow the procedural requirements set forth at 5 C.F.R. § 315.805 and in fact the information that she submitted suggested that the agency provided the requisite notice, opportunity to respond, and decision. ID at 5-6. Finally, the administrative judge found that the appellant had not alleged that she was terminated due to marital status or partisan political reasons. ID at 6. The administrative judge did not make any findings on the issue of the timeliness of the initial appeal. ¶6The appellant has filed a petition for review, primarily addressing her delay in filing the initial appeal and failure to respond to the order to show cause. PFR File, Tab 1 at 4-5. The agency has filed a response arguing that the appellant has provided no basis for granting her petition for review, has not addressed the administrative judge’s jurisdictional findings, and has not provided good cause for her failure to respond to the order to show cause. PFR File, Tab 3 at 5-8. The appellant has filed a response arguing for the first time on review that the agency’s “procedural defects” prevented her from “understanding her right to appeal on the appropriate grounds and pursuing her rights in a timely manner.” PFR File, Tab 4 at 4. She alleges that the agency failed to provide to her4 information regarding an appeal regarding conditions arising prior to her appointment and that the agency had not responded to her inquiries after her termination “asking about the feasibility of appeal and MSPB jurisdiction of her specific case.” Id. The appellant repeats her contentions that she failed to respond to the administrative judge’s order due to technological difficulties and confusion regarding the Board’s e-Appeal system.2 Id. at 5. DISCUSSION OF ARGUMENTS ON REVIEW ¶7The 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 has the burden of establishing that the Board has jurisdiction over her appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A). To establish Board jurisdiction under 5 U.S.C. chapter 75, an individual must, among other things, show that she satisfied one of the definitions of “employee” in 5 U.S.C. § 7511(a)(1). Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 5 (2013). For an individual in the competitive service, such as the appellant, this means that she either must not be serving a probationary or trial period under an initial appointment, or have completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less. 5 U.S.C. § 7511(a)(1)(A)(i), (ii). A probationary 2 Following the close of the record on review, the appellant filed a request to submit an additional pleading. PFR File, Tab 6. The Board’s regulations provide that the pleadings allowed on review include a petition for review, a cross petition for review, a response to a petition for review, a response to a cross petition for review, and a reply to a response to a petition for review. 5 C.F.R. § 1201.114(a). In order to obtain leave to submit a pleading other than the ones described in 5 C.F.R § 1201.114(a), a party must file a motion describing the nature of and need for the pleading. 5 C.F.R. § 1201.114(a)(5). In addition, if a party wishes to submit additional evidence and argument after the close of the record, the party must show that the evidence and argument was not readily available before the record closed. 5 C.F.R. § 1201.114(k). Here, the appellant states in general terms that an additional pleading “will provide more to support [her] case,” PFR File, Tab 6 at 3, but she has not explained what evidence and argument that pleading might contain, or why that evidence and argument was not readily available before the close of the record. Accordingly, we deny her request. 5 employee in the competitive service has a limited regulatory right of appeal. See 5 C.F.R. § 315.806. If such a person is terminated for reasons that arose after her appointment, she may appeal to the Board only if she raises a nonfrivolous claim that her termination was based on partisan political reasons or marital status. 5 C.F.R. § 315.806(b). ¶8Under 5 C.F.R. § 315.806(c), a probationary employee whose termination was based in whole or in part on conditions arising before her appointment may appeal her termination to the Board on the ground that it was not effected in accordance with the procedural requirements set forth in 5 C.F.R. § 315.805. LeMaster v. Department of Veterans Affairs , 123 M.S.P.R. 453, ¶ 7 (2016). Those procedural requirements include advance notice of the termination, an opportunity to respond, and consideration of the response. Id., ¶ 13; 5 C.F.R. § 315.805(a)-(c). In a probationary termination appeal arising under section 315.806(c), the only issue before the Board is whether the agency’s failure to follow the procedures set forth in section 315.805 was harmful error, and the Board does not address the merits of the agency’s termination. LeMaster, 123 M.S.P.R. 453, ¶ 7. ¶9An appellant is entitled to a jurisdictional hearing if she presents nonfrivolous allegations3 of Board jurisdiction. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994). In determining whether the appellant has made a nonfrivolous allegation of jurisdiction entitling her to a hearing, the administrative judge may consider the agency’s documentary submissions; however, to the extent that the agency’s evidence constitutes mere factual contradiction of the appellant’s otherwise adequate prima facie showing of jurisdiction, the administrative judge may not weigh evidence and resolve conflicting assertions of the parties, and the agency’s evidence may not be dispositive. Id. 3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s).6 ¶10On petition for review, the appellant does not challenge the administrative judge’s finding that she failed to make a nonfrivolous allegation that she was an “employee” in the competitive service for purposes of 5 U.S.C. chapter 75 appeal rights. ID at 5; PFR File, Tab 1 at 4-5, Tab 4 at 4-6. Rather, she seemingly raises an allegation for the first time on review that the agency failed to follow the procedural requirements set forth in 5 C.F.R. § 315.805 regarding her termination during a probationary period due to conditions arising before her appointment. PFR File, Tab 4 at 4. She also submits new evidence on review, the notice of proposed termination. PFR File, Tab 1 at 6-7. ¶11Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the close of the record below despite the party’s due diligence. Pirkkala v. Department of Justice , 123 M.S.P.R. 288, ¶ 5 (2016); see Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board generally will not consider a new argument raised for the first time on review absent a showing that it is based on new and material evidence). However, we have considered the appellant’s new evidence and argument to the extent it concerns the issue of the Board’s jurisdiction because the Board’s jurisdiction can be raised at any time including on review. See Pirkkala, 123 M.S.P.R. 288, ¶ 5 (considering evidence submitted for the first time on review because it was relevant to the Board’s jurisdiction). ¶12Even considering the appellant’s evidence providing additional information regarding her appointment and termination, we find no basis to find that she was an “employee” for purposes of 5 U.S.C. chapter 75 appeal rights. The appellant has not alleged that she was not serving a probationary period at the time of her termination or that she had completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less, and thus has not made a nonfrivolous allegation that she meets the statutory definition of an employee in the competitive service. IAF, Tab 1 at 1, 4, 6; PFR File, Tab 17 at 4-5, Tab 4 at 4-6; see 5 U.S.C. § 7511(a)(1)(A)(i), (ii). We also find that the appellant has not made a nonfrivolous allegation that there was a regulatory basis for her appeal under the provisions set forth in 5 C.F.R. part 315, subpart H. The administrative judge correctly found that the appellant has not alleged that her termination was based on partisan political reasons or marital status discrimination. ID at 6; see 5 C.F.R. § 315.806(b). Moreover, the appellant’s new argument on review alleging that the agency’s “procedural defects” prevented her from “understanding her right to appeal on the appropriate grounds and pursu[e] her rights in a timely manner” does not provide a basis for jurisdiction over her probationary appeal due to conditions arising prior to her appointment pursuant to 5 C.F.R. § 315.806(c). PFR File, Tab 4 at 4. She has not alleged that the agency failed to provide to her the requisite notice of her proposed termination and an opportunity to respond, and instead argues that the agency failed to respond to her post-termination inquiries regarding her Board appeal. Id.; see 5 C.F.R. § 315.805. In any event, the agency’s decision memorandum clearly informed the appellant that she could file a Board appeal if she believed that the agency had “not followed the proper procedures for terminating a probationary employee.” IAF, Tab 1 at 9. ¶13Regardless of any technological or other difficulties the appellant alleges affected her ability to timely file her appeal and respond to the administrative judge’s orders, PFR File, Tab 1 at 4, Tab 4 at 5, she has failed to raise nonfrivolous allegations of Board jurisdiction and is not entitled to a jurisdictional hearing, see Ferdon, 60 M.S.P.R. at 329. Therefore, the administrative judge appropriately did not reach the issue of timeliness, and we do not address the appellant’s new arguments regarding this issue on appeal.8 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.9 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any10 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s11 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 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.13	Wang_Wei_DC-315H-20-0753-I-1_Final_Order.pdf	2023-11-28	WEI WANG v. DEPARTMENT OF LABOR, MSPB Docket No. DC-315H-20-0753-I-1, November 28, 2023	DC-315H-20-0753-I-1	NP
2,659	https://www.mspb.gov/decisions/nonprecedential/Bufalo_Gary_A_CH-0831-18-0487-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD GARY A. BUFALO, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER CH-0831-18-0487-I-1 DATE: November 28, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Gary A. Bufalo, Sr. , Charlotte, North Carolina, pro se. Jane Bancroft , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which affirmed the final decision by the Office of Personnel Management (OPM) that denied his request for a waiver of the interest on his redeposit for service for which he previously received a refund. For the reasons set forth below, the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). appellant’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 an appeal of the July 10, 2018 final decision by OPM denying his request for a waiver of the interest on his redeposit for service for which he had received a refund. Initial Appeal File (IAF), Tab 1 at 4, 7-8. The administrative judge originally set a prehearing conference for August 23, 2018, and a hearing date for October 15, 2018. IAF, Tab 3 at 1, 3. In an Order to Show Cause, the administrative judge postponed the prehearing conference and ordered the appellant to submit evidence proving the Board’s jurisdiction over the matter. IAF, Tab 10 at 2-3. Following the appellant’s response, the administrative judge issued an initial decision affirming OPM’s reconsideration decision. IAF, Tab 11, Tab 12, Initial Decision (ID). According to the administrative judge, the appellant was not entitled to a waiver of interest on his refunded service as a matter of law, and thus, the administrative judge denied the appellant’s request for a hearing. Id. The initial decision informed the appellant that it would become final on October 1, 2018. ID at 3. ¶3On October 7, 2018, the appellant filed a petition for review. Petition for Review (PFR) File, Tab 1. On October 10, 2018, he filed a motion to accept his petition for review as timely or to waive the time limit. PFR File, Tab 3. The agency responded to both the appellant’s motion and his petition for review. PFR File, Tab 5. According to the appellant, the administrative judge did not appear for the prehearing conference, and he was told to maintain the set date of his hearing for October 15, 2018.2 PFR File, Tab 3 at 2. He further states that, on October 1, 2018, he called the Clerk of the Board to confirm the upcoming hearing date and was informed that the case had been closed as of September 27, 2 In her August 8, 2018 Order to Show Cause, the administrative judge postponed the prehearing conference. IAF, Tab 10 at 2. It appears the appellant was not aware of this postponement.2 2018. Id. The appellant asserts that because the administrative judge told him to maintain the October 15, 2018 hearing date, and he did not learn his case was closed until October 1, 2018, he did not feel the need to file for an extension of his petition for review. Id. at 3. Instead, he was “just trying to get a conversation with the Judge and had a date already on the calendar.” Id. DISCUSSION OF ARGUMENTS ON REVIEW The appellant’s petition for review is untimely. ¶4To the extent the appellant is arguing that the petition for review was timely based on a delayed receipt of the initial decision, we disagree. Although the appellant claims he did not learn that his case had been closed until October 1, 2018, we note that he is an e-filer and is deemed to have received the initial decision on the date of electronic submission, August 27, 2018.3 PFR File, Tab 3 at 2; see Palermo v. Department of the Navy , 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.14(m)(2). Moreover, in his petition for review, the appellant admitted that he received the initial decision on August 27, 2018, the date of its submission. PFR File, Tab 1 at 3. Accordingly, any petition for review was due 35 days later, by October 1, 2018. 5 C.F.R. § 1201.114(e). Further, the initial decision stated that it would become final on October 1, 2018, unless he filed a petition for review by that date. ID at 3. Accordingly, his petition for review filed on October 7, 2018, is untimely by 6 days. The appellant has failed to demonstrate good cause for the untimeliness of his petition for review. ¶5The Board will waive the time limit for filing a petition for review only upon a showing of good cause for the delay in filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R. §§ 1201.113(d), 1201.114(f). Good cause is established by showing that a party exercised due diligence or ordinary prudence under the 3 Because the initial decision was issued on August 27, 2018, it appears the appellant either misunderstood or typed the incorrect date on his motion. PFR File, Tab 3 at 2; ID at 1. 3 particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4. To determine whether a party has shown good cause, the Board will consider the length of the delay, the reasonableness of the party’s excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition. Id. ¶6The fact that the appellant is pro se and the filing delay was only 6 days is insufficient to demonstrate good cause. See Belcher v. U.S. Postal Service , 101 M.S.P.R. 58, ¶ 7 (2006) (declining to excuse a pro se appellant’s 6-day filing delay because he did not show that he exercised due diligence); Lockhart v. Office of Personnel Management , 94 M.S.P.R. 396, ¶¶ 7-8 (2003) (declining to excuse a 5-day delay in filing where the pro se appellant failed to show good cause for the delay); see also Harris v. Department of Defense , 101 M.S.P.R. 123, ¶ 10 (2006) (finding an 8-day delay is neither lengthy nor minimal). The Board has consistently denied a waiver of its filing deadline if a good reason for the delay is not shown, even where the delay is minimal and the appellant is pro se. Edeburn v. U.S. Postal Service , 95 M.S.P.R. 486, ¶ 16 (2004). ¶7Here, the appellant’s excuse is essentially that, because there was a previously scheduled hearing for October 15, 2018, he did not feel the need to file a petition for review because he already had a conversation scheduled with the administrative judge. PFR File, Tab 3 at 2-3. He further claims that, on October 1, 2018, he was told by the Clerk of the Board that his case was closed, but the Clerk did not mention that any petition for review was due that day. Id. at 2. Neither of these justifications demonstrate that the appellant exercised due diligence or ordinary prudence in attempting to timely file his petition for review, especially given that the initial decision states in clear terms that any petition for review must be filed before October 1, 2018. ID at 3. Therefore, we conclude4 that the appellant has failed to demonstrate good cause for the untimeliness of his petition for review. ¶8To the extent the appellant is challenging the administrative judge’s failure to issue a close of record order or hold a hearing, any alleged error had no effect on the appellant’s ability to timely file a petition for review, and thus, we decline to address these arguments. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). Accordingly, we dismiss the petition for review as untimely filed. This is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review. The initial decision remains the final decision of the Board regarding OPM’s reconsideration decision. NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 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	Bufalo_Gary_A_CH-0831-18-0487-I-1_Final_Order.pdf	2023-11-28	GARY A. BUFALO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0831-18-0487-I-1, November 28, 2023	CH-0831-18-0487-I-1	NP
2,660	https://www.mspb.gov/decisions/nonprecedential/Griffin_Nadine_Yvonne_AT-1221-18-0293-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NADINE YVONNE GRIFFIN, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-1221-18-0293-W-1 DATE: November 28, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Nadine Yvonne Griffin , Auburn, Alabama, pro se. Tsopei T. Robinson , Esquire, West Palm Beach, Florida, 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 request for corrective action in an individual right of action (IRA) appeal as untimely filed.2 Generally, we grant petitions such as this one only in 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 The appellant’s June 11, 2018 petition for review of the initial decision dismissing for lack of jurisdiction her claim that she involuntarily resigned from the agency will be addressed in a separate decision. Griffin v. Department of Veterans Affairs , MSPB Docket No. AT-0752-18-0292-I-1, Petition for Review File, Tab 1. the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established 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). ¶2On petition for review, the appellant does not challenge the administrative judge’s finding that her IRA appeal was untimely filed. See Initial Appeal File (IAF), Tab 14, Initial Decision (ID) at 3. She argues that the administrative judge (1) denied her discovery that would have supported her explanation for failing to timely file an appeal; (2) mischaracterized her argument that the agency concealed the outcome of the Administrative Investigation Board investigation of her conduct; and (3) incorrectly applied equitable tolling. Petition for Review (PFR) File, Tab 1 at 5-7. We have reviewed the appellant’s arguments and have concluded that she has not shown error in the administrative judge’s determination that the Board does not have the authority to waive the statutory time limit to file an IRA appeal, and the appellant did not establish that unusual circumstances warranted the application of equitable tolling to the time limit. ID at 2-4; see 5 U.S.C. § 1214(a)(3)(A); Heimberger v. Department of Commerce , 121 M.S.P.R. 10, ¶¶ 9-10 (2014) (providing that the filing deadline set forth in 5 U.S.C. § 1214(a)(3)(A) may be subject to equitable tolling in unusual circumstances, such as when the appellant has been induced or tricked by her2 adversary’s misconduct into allowing the deadline to pass, and generally requires a showing that the appellant has been pursuing her rights diligently and some extraordinary circumstances stood in her way); 5 C.F.R. § 1209.5(a)-(b). ¶3On review, the appellant also provides two sets of email correspondence, dated August 28, 2017, and September 18, 2017, that she asserts were not available at the time she filed her appeal. PFR File, Tab 1 at 6, 18-26. Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The appellant has not explained why this evidence was unavailable before the record below closed; thus, we need not consider it. Even if we were to consider the newly submitted evidence, the September 18, 2017 correspondence indicates that the appellant believed that, at the time of the correspondence, the agency was considering disciplinary action against her, which undercuts her argument that the agency concealed its intention to propose disciplinary action against her, causing her to miss the October 2017 deadline to file an IRA appeal. PFR File, Tab 1 at 6, 18-20. Additionally, the discovery of new evidence generally does not constitute the type of extraordinary circumstances that warrants tolling a statutory deadline, especially where, as here, there is no indication that the evidence was previously unavailable because the agency improperly concealed it. Heimberger, 121 M.S.P.R. 10, ¶ 11. Accordingly, the initial decision dismissing the IRA appeal as untimely filed is affirmed. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 4 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the5 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your 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 of6 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.8	Griffin_Nadine_Yvonne_AT-1221-18-0293-W-1_Final_Order.pdf	2023-11-28	NADINE YVONNE GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-18-0293-W-1, November 28, 2023	AT-1221-18-0293-W-1	NP
2,661	https://www.mspb.gov/decisions/nonprecedential/Grapperhaus_Duane_J_CH-831M-18-0470-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DUANE J. GRAPPERHAUS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER CH-831M-18-0470-I-1 DATE: November 28, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Duane J. Grapperhaus , Breese, Illinois, pro se. Karla W. Yeakle , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). ¶2In his petition for review, the appellant raises concerns about correspondence he recently received from the Office of Personnel Management (OPM). However, OPM has explained that this correspondence is not its reconsideration decision and that it intends to issue a new reconsideration decision that contains notice of his right to appeal to the Board.2 The appellant’s arguments on review do not provide a basis for disturbing the initial decision. In light of our disposition of the appellant’s petition for review, we have not considered the untimeliness of his petition for review. ¶3After fully considering the filings in this appeal, we conclude that the petitioner has not established 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 After OPM issues a new reconsideration decision, the appellant may file a new appeal with the appropriate regional office if he disagrees with that decision. Any future appeal must be filed within the time limits set forth in the Board's regulations. 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	Grapperhaus_Duane_J_CH-831M-18-0470-I-1_Final_Order.pdf	2023-11-28	DUANE J. GRAPPERHAUS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-831M-18-0470-I-1, November 28, 2023	CH-831M-18-0470-I-1	NP
2,662	https://www.mspb.gov/decisions/nonprecedential/Grapperhaus_Duane_J_CH-0831-19-0039-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DUANE J. GRAPPERHAUS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER CH-0831-19-0039-I-1 DATE: November 28, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Duane J. Grapperhaus , Breese, Illinois, pro se. Karla W. Yeakle , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction. On petition for review, the appellant argues that the Office of Personnel Management’s September 19, 2018 letter constitutes an appealable reconsideration decision. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain3 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 4 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.6	Grapperhaus_Duane_J_CH-0831-19-0039-I-1_Final_Order.pdf	2023-11-28	DUANE J. GRAPPERHAUS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0831-19-0039-I-1, November 28, 2023	CH-0831-19-0039-I-1	NP
2,663	https://www.mspb.gov/decisions/nonprecedential/Wright_Pink_III_SF-0752-21-0116-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PINK WRIGHT, III, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER SF-0752-21-0116-I-1 DATE: November 27, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Pink Wright, III , Victorville, California, pro se. Julianne Ference , Esquire, North Las Vegas, Nevada, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his involuntary resignation 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 ¶2In a March 5, 2021 initial decision, the administrative judge dismissed the appeal for lack of jurisdiction. Initial Appeal File (IAF), Tab 13, Initial Decision (ID). The initial decision informed the appellant that the decision would become final on April 9, 2021, unless he filed a petition for review by that date. ID at 12. ¶3The appellant filed a petition for review on April 28, 2021. Petition for Review (PFR) File, Tab 1. He asserted therein that he had received the initial decision on March 5, 2021.2 Id. at 3; ID at 1; IAF, Tab 14. As to why his petition for review was untimely filed, the appellant claimed in his sworn petition for review that he thought he had to file with the Office of Special Counsel (OSC) and had done so.3 PFR File, Tab 1 at 4. He asserted that he “was refused” and advised that he “can ask for a judicial review.” Id. He acknowledges that he “continued” with the “wrong office” and requested a hearing. Id. He subsequently filed a supplement to his petition for review which appears to address the merits of his appeal, not the timeliness issue. PFR File, Tab 2 at 3. The agency did not reply to the appellant’s petition for review. DISCUSSION OF ARGUMENTS ON REVIEW ¶4A 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. See 5 C.F.R. § 1201.114(e); see also Palermo v. Department of the Navy , 120 M.S.P.R. 694, ¶ 3 (2014). Here, the initial decision was issued on March 5, 2021, and served on the appellant that same day. ID at 1; IAF, Tab 14; PFR File, Tab 1 at 3. Thus, the appellant was required to file any petition for review no later than April 9, 2021. ID at 12. The 2 The appellant registered as an e-filer. IAF, Tab 1 at 2. Registration as an e-filer constitutes consent to accept electronic service of documents issued by the Board. 5 C.F.R. § 1201.14(e). 3 The appellant did not provide any documentation of his alleged filing with OSC, or of OSC’s alleged response. 2 appellant’s petition for review of the initial decision was filed on April 28, 2021. PFR File, Tab 1. Therefore, the appellant’s petition for review was untimely filed by 19 days. ¶5The Board may waive its timeliness regulations only upon a showing of good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R. §§ 1201.12, 1201.113(d), 1201.114(g). The 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. 594, ¶ 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 which 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). The Board may decline to excuse a pro se appellant’s minimal delay when he fails to establish that he acted with due diligence. See, e.g., Lockhart v. Office of Personnel Management , 94 M.S.P.R. 396, ¶¶ 7-8 (2002). ¶6The appellant received notice of how to establish good cause for his untimely filing. PFR File, Tab 1 at 3. As described above, the appellant contends that he filed with OSC4 rather than the Board. Id. at 4. Generally, the pursuit of 4 If the appellant believes that he has engaged in protected whistleblowing activity and has been the victim of reprisal for that activity, he may file an individual right of action (IRA) appeal. The Board has jurisdiction over an IRA appeal if the appellant exhausts his administrative remedies before OSC and makes nonfrivolous allegations that (1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity as 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.3 appeal rights in another forum does not constitute good cause for the waiver of Board time limits. Scott v. U.S. Postal Service , 80 M.S.P.R. 581, ¶ 6 (1999). The Board also generally holds that the failure to follow explicit filing instructions does not constitute good cause for the ensuing delay. King v. Department of Justice, 81 M.S.P.R. 435, ¶ 5 (1999); see Sanford v. Department of Defense , 61 M.S.P.R. 207, 209 (1994). The initial decision provided the appellant with explicit instructions for filing a petition for review including the time limit for doing so and the office with which to file. ID at 12-13. The appellant did not follow those instructions. ¶7Moreover, it is not clear from the appellant’s assertions on review whether he mistakenly filed a document with OSC that he intended to be a petition for review of the Board’s initial decision in this appeal or intended to file a new whistleblowing reprisal complaint. On review, the appellant did not include his purported OSC filing, and thus, we are unable to determine his intent. PFR File, Tab 1 at 4. Moreover, the length of the appellant’s delay, 19 days, is not minimal. See Garcia v. Office of Personnel Management , 95 M.S.P.R. 597, ¶ 7 (2004) (a filing delay of 19 days is not minimal). Under these circumstances, we do not believe that the appellant has exercised the diligence required to establish good cause for his delay in filing his petition for review. ¶8Accordingly, 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 alleged involuntary resignation. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). The Board makes no finding in this decision regarding the jurisdictional or merits issues regarding any such appeal by the appellant.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 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.5 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any6 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s7 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.9	Wright_Pink_III_SF-0752-21-0116-I-1_Final_Order.pdf	2023-11-27	null	SF-0752-21-0116-I-1	NP
2,664	https://www.mspb.gov/decisions/nonprecedential/Vanover_David_PH-0752-22-0178-I-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DAVID VANOVER, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER PH-0752-22-0178-I-1 DATE: November 27, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 David Vanover , St. Albans, West Virginia, pro se. Lori L. Markle , Esquire, St. Louis, Missouri, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his removal appeal for lack of jurisdiction pursuant to a last chance settlement agreement. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2On review, the appellant submits documentation that he did not submit in the record below. Petition for Review (PFR) File, Tab 2 at 5, 8. 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 documents are either undated or 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 18, Tab 8 at 4, Tab 5 at 64, with PFR File, Tab 2 at 6-7, 9, 10. 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). ¶3Accordingly, 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	Vanover_David_PH-0752-22-0178-I-1_Final Order.pdf	2023-11-27	DAVID VANOVER v. UNITED STATES POSTAL SERVICE, MSPB Docket No. PH-0752-22-0178-I-1, November 27, 2023	PH-0752-22-0178-I-1	NP
2,665	https://www.mspb.gov/decisions/nonprecedential/Nicholson_Jason_J_DE-0752-21-0031-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JASON J. NICHOLSON, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER DE-0752-21-0031-I-1 DATE: November 27, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jason J. Nicholson , Ogden, Utah, pro se. Ian J. Watson , Esquire, San Francisco, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which sustained his removal based on the charge of falsification. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2On petition for review, the appellant submits new evidence that he claims will “prove that [he] did not make false statements.” Petition for Review (PFR) File, Tab 1 at 4. The purported new evidence consists of a series of March 2021 email communications between the appellant and an attorney who represented him in his prior criminal proceedings, sent approximately 1 month after the issuance of the initial decision. PFR File, Tab 3 at 4-5. The appellant claims that the “[e]mails show attorney stating [that he] made copies of discs with [the M.P.] letters in 2013 proving they were received by the [Internal Revenue Service (IRS)] or IRS union in 2013” and that the attorney sent the “IRS [an] email stating [the appellant] did not create the [M.P.] letters.” Id. at 1. ¶3Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the close of the record below despite the party’s due diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); see also Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board generally will not consider a new argument raised for the first time on review absent a showing that it is based on new and material evidence). The appellant claims that he “[d]id not have the information at the time of previous MSPB case” and believes it would “make [his] case stronger if not provide a win for [his]2 case.” PFR File, Tab 1 at 4. The appellant provides no explanation why he did not contact his prior attorney to obtain a statement supporting his claim that the attorney provided him the letters on a CD-ROM in 2013 at any point during the agency’s investigation or when he raised the claim on multiple occasions during the pendency of the appeal. Id. at 1-3; Initial Appeal File (IAF), Tab 10 at 45-46, Tab 21 at 1. The fact that the appellant chose not to contact the attorney until after the issuance of the initial decision does not make the information in the email communication regarding purported events several years prior new evidence. ¶4Even if we were to consider the email communications, they provide no basis for disturbing the initial decision. The appellant contacted the attorney, asking him to confirm that the federal public defender had provided the appellant with a CD-ROM containing the “[M.P.] letters” and that the attorney had “sent an email to IRS management about [the] appellant not writing” the letters. PFR File, Tab 3 at 4. The attorney told the appellant in two different responses that he had “no idea about the source of the [M.P.] letters” and knew “nothing about the origin of the [M.P.] letters.” Id. The appellant then responded that he “thought [he] gave [the attorney] a copy of the disc with the [M.P.] letters in March 2019.” Id. at 5. He suggested that the attorney had sent the IRS an email about the appellant “not creating the [M.P.] letters,” but also that the attorney “stated that [he] did not know the origin of the letters and that [he] remember[ed] seeing them several years ago and discussing them with the appellant.” Id. Only after this prompting did the attorney purportedly respond, “That sounds correct” and that he “can say those things.” Id. As argued by the agency in its response to the petition for review, the appellant did not include a sworn declaration from the attorney or otherwise prove the authenticity of the email correspondence. PFR File, Tab 5 at 6. ¶5In any event, even assuming that the appellant’s submission was a complete and genuine record of the email communications, the appellant claims to have3 provided a copy of the M.P. letters to the attorney in March 2019, the same month in which he presented the purported letters to agency special agents investigating his misconduct. PFR File, Tab 3 at 5; IAF, Tab 7 at 23-24. Contrary to the appellant’s assertion on review, the emails do not prove that the letters were “real” or that the agency received them in 2013. PFR File, Tab 3 at 1-2. The order granting the agency’s motion to compel advised the appellant that his failure to produce the CD-ROM, which was responsive to the agency’s discovery requests and not privileged, may result in sanctions and a negative inference. IAF, Tab 13 at 3-4; see 5 C.F.R. § 1201.43(a)(1) (when a party fails to comply with an order, an administrative judge may draw an inference in favor of the requesting party with regard to the information sought). The administrative judge found that the appellant’s failure to produce his copy of the CD-ROM to agency counsel as ordered constituted evidence that his claim about receiving the CD-ROM from his prior criminal counsel was false, and we see no reason to determine that she abused her discretion in imposing such a sanction. IAF, Tab 24, Initial Decision (ID) at 15-16. ¶6The appellant’s remaining arguments on review constitute mere disagreement with the administrative judge’s findings and are unavailing. He maintains that his request for back pay from 2011 to 2015 was “only a request meaning the IRS could approve or deny it if they wanted.” PFR File, Tab 3 at 2-3. Regarding specification 1 of the falsification charge, the administrative judge found that the agency established that the appellant’s time and attendance entries requesting more than 3 years of back pay were knowingly false and made with the intention of misleading the agency into providing back pay, to which he was not entitled, for his private material gain. ID at 20; see Boo v. Department of Homeland Security , 122 M.S.P.R. 100, ¶¶ 10-12 (2014) (stating that, to establish a charge of misrepresentation, falsification, or lying, an agency must prove that the appellant: (1) supplied wrong information; and (2) knowingly did so with the intention of defrauding, deceiving, or misleading the agency for his own private4 material gain). The appellant’s statement in the time and attendance request was the essence of the specification, not whether it was a request or a demand. Regarding the five specifications concerning his work product, the appellant largely repeats his claims that he correctly completed the taxpayer forms. PFR File, Tab 3 at 2-3; IAF, Tab 21 at 2, Tab 23 at 2. The administrative judge thoroughly reviewed the record evidence and made reasoned credibility findings in sustaining all 10 specifications of the falsification charge, and we find that the appellant has presented no basis for disturbing the initial decision. ID at 9-26; 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 on issues of credibility); Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987). ¶7Accordingly, we deny the petition for review and affirm the initial decision. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.5 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you6 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 7 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.9	Nicholson_Jason_J_DE-0752-21-0031-I-1_Final_Order.pdf	2023-11-27	JASON J. NICHOLSON v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DE-0752-21-0031-I-1, November 27, 2023	DE-0752-21-0031-I-1	NP
2,666	https://www.mspb.gov/decisions/nonprecedential/Montiel_Kelly_M_CH-0752-17-0221-I-2_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KELLY M. MONTIEL, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER CH-0752-17-0221-I-2 DATE: November 27, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kelly M. Montiel , Chicago, Illinois, pro se. Judson R. Peverall , Springfield, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which affirmed her removal for misconduct. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2The agency filed its response to the appellant’s petition for review untimely and has not shown good cause for its untimely filing. Therefore, we DENY the agency’s motion to waive the filing deadline. In reaching our decision, we have considered neither the agency’s response to the petition for review nor the appellant’s reply to the agency’s response. ¶3The appellant challenges the administrative judge’s findings on penalty. Petition for Review File, Tab 3 at 27-33. To the extent that the appellant’s challenge is based on the agency’s treatment of other similarly situated employees, we find that the administrative judge’s analysis is consistent with Singh v. U.S. Postal Service , 2022 MSPB 15, ¶¶ 9-21, in which the Board overruled several cases that the appellant cites on review, including Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657 (2010), Boucher v. U.S. Postal Service, 118 M.S.P.R. 640 (2012), and Portner v. Department of Justice , 119 M.S.P.R. 365 (2013). Initial Appeal File, Tab 24, Initial Decision at 41. For the reasons stated in the initial decision, we agree with the administrative judge that the agency proved by preponderant evidence that the removal penalty does not exceed the tolerable limits of reasonableness. Id. at 39-42; see Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981).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	Montiel_Kelly_M_CH-0752-17-0221-I-2_Final Order.pdf	2023-11-27	KELLY M. MONTIEL v. DEPARTMENT OF JUSTICE, MSPB Docket No. CH-0752-17-0221-I-2, November 27, 2023	CH-0752-17-0221-I-2	NP
2,667	https://www.mspb.gov/decisions/nonprecedential/Durr_Stephen_CH-0752-18_0401-I-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD STEPHEN DURR, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER CH-0752-18-0401-I-1 DATE: November 27, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Stephen Durr , Chicago, Illinois, pro se. Maryl R. Rosen , Esquire, Chicago, Illinois, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 for lack of jurisdiction and his claim contesting his removal as untimely filed with no good cause shown to excuse the delay. Subsequently, the appellant filed a motion titled, “PETITIONER MOTION FOR WITHDRAWL OF PENDING PETITION FOR REVIEW,” wherein he made 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). a clear and unequivocal withdrawal request. Petition for Review File, Tab 9 at 4. The agency did not object to the appellant’s motion. ¶2Finding that withdrawal is appropriate under these circumstances, we DISMISS the petition for review as withdrawn with prejudice to refiling. The initial decision of the administrative judge is final. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file3 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 4 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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. Contact information for the courts of appeals can be 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	Durr_Stephen_CH-0752-18_0401-I-1_Final Order.pdf	2023-11-27	STEPHEN DURR v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-18-0401-I-1, November 27, 2023	CH-0752-18-0401-I-1	NP
2,668	https://www.mspb.gov/decisions/nonprecedential/Holloman_Shalonda_DA-0752-22-0072-I-2_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SHALONDA HOLLOMAN, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DA-0752-22-0072-I-2 DATE: November 27, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shalonda Holloman , Mansfield, Texas, pro se. John D. Norquist , Esquire, and Kristina Letcher , Esquire, Fort Belvoir, Virginia, 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 for excessive absences . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2The “efficiency of the service” standard of 5 U.S.C. § 7513(a) is the “ultimate criterion” for determining both whether any discipline is warranted and whether a particular penalty may be sustained. Owens v. Department of Homeland Security , 2023 MSPB 7, ¶ 15. The Board has held that “an absence for which no foreseeable end is in sight constitutes a burden which no employer can efficiently endure.” Ward v. General Services Administration , 28 M.S.P.R. 207, 209 (1985). Here, because the appellant’s testimony that she returned to work prior to the agency’s removal action was undisputed, the administrative judge found that the agency did not show that the appellant’s absences lacked a foreseeable end. Initial Appeal File (IAF), Tab 25, Initial Decision (ID) at 7. Thus, the appellant’s removal did not promote the efficiency of the service and could not be sustained. ID at 7-8. ¶3On petition for review, the agency argues, among other things, that the administrative judge erred by not allowing it to supplement the record with the appellant’s time and attendance records in rebuttal to the appellant’s testimony. Petition for Review (PFR) File, Tab 1 at 5 n.1; ID at 3 n.2; IAF, Tabs 19, 22. Once the record closes, additional evidence or argument will ordinarily not be accepted unless: (1) the party submitting it shows that the evidence or argument2 was not readily available before the record closed; or (2) it is in rebuttal to new evidence or argument submitted by the other party just before the record closed. See 5 C.F.R. § 1201.59(c). Here, the administrative judge informed the agency of its burden of establishing that the removal promoted the efficiency of the service and that whether the absence had “no foreseeable end” in sight was integral to its burden. IAF, Tab 15 at 3-4. Under the particular circumstances of this case, we do not consider the appellant’s testimony that she returned to work to be new evidence or argument submitted by the other party just before the record closed. Thus, we find no abuse of discretion by the administrative judge in denying the agency’s motion to supplement the record. ID at 3 n.2; see 5 C.F.R. § 1201.59(c). ¶4For the first time in its petition for review, the agency argues that the appellant’s return to work by teleworking was inadequate to constitute a “foreseeable end” to her absences. PFR File, Tab 1 at 5-6, 10. It argues that the appellant was required to be physically present in the office. PFR File, Tab 1 at 5-6, 10. It also argues that she did not accomplish much in the few weeks she resumed work prior to her removal. Id. 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 agency has not made such a showing here. ¶5In addition, 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. See Spivey v. Department of Justice , 2022 MSPB 24, ¶ 15; Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980). We have reviewed the appellant’s time records and agree with the administrative judge that they support the appellant’s testimony that she returned to work and thus would not change the outcome of this appeal. ID at 3 n.2; IAF, Tab 22 at 4-5, 8. We have also considered the agency’s arguments that the3 appellant was not permitted to telework and was unproductive, and, weighing them against the appellant’s arguments and evidence submitted in response, we are unpersuaded. IAF, Tab 23 at 5, 54, 67-68, 89; PFR File, Tab 1 at 5-6, 10, Tab 3 at 7-9. Accordingly, we deny the agency’s petition for review and affirm the initial decision. ¶6Lastly, we note that the appellant has raised challenges to the agency’s certification that it has provided interim relief. PFR File, Tab 3 at 11-12; see 5 C.F.R. § 1201.116(b). However, we find that the agency’s petition does not meet the criteria for review, and the issuance of our final decision renders moot any dispute concerning the agency’s compliance with the interim relief order. Owens, 2023 MSPB 7, ¶ 10. If the appellant believes that the agency is in noncompliance with the Board’s final order, she may file a petition for enforcement in accordance with the instructions provided below. Id. For these same reasons, we will not consider the agency’s challenges to the interim relief ordered by the administrative judge. PFR File, Tab 1 at 11-12, 15-16; see Ginocchi v. Department of the Treasury , 53 M.S.P.R. 62, n.6 (1992) (explaining that the Board does not entertain interim compliance proceedings in a petition for review). ORDER ¶7We ORDER the agency to cancel the removal action and retroactively restore the appellant effective November 30, 2021, to her previous position as an Office Automation Assistant, GS-0326-06. 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. ¶8We 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’s4 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. ¶9We 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). ¶10No 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). ¶11For 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 of5 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 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.6 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must 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 your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 9 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ 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 .	Holloman_Shalonda_DA-0752-22-0072-I-2_Final Order.pdf	2023-11-27	SHALONDA HOLLOMAN v. DEPARTMENT OF DEFENSE, MSPB Docket No. DA-0752-22-0072-I-2, November 27, 2023	DA-0752-22-0072-I-2	NP
2,669	https://www.mspb.gov/decisions/nonprecedential/Keeler_Pamela_J_DE-315H-23-0048-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PAMELA J. KEELER, Appellant, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Agency.DOCKET NUMBER DE-315H-23-0048-I-1 DATE: November 22, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Pamela Jane Yvonne Keeler , Anaheim, California, pro se. Nicole A. Allard , Esquire, Colin J. Ratterman , Esquire, and William Edwards , Esquire, Denver, Colorado, 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 probationary termination appeal for lack of jurisdiction. On petition for review, the appellant argues the merits of her probationary termination. Petition for Review (PFR) File, Tab 1 at 3-6. 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). ¶2The appellant provides several documents for the Board’s consideration on review.2 PFR File, Tab 1 at 3-16. The Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980); 5 C.F.R. § 1201.115(d). The appellant’s documents submitted for the first time on review, which include various medical documents for an individual not identified by the appellant, are immaterial to the issue of whether the Board has jurisdiction over this appeal. PFR File, Tab 1 at 7-12; see 5 C.F.R. § 1201.115(d) (explaining that the Board may grant a petition for review if it contains new and material evidence). We therefore decline to consider them further. 2 Some of the documents the appellant included with her petition for review are in the record below and thus provide no basis to disturb the initial decision. PFR File, Tab 1 at 13-14; Initial Appeal File, Tab 1 at 16-17; see Brough v. Department of Commerce , 119 M.S.P.R. 118, ¶ 4 (2013) (observing that the Board will grant a petition for review based on new and material evidence under certain circumstances but that evidence that is already a part of the record is not new). We decline to discuss these documents further.2 ¶3Accordingly, we affirm the initial decision. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any4 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s5 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Keeler_Pamela_J_DE-315H-23-0048-I-1_Final_Order.pdf	2023-11-22	PAMELA J. KEELER v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. DE-315H-23-0048-I-1, November 22, 2023	DE-315H-23-0048-I-1	NP
2,670	https://www.mspb.gov/decisions/nonprecedential/Barnes_Paul_N_DC-3443-17-0570-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PAUL N. BARNES, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER DC-3443-17-0570-I-1 DATE: November 22, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Paul N. Barnes , Dayton, Ohio, pro se. Stephen W Artymowicz , Esquire, Aberdeen Proving Ground, Maryland, 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 affirmed the agency’s denial of his application for early retirement under the Voluntary Early Retirement Authority (VERA). Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to address the appellant’s claim that the agency made inconsistent VERA determinations, we AFFIRM the initial decision. ¶2For the reasons provided in the initial decision, we agree with the administrative judge’s finding that the appellant failed to meet his burden of proving that he is entitled to early retirement under VERA. Initial Appeal File (IAF), Tab 31, Initial Decision (ID) at 6-9; see Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986); Davis v. Office of Personnel Management, 104 M.S.P.R. 70, ¶ 7 (2006) (observing that the burden of proving entitlement to retirement benefits is on the applicant for benefits). ¶3In his petition for review, the appellant reasserts his claim that the agency’s reason for denying his VERA application is inconsistent with the fact that the agency approved the applications of other employees without an approved restructuring plan in place. Petition for Review (PFR) File, Tab 1 at 4-5; IAF, Tab 30 at 44-45. He further claims that this inconsistency demonstrates the agency’s improper discretion. PFR File, Tab 1 at 5. Because the administrative judge did not consider those claims, we modify the initial decision to address them as follows. ¶4In a memorandum dated March 11, 2017, the Director of the U.S. Army Research Laboratory (ARL) explained that the “ability to restructure the position2 being vacated (e.g. Grade Level, Occupation Series)” was a relevant consideration in determining whether to approve a VERA application during “ARL FY17 Round Two Buyout Authority” and that a restructured position had to be filled no later than 1 year after an application was approved. IAF, Tab 14 at 51, 53. Thus, we find that the relevant inquiry here is whether the appellant’s position could have been restructured and filled within 1 year. The ARL Director declared that he thought he could not approve the restructure of the appellant’s branch chief position without an approved reorganization plan in place for the directorate. IAF, Tab 25 at 17. The ARL Director further declared that he was not comfortable approving the appellant’s VERA application because the agency would have had to restructure and fill his position within 1 year. Id. at 17-18. ¶5In support of his claims on review, the appellant references his exhibits in the record. PFR File, Tab 1 at 4; IAF, Tab 30 at 70-71, 79-81, 86-90. In relevant part, the appellant refers to an email in which he claims that two individuals within his division who were part of the administrative staff were granted VERA benefits in fiscal year 2016. PFR File, Tab 1 at 4; IAF, Tab 30 at 70. In addition, the appellant refers to agency counsel’s discovery response in which he admits that there were approved VERA offers in fiscal year 2017 for other directorates within ARL that had not undergone reorganization that year. PFR File, Tab 1 at 4; IAF, Tab 30 at 87. We find that the appellant’s evidence fails to show that the agency was inconsistent to determine that certain positions (like his branch chief position) could not be restructured without a reorganization plan in place and filled within 1 year and that other positions (like administrative staff positions) could be. The ARL Director’s memorandum contemplates making VERA determinations based on, among other things, the grade level and occupation series of an applicant’s position. IAF, Tab 14 at 53. Moreover, the agency’s regulations state that “VERA may be based on occupation; grade or pay band; skills, knowledge, or other factors related to a position.” Id. at 32. Therefore, we discern no abuse of discretion.3 ¶6In addition, the appellant challenges on review the administrative judge’s finding that the agency’s failure to identify which positions would be eligible for VERA benefits prior to accepting applications does not render the agency’s decision erroneous or suggest an abuse of discretion. PFR File, Tab 1 at 5-6; ID at 9. Based on our review of the record, we discern no reason to disturb that finding. ¶7Further, the appellant alleges on review that he was unable to present evidence of alleged poor performers who were granted VERA benefits because the agency is prohibited from providing such personal information. PFR File, Tab 1 at 6. The Board’s regulations reflect an expectation that the parties will start and complete discovery with minimum Board intervention. 5 C.F.R. § 1201.71; see King v. Department of the Navy , 98 M.S.P.R. 547, ¶ 10 (2005) (recognizing that a party does not need the Board’s approval to engage in discovery, and the Board generally only becomes involved in discovery matters if a party files a motion to compel), aff’d, 167 F. App’x 191 (Fed. Cir. 2006). Here, the appellant does not allege, and the record does not reflect, that he requested evidence of alleged poor performers through discovery. Thus, we are not persuaded by the appellant’s claim that he could not provide evidence of alleged poor performers. ¶8Accordingly, we affirm the agency’s denial of the appellant’s VERA application. NOTICE OF APPEAL RIGHTS2 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “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 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	Barnes_Paul_N_DC-3443-17-0570-I-1_Final_Order.pdf	2023-11-22	PAUL N. BARNES v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-3443-17-0570-I-1, November 22, 2023	DC-3443-17-0570-I-1	NP
2,671	https://www.mspb.gov/decisions/nonprecedential/Binns-Lewis_Earnestine_M_DC-1221-20-0517-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD EARNESTINE M. BINNS-LEWIS, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DC-1221-20-0517-W-1 DATE: November 22, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Earnestine M. Binns-Lewis , Fort Meade, Maryland, pro se. Samuel Frank Lazzaro, Jr. , Esquire, Fort Meade, Maryland, 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 individual right of action appeal for lack of jurisdiction.2 On 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 We GRANT the agency’s motion to find good cause for the untimely filing of its response to the appellant’s petition. 5 C.F.R. § 1201.114(g). We DENY the agency’s motion for leave to file a motion to dismiss the appeal on grounds of res judicata. Given our finding that the Board lacks jurisdiction over this appeal, the doctrine of res judicata has no possible application. See Hau v. Department of Homeland Security , 123 M.S.P.R. 620, ¶ 9 (2016) (observing that the Board must have jurisdiction over an petition for review, the appellant provides additional documentary evidence and argues that the administrative judge did not adequately review the record. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established 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). ¶2We disagree with the appellant’s suggestion that the administrative judge was remiss in his review of the record. The appellant has the burden of proving jurisdiction. 5 C.F.R. § 1201.57(b). A party whose submissions lack clarity risks being found to have failed to meet her burden of proof. Luecht v. Department of the Navy, 87 M.S.P.R. 297, ¶ 8 (2000). It is not the Board’s obligation to pore through the record or to construe and make sense of allegations set forth at various parts of an extremely voluminous case file. Keefer v. Department of Agriculture, 92 M.S.P.R. 476, ¶ 18 n.2 (2002). Rather, it is up to litigants to present their allegations and evidence in an organized way. appeal to apply the doctrine of res judicata), aff’d sub nom. Bryant v. Merit Systems Protection Board , 878 F.3d 1320 (Fed. Cir. 2017). 2 ¶3The appellant’s newly submitted evidence3 does not provide a basis for further review. The Board may consider evidence submitted for the first time on petition for review if it implicates the Board’s jurisdiction and warrants an outcome different from that in the initial decision. Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 7 (2013); see Atkinson v. Department of State , 107 M.S.P.R. 136, ¶¶ 12-13 (2007). However, we find that the attached documents are not material to the issue of jurisdiction, and thus are not material to the outcome of this appeal. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (holding that the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). 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. 3 Some of the attached documents appear to predate the close of the record below. Under the circumstances of this case, it is unnecessary to determine which of these documents, if any, were already included in the appellant’s voluminous jurisdictional response. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you4 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 5 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Binns-Lewis_Earnestine_M_DC-1221-20-0517-W-1_Final_Order.pdf	2023-11-22	null	DC-1221-20-0517-W-1	NP
2,672	https://www.mspb.gov/decisions/nonprecedential/Broadbent_Meredith_DC-0831-17-0738-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MEREDITH M. BROADBENT, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DC-0831-17-0738-I-1 DATE: November 22, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Debra D'Agostino , Esquire, Washington, D.C., for the appellant. Carla Robinson , 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 affirmed the reconsideration decision of the Office of Personnel Management (OPM) concerning the interest on her voluntary contributions account. On petition for review, the appellant reiterates the arguments she made in her appeal below. She also requests, for the first time on review, that the Board 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). pursuant to 5 U.S.C. § 706, that OPM’s withholding of and delay in paying her the interest that accrued in her voluntary contributions account following her August 1, 2008 retirement was arbitrary and capricious.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 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). Because the appellant failed to allege, much less establish, that her argument is based on new and material evidence not previously available despite her due diligence, we have not considered it. 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	Broadbent_Meredith_DC-0831-17-0738-I-1_Final_Order.pdf	2023-11-22	MEREDITH M. BROADBENT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0831-17-0738-I-1, November 22, 2023	DC-0831-17-0738-I-1	NP
2,673	https://www.mspb.gov/decisions/nonprecedential/Henderson_Brett_G_DE-0432-21-0076-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BRETT G. HENDERSON, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DE-0432-21-0076-I-1 DATE: November 22, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Brett G. Henderson , Omaha, Nebraska, pro se. Linda L. Bowers , Esquire, Auburn, Nebraska, 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 affirmed his performance-based removal under chapter 43 and found that he failed to prove his affirmative defenses of discrimination based on race and retaliation for prior equal employment opportunity (EEO) activity. On petition for review, the appellant makes the following arguments: he was not provided with 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). sufficient opportunity to improve his performance during the performance improvement period (PIP); the administrative judge made unsupported credibility findings; he encountered computer issues during the PIP that affected his performance; some of the errors attributed to him during the PIP were unsupported; he was subjected to additional instances of discrimination dating back to 2010; his attorney “failed” him and did not include additional evidence in the record; the agency improperly breached a confidentiality agreement; he is a disabled veteran with post-traumatic stress disorder; and several agency officials involved in his removal had a conflict of interest . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. ¶2In the initial decision, the administrative judge concluded that the appellant failed to meet his burden of proving his claims that his race or prior EEO activity were motivating factors in his removal. Initial Appeal File, Tab 32, Initial Decision at 31-39 (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 initial2 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). ¶3Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on4 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Henderson_Brett_G_DE-0432-21-0076-I-1_Final_Order.pdf	2023-11-22	BRETT G. HENDERSON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DE-0432-21-0076-I-1, November 22, 2023	DE-0432-21-0076-I-1	NP
2,674	https://www.mspb.gov/decisions/nonprecedential/Kelly-Crisler_Consuela_A_DC-3443-22-0322-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CONSUELA A. KELLY-CRISLER, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER DC-3443-22-0322-I-1 DATE: November 22, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Consuela A. Kelly-Crisler , APO, AE, pro se. David H Roberts , Esquire, APO, AE, for the agency. Sarah Dawn Dobbs , Wiesbaden, AE, 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 for lack of jurisdiction her appeal regarding the hiring authority under which she was appointed to her position. On petition for review, the appellant argues the following: (1) the administrative judge inaccurately stated that she failed to provide a narrative statement describing the basis of her appeal; (2) the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). administrative judge erred in finding that the Board lacks jurisdiction over the matter; and (3) the agency discriminated against her and committed a series of harmful procedural errors. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established 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). ¶2We agree with the appellant’s contention that the administrative judge inaccurately stated that she had failed to provide a narrative statement describing the basis of her claim. Petition for Review (PFR) File, Tab 1 at 7; Initial Appeal File (IAF), Tab 5 at 5-7, Tab 6, Initial Decision at 2. The administrative judge’s misstatement, however, is not material to the outcome of this appeal.2 See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984). We have considered the appellant’s remaining assertions; however, we find that they do not provide a basis to disturb the initial decision. 2 To the extent the administrative judge did not consider the appellant’s claim of marital status discrimination, which was set forth in her narrative statement, IAF, Tab 5 at 6-7, we clarify that such a claim is not an independent basis of Board jurisdiction, and, therefore, a different outcome is not warranted, see Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980) (explaining that prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). 2 ¶3The appellant provides numerous documents with her petition for review, to include regulations and agency instructions, which she ostensibly contends are relevant to the Board’s jurisdiction. PFR File, Tab 1 at 12-62. The Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). Here, the appellant’s assertion that she only recently became aware of the relevance of these documents, PFR File, Tab 1 at 6, does not constitute good cause. Moreover, the documents are not material to the outcome of this appeal. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). 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	Kelly-Crisler_Consuela_A_DC-3443-22-0322-I-1_Final_Order.pdf	2023-11-22	null	DC-3443-22-0322-I-1	NP
2,675	https://www.mspb.gov/decisions/nonprecedential/Perry_Oliver_DC-3443-22-0673-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD OLIVER PERRY, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER DC-3443-22-0673-I-1 DATE: November 22, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Oliver Perry , Arnold, Maryland, pro se. Evan Perlman , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction his appeal of the agency’s decision to rescind an offer of employment. On petition for review, the appellant reargues that the agency improperly initiated a background investigation while his security clearance investigation was ongoing and subjected him to an employment practice when it rescinded the tentative job offer. He also argues for the first time on 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). review that the agency made a suitability determination that violated 5 C.F.R. § 731.202(d). Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established 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). ¶2The appellant argues for the first time on review that the agency’s suitability determination violated 5 C.F.R. § 731.202(d).2 Petition for Review (PFR) File, Tab 6 at 5. Pursuant to the Office of Personnel Management’s regulations, the Board has jurisdiction over certain matters involving suitability for Federal employment. See Kazan v. Department of Justice , 112 M.S.P.R. 390, ¶ 6 (2009). Under 5 C.F.R. § 731.501(a), when an agency takes a “suitability action” against a person, that person may appeal the action to the Board. Kazan, 112 M.S.P.R. 390, ¶ 6. A suitability action is distinct from a suitability determination, the former constituting a cancellation of eligibility, a removal, a 2 The Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016). However, we have considered the appellant’s argument to the extent it impacts the Board’s jurisdiction, which is always before the Board and can be raised by the parties or sua sponte by the Board at any time. Ney v. Department of Commerce, 115 M.S.P.R. 204, ¶ 7 (2010) .2 cancellation of reinstatement eligibility, or a debarment, and the latter constituting the underlying decision that a person is suitable or not suitable for employment in a covered position or with a particular agency. 5 C.F.R. §§ 732.202, 731.203(a), 731.501(a); see Ricci v. Merit Systems Protection Board , 953 F.3d 753, 757 (Fed. Cir. 2020) (explaining the difference between suitability determinations and actions). Only suitability actions are appealable to the Board, suitability determinations are not. Kazan, 112 M.S.P.R. 390, ¶ 6 (citing 5 C.F.R. § 731.501(a)). A nonselection or cancellation of eligibility for a specific position is not a suitability action even if it is based on the suitability criteria of 5 C.F.R. § 731.202. Kazan, 112 M.S.P.R. 390, ¶ 6 ; 5 C.F.R. § 731.203(b). ¶3The rescission of a tentative offer of employment, as occurred here, also is not a suitability action that is appealable to the Board. Ricci, 953 F.3d at 756-57. There is no indication that the appellant was subject to anything other than a nonselection for a specific position. IAF, Tab 10 at 14-15. The record is devoid of evidence that the agency cancelled the appellant’s eligibility, removed him, cancelled his reinstatement eligibility, or debarred him. Thus, he has not alleged facts indicating that the agency subjected him to a suitability action. His claim that the agency violated 5 C.F.R. § 731.202(d) does not provide a basis for disturbing the administrative judge’s determination that the appellant failed to establish jurisdiction over his appeal. ¶4The appellant also filed a motion to dismiss the agency’s response to his petition for review as untimely. PFR File, Tab 5. The agency’s response was due on December 26, 2022, but was filed on December 27, 2022. PFR File, Tab 2 at 2, Tab 4. We find that the agency timely filed its response on the first workday following the filing deadline, which fell on a holiday. PFR File, Tab 4; see 5 C.F.R. §§ 1201.23 (explaining that when the last day for filing falls on a weekend or a Federal holiday, the filing period includes the first workday after that date), 1201.114(e) (providing that a party must file a response to a petition3 for review within 25 days of the date of service of the petition for review). Accordingly, we deny the appellant’s motion. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any5 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s6 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.8	Perry_Oliver_DC-3443-22-0673-I-1_Final_Order.pdf	2023-11-22	OLIVER PERRY v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-3443-22-0673-I-1, November 22, 2023	DC-3443-22-0673-I-1	NP
2,676	https://www.mspb.gov/decisions/nonprecedential/Stewart_Fenyang_DC-0752-22-0251-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD FENYANG STEWART, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER DC-0752-22-0251-I-1 DATE: November 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Fenyang Stewart , Alexandria, Virginia, pro se. Larry Pruitt , Esquire, Joint Base Andrews, Maryland, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his involuntary resignation appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review.2 Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2The appellant challenges the administrative judge’s conclusion that the Board lacks jurisdiction over his involuntary resignation appeal. Petition for Review (PFR) File, Tab 1 at 4-8. An appellant is entitled to a jurisdictional hearing if he makes a nonfrivolous allegation3 of Board jurisdiction. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994). Here, we discern no basis to disturb the administrative judge’s conclusion that the appellant failed to nonfrivolously allege that he qualified as an “employee,” as defined under 5 U.S.C. chapter 75.4 Initial Appeal File (IAF), Tab 15, Initial Decision (ID) at 7-9; see Winns v. U.S. Postal Service , 124 M.S.P.R. 113, ¶ 8 (2017) (explaining that only an “employee,” as defined under 5 U.S.C. chapter 75, can appeal an adverse action to the Board), aff’d sub nom. Williams v. Merit Systems Protection Board, 892 F.3d 1156 (Fed. Cir. 2018); see also Robinson v. Department of the 2 Because we so find, we need not address the timeliness of the appellant’s petition for review. 3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). 4 For instance, there is no indication that the appellant was serving an initial appointment pending conversation to the competitive service or, even if he was, that he was not serving a probationary or trial period at the time of his purportedly involuntary resignation. See 5 U.S.C. § 7511(a)(1)(C)(i); see also Martinez v. Department of Homeland Security , 118 M.S.P.R. 154, ¶ 6 (2012). 2 Army, 102 M.S.P.R. 546, ¶ 9 (2006) (indicating that, in order for the Board to have jurisdiction over an involuntary resignation claim, an appellant must meet the definition of “employee” under 5 U.S.C. § 7511). Thus, a different outcome is not warranted. ¶3The appellant asserts that the administrative judge failed to consider his claim of familial status discrimination. PFR File, Tab 1 at 8. We disagree. Indeed, the administrative judge addressed this claim, explaining that, to the extent the appellant was alleging marital status discrimination,5 such an allegation did not warrant a different outcome because the appellant was in the excepted service. ID at 7 n.4; see Barrand v. Department of Veterans Affairs , 112 M.S.P.R. 210, ¶ 13 (explaining that 5 C.F.R. § 315.806, which provides a regulatory right of appeal when an appellant claims marital status discrimination, applies only to individuals in the competitive service). ¶4Accordingly, we affirm the initial decision.6 NOTICE OF APPEAL RIGHTS7 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a 5 The appellant’s filings indicated that this was indeed the basis of his familial status discrimination claim. E.g., IAF, Tab 11 at 10 (“Here, Appellant has made an non frivolous claim . . . that his termination was based on his familial status as a divorcee.”) (grammar and punctuation in original). 6 With its response, the agency provides additional documents, i.e., a printout regarding Schedule A hiring from the Equal Employment Opportunity Commission’s website. PFR File, Tab 4 at 9-22. These documents are not material to the outcome of this matter. 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.3 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The4 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file5 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your petition for 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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	Stewart_Fenyang_DC-0752-22-0251-I-1_Final_Order.pdf	2023-11-17	FENYANG STEWART v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DC-0752-22-0251-I-1, November 17, 2023	DC-0752-22-0251-I-1	NP
2,677	https://www.mspb.gov/decisions/nonprecedential/Special_Counsel_ex_rel_McDaniel_CB-1208-23-0006-U-5_Order_on_Stay_Extension_Request.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SPECIAL COUNSEL EX REL. STEVEN MCDANIEL, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER CB-1208-23-0006-U-5 DATE: November 17, 2023 THIS STAY ORDER IS NONPRECEDENTIAL1 Dustin Seth Frankel , Esquire, Washington, D.C., for the petitioner. Katherine W. Krems , Esquire, Washington, D.C., for the relator.2 Glen E. Woodworth , Esquire, Anchorage, Alaska, for the agency. Theodore M. Miller , Esquire, Seattle, Washington, for the agency. 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 To the extent the relator may have a new representative, he must file a signed designation pursuant to 5 C.F.R. § 1201.31. ORDER ON STAY EXTENSION REQUEST ¶1Pursuant to 5 U.S.C. § 1214(b)(1)(B), the Office of Special Counsel (OSC) requests a 60-day extension of the previously granted stay of the probationary termination of Mr. McDaniel by the Department of Veterans Affairs (agency) while OSC completes its investigation and legal review of the matter and determines whether to seek corrective action. For the reasons discussed below, OSC’s request is GRANTED. BACKGROUND ¶2On April 6, 2023, OSC requested a 45-day initial stay of the probationary termination of Mr. McDaniel based on alleged misconduct. Special Counsel ex rel. McDaniel v. Department of Veterans Affairs , MSPB Docket No. CB-1208-23- 0006-U-1, Stay Request File, Tab 1. In its initial stay request, OSC argued that it had reasonable grounds to believe that the agency’s action was in retaliation for Mr. McDaniel’s protected disclosures and activities under 5 U.S.C. § 2302(b)(8) and (b)(9)(C). Id. On April 10, 2023, OSC’s initial stay request was granted through and including May 24, 2023. Special Counsel ex rel. McDaniel v. Department of Veterans Affairs , MSPB Docket No. CB-1208-23-0006-U-1, Order on Stay Request, ¶¶ 1, 10 (Apr. 10, 2023). OSC subsequently requested, and the Board granted, three extensions of the stay.3 The stay currently ends on November 20, 2023. Special Counsel ex rel. McDaniel v. Department of Veterans 3 By order dated May 24, 2023, the Board granted OSC’s request to extend the stay for 60 days, through and including July 23, 2023. Special Counsel ex rel. McDaniel v. Department of Veterans Affairs , MSPB Docket No. CB-1208-23-0006-U-2, Order on Stay Extension Request (May 24, 2023). By order dated July 19, 2023, the Board granted OSC’s second request to extend the stay for 60 days, through and including September 21, 2023. Special Counsel ex rel. McDaniel v. Department of Veterans Affairs, MSPB Docket No. CB-1208-23-0006-U-3, Order on Stay Extension Request (July 19, 2023). By order dated September 7, 2023, the Board granted OSC’s third request to extend the stay for 60 days, through and including November 20, 2023. Special Counsel ex rel. McDaniel v. Department of Veterans Affairs , MSPB Docket No. CB-1208-23-0006-U-4, Order on Stay Extension Request (Sept. 7, 2023). 2 Affairs, MSPB Docket No. CB-1208-23-0006-U-4, Order on Stay Extension Request, ¶ 8 (Sept. 7, 2023). ¶3On November 2, 2023, OSC filed a fourth request to extend the stay for an additional 60 days. Special Counsel ex rel. McDaniel v. Department of Veterans Affairs, MSPB Docket No. CB-1208-23-0006-U-5, Stay Request File (U-5 SRF), Tab 1. OSC asserts that the agency consents to the extension request, and the agency has not filed a response. Id. at 2. ANALYSIS ¶4A stay granted pursuant to 5 U.S.C. § 1214(b)(1) is issued to maintain the status quo ante while OSC and the agency involved resolve the disputed matter. Special Counsel v. Department of Transportation , 74 M.S.P.R. 155, 157 (1997). The purpose of the stay is to minimize the consequences of an alleged prohibited personnel practice. Id. In evaluating a request for an extension of a stay, the Board will review the record in the light most favorable to OSC and will grant a stay extension request if OSC’s prohibited personnel practice claim is not clearly unreasonable. Id. at 158. The Board may grant the extension for any period that it considers appropriate. 5 U.S.C. § 1214(b)(1)(B); Special Counsel ex rel. Waddell v. Department of Justice , 105 M.S.P.R. 208, ¶ 3 (2007). ¶5In its fourth request for a 60-day extension of the existing stay, OSC asserts that it has submitted a report of its findings, pursuant to 5 U.S.C. § 1214(b)(2) (B), to the agency, the Board, and the Office of Personnel Management, finding that Mr. McDaniel’s probationary termination constituted a prohibited personnel practice in violation of 5 U.S.C. §§ 2302(b)(8) and (b)(9)(C). U-5 SRF, Tab 1 at 2, 6. OSC also asserts that the agency has communicated interest in resolving the matter, and requests the extension to allow the parties an opportunity to negotiate corrective action, and to allow time for the agency to complete its response to OSC’s findings. Id. at 2.3 ¶6Viewing the record in the light most favorable to OSC, and considering the fact that the evidentiary record supporting OSC’s initial stay request does not appear to have changed materially since the initial stay was granted, an extension of the stay is not clearly unreasonable. See Special Counsel ex rel. StephensonPino v. Department of the Navy , 97 M.S.P.R. 25, ¶¶ 5-6 (2004) (granting a stay extension request when OSC’s record supporting its claim had not changed, the agency did not oppose the extension request, and OSC represented that the parties were making progress toward a settlement agreement) . However, a separate determination must be made on the length of a requested stay. Waddell, 105 M.S.P.R. 208, ¶ 5. It is the intent of Congress that stays not be extended for long periods. Special Counsel v. Department of the Treasury , 71 M.S.P.R. 419, 421 (1996). Moreover, the Board is obligated to press OSC to present corrective action cases in a timely manner. Id. Here, OSC has made significant progress, as it has completed its investigation, and submitted its report of findings. U-5 SRF, Tab 1 at 2, 6. Furthermore, the agency has consented to the extension, and it is beneficial to allow the parties an opportunity to resolve this matter outside of litigation. Id. at 2; see Special Counsel v. Department of Veterans Affairs , 46 M.S.P.R. 544, 545-46 (1991) (finding that an extension of a stay to allow the parties time to attempt a resolution without litigation is not clearly unreasonable). Accordingly, in light of these factors, we find that a 60- day extension of the stay is warranted, and we therefore grant OSC’s request. ORDER ¶7Pursuant to 5 U.S.C. § 1214(b)(1)(B), a 60-day extension of the stay is hereby GRANTED, and it is ORDERED that: (1)The stay issued on April 10, 2023, is extended through and including January 19, 2024, on the terms and conditions set forth in that Order; (2)The agency shall not effect any changes in the relator’s duties or responsibilities that are inconsistent with the relator’s salary or grade4 level, or impose upon the relator any requirement which is not required of other employees of comparable position, salary, or grade level; (3)Within 5 working days of this Order, the agency shall submit evidence to the Clerk of the Board showing that it has complied with this Order; (4)Any request for an extension of this stay pursuant to 5 U.S.C. § 1214(b)(1)(B) and 5 C.F.R. § 1201.136(b) must be received by the Clerk of the Board and the agency, together with any further evidentiary support, on or before January 4, 2024; and (5)Any comments on such a request that the agency wants the Board to consider pursuant to 5 U.S.C. § 1214(b)(1)(C) and 5 C.F.R. § 1201.136(b) must be received by the Clerk of the Board on or before January 11, 2024. FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.5	Special_Counsel_ex_rel_McDaniel_CB-1208-23-0006-U-5_Order_on_Stay_Extension_Request.pdf	2023-11-17	null	CB-1208-23-0006-U-5	NP
2,678	https://www.mspb.gov/decisions/nonprecedential/Marker_Jonathan_William_DC-0752-22-0120-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JONATHAN WILLIAM MARKER, Appellant, v. NATIONAL ARCHIVES AND RECORDS ADMIN, Agency.DOCKET NUMBER DC-0752-22-0120-I-1 DATE: November 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jonathan William Marker , Springfield, Virginia, pro se. Stephani L. Abramson , Esquire, College Park, Maryland, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his involuntary resignation appeal for lack of jurisdiction. On petition for review,2 the appellant challenges the administrative judge’s finding that 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 With his petition for review, the appellant filed many supplements. Petition for Review File, Tabs 2-27. The appellant’s supplements are hundreds of pages in length; they contain portions of his equal employment opportunity files, agency documents, and his personal records. Id. It is not the Board’s obligation to pore through the record or he failed to make a nonfrivolous allegation that his working conditions were so intolerable that a reasonable person in his position would have felt compelled to resign, and he claims that the administrative judge ignored certain evidence and made misstatements in the initial 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 the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established 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). to construe and make sense of allegations based on various parts of an extremely voluminous case file. Keefer v. Department of Agriculture , 92 M.S.P.R. 476, ¶ 18, n.2 (2002). We have not considered this evidence because the appellant presented no basis for us to conclude that it is both new and material. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (recognizing that the Board generally will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213 -14 (1980) (recognizing that, pursuant to 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).2 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any4 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s5 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Marker_Jonathan_William_DC-0752-22-0120-I-1_Final_Order.pdf	2023-11-17	JONATHAN WILLIAM MARKER v. NATIONAL ARCHIVES AND RECORDS ADMIN, MSPB Docket No. DC-0752-22-0120-I-1, November 17, 2023	DC-0752-22-0120-I-1	NP
2,679	https://www.mspb.gov/decisions/nonprecedential/Maloney_Peggy_Anne_DC-0752-20-0092-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PEGGY A. MALONEY, Appellant, v. EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION, Agency.DOCKET NUMBER DC-0752-20-0092-I-1 DATE: November 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Peggy A. Maloney , Alexandria, Virginia, pro se. Tanesha Petty , Robin M Fields and Raheemah Abdulaleem , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed without prejudice her appeal of the agency’s action removing her from employment. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2The agency removed the appellant from her position based on a charge of Unprofessional Conduct. Initial Appeal File (IAF), Tab 19 at 18-23, Tab 26 at 4-11. After the appellant filed an appeal with the Board, the administrative judge dismissed the appeal without prejudice to refiling to afford the parties additional time to conduct discovery. IAF, Tab 40, Initial Decision (ID) at 1-3. The administrative judge noted that neither party objected when she proposed such a disposition of the appeal. ID at 2. Accordingly, the administrative judge dismissed the appeal without prejudice for 40 days subject to automatic refiling 36 days after issuance of the initial decision. ID at 2-3. ¶3On petition for review, the appellant asserts that the certificate of service for the initial decision was not attached to the decision, but instead was “uploaded to the [Merit Systems Protection Board] web separately.” Petition for Review (PFR) File, Tab 3 at 5. She also contends that there is no reference or indication as to what documents were “attached” to the certificate and which email addresses were used. Id. Therefore, she contends that the initial decision should be “DISMISS[ED].” Id. at 6. She also raises arguments relating to a separate individual right of action (IRA) appeal she filed, the severance of2 appeals that had been joined, bias by the administrative judge, and an alleged denial of a within -grade increase (WIGI). Id. at 5-31. The agency has not responded to the petition for review. After the close of the record on review, the appellant filed motions for leave to file additional pleadings and evidence.2 PFR File, Tabs 6, 10, 25, 31, 33, 38-39. ¶4An administrative judge has wide discretion to control the proceedings before her, and the dismissal of an appeal without prejudice to refiling is a procedural option committed to her sound discretion. Mojarro v. U.S. Postal Service, 115 M.S.P.R. 433, ¶ 6 (2010). Outstanding discovery is a factor supporting such a dismissal by an administrative judge. Jones v. Department of the Navy, 70 M.S.P.R. 221, 224 (1996); Roth v. Department of the Navy , 46 M.S.P.R. 395, 396 n.3 (1990). The appellant’s arguments regarding the certificate of service relating to the initial decision in this case, her separate IRA appeal, the severance of her appeals, and a denial of a WIGI are not relevant to the issue of whether the administrative judge abused her discretion in dismissing this appeal without prejudice to automatic refiling. Thus, the appellant has provided no basis for disturbing the initial decision, and we otherwise find no abuse of discretion in this regard by the administrative judge. 2 The appellant raises in her motions “objection[s]” and contentions that essentially reiterate the arguments she makes in her petition for review, moves to compel and seeks sanctions in connection with the discovery process, requests to submit new evidence, and asks to incorporate pleadings she filed in other appeals. PFR File, Tabs 6, 10, 25, 31. Finally, she requests that the Board incorporate into the instant appeal all pleadings and evidence in all of her pending Board appeals and requests leave to file various objections. PFR File, Tab 33 at 4-5, Tabs 38-39. Once the record closes, no additional evidence or argument will be accepted unless it is new and material and was not readily available before the record closed. 5 C.F.R. § 1201.114(k). Evidence or argument is “material” if it is of sufficient weight to warrant a different outcome from the initial decision. Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating that, to satisfy the “new and material evidence” criterion for granting a petition for review, the new evidentiary material must be of sufficient weight to warrant an outcome different than that ordered by the presiding official). None of the appellant’s purportedly new evidence and argument concerns the dispositive issue before us—whether the administrative judge erroneously dismissed the instant appeal. Accordingly, we deny the motions. 3 ¶5In making a claim of bias against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators. Thompson v. Department of the Army , 122 M.S.P.R. 372, ¶ 29 (2015). An administrative judge’s conduct during the course of a proceeding warrants a new adjudication only if the administrative judge’s comments or actions evidence a deep-seated favoritism or antagonism that would make fair judgment impossible. Id. The mere fact that an administrative judge has ruled against a party does not establish bias. Id. The appellant’s allegations of bias do not meet this standard under the circumstances of this case. ¶6Accordingly, we deny the appellant’s petition for review and affirm the initial decision dismissing this appeal without prejudice to refiling. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain5 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 6 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.8	Maloney_Peggy_Anne_DC-0752-20-0092-I-1_Final_Order.pdf	2023-11-17	null	DC-0752-20-0092-I-1	NP
2,680	https://www.mspb.gov/decisions/nonprecedential/Maloney_Peggy_A_DC-0752-20-0092-I-2_Final_ Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PEGGY A. MALONEY, Appellant, v. EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION, Agency.DOCKET NUMBER DC-0752-20-0092-I-2 DATE: November 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Peggy A. Maloney , Alexandria, Virginia, pro se. Tanesha Petty and Raheemah Abdulaleem, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed this refiled appeal of her removal because of a pending prior petition for review involving the same removal action. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision. Because the pending prior petition for review involving the same removal action has now been adjudicated by the Board, we FORWARD this case to the regional office for docketing and adjudication on the merits of the removal. BACKGROUND ¶2The appellant filed a Board appeal of her removal. Maloney v. Executive Office of the President, Office of Administration , MSPB Docket No. DC-0752-20-0092-I-1, Initial Appeal File (IAF), Tab 1. In an initial decision dated July 29, 2020, the administrative judge dismissed the appeal without prejudice for 40 days to afford the parties time to complete discovery. IAF, Tab 40. The administrative judge informed the parties that the appeal would be automatically refiled 36 days after issuance of the initial decision. Id. at 2. ¶3On August 21, 2020, the appellant filed a petition for review of that initial decision. Maloney v. Executive Office of the President, Office of Administration , MSPB Docket No. DC-0752-20-0092-I-1, Petition for Review File, Tab 3. On September 4, 2020, the regional office automatically refiled the appeal. Maloney v. Executive Office of the President, Office of Administration ,2 MSPB Docket No. DC-0752-20-0092-I-2, Appeal File (I-2 AF), Tabs 1-2. Because there was both a pending petition for review and a pending refiled appeal involving the same removal action, the administrative judge notified the appellant that, “[w]hile [she] is certainly free to pursue the pending PFR, the instant appeal cannot proceed to adjudication while the PFR is pending.” I-2 AF, Tab 3. Thus, the administrative judge informed the parties that, unless the appellant withdrew her petition for review, it appeared that the refiled appeal should be dismissed. Id. at 1. She afforded the parties an opportunity to object to dismissal of the appeal. Id. at 2. The administrative judge issued a second order requesting that the appellant advise her if she had withdrawn her petition for review so that the instant appeal could proceed. I-2 AF, Tab 18. The administrative judge notified the parties that if no such notice is received, the appeal would be dismissed. Id. at 2. ¶4Although the appellant initially appeared to seek withdrawal of her petition for review, I-2 AF, Tab 20 at 7, she later indicated that she was “unable to make up [her] mind,” and requested an extension of time to make a decision, I-2 AF, Tab 33 at 4. The administrative judge granted an extension and informed the appellant that if she chose to withdraw her petition for review she must so advise the full Board no later than October 5, 2020, and file a copy of that withdrawal in this appeal. I-2 AF, Tab 34. The administrative judge notified the appellant that “[i]f a proper withdrawal is not received by that date, I will dismiss this appeal without prejudice to refiling.” Id. at 2. The appellant ultimately informed the administrative judge that she had decided not to withdraw her petition for review. I-2 AF, Tab 37 at 5. Therefore, the administrative judge issued an initial decision dismissing this appeal because “[a]n appeal cannot be pending in both forums simultaneously,” and rulings on the argument the appellant made to the full Board may impact adjudication of the instant appeal. I-2 AF, Tab 38, Initial Decision (ID) at 2. The administrative judge notified the parties that adjudication of the removal appeal would commence upon issuance of a decision by the full Board on3 the petition for review in Maloney v. Executive Office of the President, Office of Administration, MSPB Docket No. DC-0752-20-0092-I-1. ID at 2-3. The appellant has filed a petition for review, to which the agency has not responded. Petition for Review (PFR) File, Tab 1. ANALYSIS ¶5The appellant asserts on review that she was “never notified in advance . . . that two PFR’s cannot be pending in both forums simultaneously and therefore she should not file two PFRs.” PFR File, Tab 1 at 4-5. She also raises claims of bias by the administrative judge, improper severance of cases that had previously been joined, and discovery, conflict of interest, and certificate of service issues. Id. at 5-10. The appellant further appears to raise contentions related to an individual right of action (IRA) appeal she filed before her removal and an appeal she filed with the Equal Employment Opportunity Commission (EEOC). Id. at 10-13. She attaches to her petition for review email correspondence involving her allegation that the Office of Special Counsel lacks “integrity,” id. at 16-37, and submits a supplement to her petition for review that includes email correspondence involving a coworker’s illness that apparently led to the appellant receiving a letter of counseling, PFR File, Tab 2 at 4, 9-17.2 2 The appellant has filed a motion for leave to file an additional pleading, PFR File, Tab 4, a motion for leave to file additional evidence, PFR File, Tab 10, a motion to incorporate all MSPB dockets, PFR File, Tab 12, and a motion to file various objections, PFR File, Tabs 16-17. She requests that the Board permit her to file evidence regarding an appeal she filed with the EEOC in which she alleges prohibited discrimination. PFR File, Tab 4 at 4. She also requests that the Board permit her to file pleadings she filed in two other appeals pending with the Board. PFR File, Tab 10 at 5- 7. Finally, she requests that the Board incorporate into the instant appeal all pleadings and evidence in all of her pending Board appeals and requests leave to file various objections regarding, in part, orders issued in her other matters as well as alleged errors in her other matters. PFR File, Tab 12 at 4-5, Tabs 16-17. Because we are forwarding this appeal for procedural reasons, we decline to rule on the appellant’s motions. Upon docketing of the forwarded case, she may request leave to submit any new arguments or allegations of discrimination or other matters, and may seek admission of relevant evidence, consistent with the administrative judge’s orders.4 ¶6Contrary to the appellant’s assertion on review, the issue addressed by the administrative judge was not that the appellant had filed two petitions for review. Rather, the administrative judge correctly dismissed this appeal upon finding that the appellant had both a pending appeal in the regional office and a pending petition for review before the full Board regarding the same removal action. ID at 2-3; see Wheeler v. Department of Defense , 113 M.S.P.R. 519, ¶ 7 (2010); Hinton-Morgan v. Department of the Army , 75 M.S.P.R. 382, 399 (1997) (“We find that the administrative judge reasonably determined that the adjudication of the appellant’s adverse action demotion appeal should not move forward pending the Board’s resolution of a petition for review involving the same issues as those involved in the appeal before her.”). Thus, the appellant’s contentions regarding the filing of two petitions for review does not show error in the initial decision. ¶7In making a claim of bias against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators. Thompson v. Department of the Army , 122 M.S.P.R. 372, ¶ 29 (2015). An administrative judge’s conduct during the course of a proceeding warrants a new adjudication only if the administrative judge’s comments or actions evidence a deep-seated favoritism or antagonism that would make fair judgment impossible. Id. The mere fact that an administrative judge has ruled against a party does not establish bias. Id. The appellant’s allegations of bias do not meet this standard under the circumstances of this case. ¶8We further find that the appellant’s allegations regarding the severance of her cases that had previously been joined, discovery, an alleged conflict of interest, certificate of service issues, and matters relating to her IRA and equal employment opportunity appeals are not relevant to the issue of whether the administrative judge properly dismissed this appeal. See As’Salaam v. U.S. Postal Service, 85 M.S.P.R. 76, ¶ 15 (2000) (holding that the appellant’s arguments regarding his medical limitations not related to a compensable injury5 were not relevant to his restoration appeal). She has similarly not shown that the email correspondence she submits on review is relevant to that issue. ¶9Accordingly, now that the Board has issued a final decision adjudicating the appellant’s petition for review of the initial decision in her initial appeal of her removal, see Maloney v. Executive Office of the President, Office of Administration, MSPB Docket No. DC-0752-0092-I-1, Final Order (Nov. 17, 2023), we deem it appropriate to forward this appeal for adjudication and a decision on the merits without requiring the appellant to refile her appeal, see Jundt v. Department of Veterans Affairs , 113 M.S.P.R. 688, ¶¶ 7-8 (2010); Wheeler, 113 M.S.P.R. 519, ¶ 7. ORDER ¶10We forward this case to the Washington Regional Office for adjudication on the merits of the appellant’s removal. 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.6 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you7 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 8 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 9 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 10 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.11	Maloney_Peggy_A_DC-0752-20-0092-I-2_Final_ Order.pdf	2023-11-17	null	DC-0752-20-0092-I-2	NP
2,681	https://www.mspb.gov/decisions/nonprecedential/Lee_George_DC-0752-22-0152-I-1_Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD GEORGE LEE, Appellant, v. DEPARTMENT OF COMMERCE, Agency.DOCKET NUMBER DC-0752-22-0152-I-1 DATE: November 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Christopher Landrigan , Esquire, and Christine Mundia , Esquire, Washington, D.C., for the appellant. Adam Chandler , Esquire, 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 sustained his removal from Federal service based on charges of failure to follow procedures, failure to properly handle employee badge and credentials, misuse of a government owned vehicle, and mismanagement. On petition for review, the appellant makes the following arguments: he managed his division as best as he 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). could despite limited resources; the agency “scapegoated” by removing him due to negative publicity; the administrative judge erred in sustaining the charges; and the removal penalty is unreasonable, and the administrative judge and the deciding official improperly failed to consider relevant Douglas2 factors in deciding to remove him. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. ¶2Regarding the appellant’s argument that his positive performance appraisals “rebut” the mismanagement charge based on the Board’s decision in Moretz v. Department of the Treasury , 19 M.S.P.R. 376, 378 (1984), there is no merit to his claim. Petition for Review (PFR) File, Tab 1 at 18-19. Specifically, the appellant argues on review that pursuant to Moretz, when an agency policy or directive that an appellant is charged with failing to follow is “equivalent to” the standards of his position, a successful performance rating “rebuts” the charge. PFR File, Tab 1 at 18. The appellant argues that because his performance appraisals during the period that he was charged with mismanagement were all positive, his positive appraisals rebut all of the specifications of the mismanagement charge. PFR File, Tab 1 at 18-19, Tab 4 at 4-8. 2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board articulated a nonexhaustive list of 12 relevant factors to be considered in determining the appropriateness of an imposed penalty in adverse action appeals.2 ¶3However, as the agency correctly observes, in Valles v. Department of State , 17 F.4th 149, 151 n.2 (Fed. Cir. 2021), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) rejected a similar argument advanced by the appellant in that case. PFR File, Tab 3 at 16-19. The appellant in Valles was removed based on a charge of failure to follow instructions that included acts of misconduct related to his performance of his job duties, even though he had received a fully successful performance appraisal during the period he was charged with the misconduct. Valles, 17 F.4th at 151. On appeal to the Federal Circuit, he argued that the Board erred by disregarding his fully successful performance appraisal, reasoning that the positive evaluation “rebutted” the charge, citing the Board’s opinion in Moretz. Id. at 151 & n.2. The Federal Circuit rejected the appellant’s argument, distinguishing Moretz. As the Federal Circuit noted, the appellant in Moretz was charged with failing to meet the standards of his position. Valles, 17 F.4th at 151 n.2; Moretz, 19 M.S.P.R. at 378. In supporting this charge, the agency in Moretz relied on the appellant’s performance evaluations to establish below standard performance. Valles, 17 F.4th at 151 n.2. In sustaining the administrative judge’s finding reversing the relevant specifications of that charge, the Board held in Moretz that the appellant’s “less than fully satisfactory, but not entirely unsatisfactory” performance level could not sustain the charge of failing to meet the standards of the position. Valles, 17 F.4th at 151 n.2; Moretz, 19 M.S.P.R. at 378. ¶4However, in Valles’s case, the deciding official had not relied on the appellant’s evaluations to establish unsatisfactory performance. Valles, 17 F.4th at 151 n.2. Additionally, although the court acknowledged that the existence of a positive performance appraisal may prove relevant to a misconduct charge and issues of misconduct and performance may overlap, the court nevertheless made clear that it was not suggesting that the existence of a fully successful performance evaluation “bars discipline for matters covered during the evaluation [period].” Id. at 152. Instead, the court held only that the evaluation must be3 considered in reaching the decision. Id. Based on the facts before it, the court concluded that the Board’s failure to consider the appellant’s positive evaluations in assessing his misconduct did not constitute reversible error, noting that the deciding official did consider the appellant’s performance evaluations in a thorough Douglas factor analysis and that consideration of the evaluations was not likely to alter the Board’s conclusion that the penalty was reasonable. Id. at 153. ¶5As in Valles, the appellant’s performance appraisals during the period from 2016 through 2019—the period during which most of the misconduct underlying the mismanagement charge occurred—were generally positive. Initial Appeal File (IAF), Tab 31 at 25-68; see Valles, 17 F.4th at 151. However, also as in Valles, here, the deciding official did not specifically rely on the appellant’s evaluations to establish unsatisfactory performance. Valles, 17 F.4th at 151 n.2; IAF, Tab 10 at 6-13. The deciding official in the instant case also considered the relevant Douglas factors, including mitigating factors such as the appellant’s significant length of service, his lack of prior disciplinary action, and, notably, his high-performance ratings. IAF, Tab 10 at 10. ¶6Unlike in Valles, however, the administrative judge here specifically considered the appellant’s performance appraisals, as well as his argument that the positive information contained in the appraisals rebutted the agency’s claims that he engaged in several of the instances of misconduct that made up the mismanagement charge. For example, the administrative judge acknowledged the appellant’s undisputed assertion that his performance appraisals indicated that his department closed a certain number of cases each year, which related to specification 2 of the mismanagement charge. IAF, Tab 42, Initial Decision (ID) at 16. She nevertheless credited the testimony of agency Office of the Inspector General officials stating that their audit of the pending cases in the division the appellant oversaw revealed that a significant number of cases remained open for4 extended periods of time, without activity, while the division was under the appellant’s supervision. ID at 15-16. ¶7In another instance, the administrative judge acknowledged the appellant’s argument that his fiscal year (FY) 2016 through FY 2020 performance appraisals reflected that he had conducted between 6 and 100 hours of training annually, which related to specification 6 of the mismanagement charge alleging that the appellant had failed to establish an appropriate training program for agents in his division. ID at 23; IAF, Tab 10 at 9. She nevertheless concluded that, despite this information in the appellant’s performance reviews, he had not produced any evidence rebutting the testimony by two agency employees stating that they were never given any Basic Agent Training, nor had the appellant provided any evidence that the courses were ever offered, such as lists of attendees, course materials, or the like. ID at 23. Accordingly, we conclude that the deciding official and the administrative judge properly considered the appellant’s positive performance appraisals to the extent that they were relevant to the charges of misconduct, and there is no merit to the appellant’s argument that, pursuant to Moretz, his positive appraisals “rebut” the mismanagement charge. ¶8The appellant also appears to have alleged that he was subjected to a disparate penalty in his prehearing submission, but the administrative judge did not make any findings in the initial decision regarding this potential claim. IAF, Tab 31 at 20-21; ID at 1-31. The appellant reargues on review that he was “scapegoated,” asserts that all of the other agents in his division were protected from reduction in force procedures when the agency disbanded the division, and notes that “none of [his] managers throughout this period received any discipline apart from one supervisor receiving a mere reprimand.” PFR File, Tab 1 at 17. Thus, it appears that the appellant may be attempting to reassert that he was subjected to a disparate penalty on review. ¶9However, to the extent the administrative judge erred in failing to adjudicate this claim, any such error would not warrant reaching a different5 outcome in this case. 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.” Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 10 (quoting 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 who engaged in the same or similar offenses differently. Id., ¶¶ 14-17. Additionally, although the universe of potential comparators will vary from case to case, it should be limited to those employees whose misconduct or other circumstances closely resemble those of the appellant. Id., ¶ 13. Aside from asserting that he was “scapegoated” and generally stating that other agents in his division were not subjected to discipline in connection with the Office of the Inspector General investigation that led to his removal, the appellant has not identified any similarly situated comparator employees who were charged with the same or similar instances of misconduct, and so he has necessarily failed to show that the agency knowingly and unjustifiably treated employees who engaged in the same or similar offenses differently. See id., ¶¶ 14, 17. 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 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.6 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file8 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 9 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be 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	Lee_George_DC-0752-22-0152-I-1_Final Order.pdf	2023-11-17	GEORGE LEE v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0752-22-0152-I-1, November 17, 2023	DC-0752-22-0152-I-1	NP
2,682	https://www.mspb.gov/decisions/nonprecedential/Vela_Hector_DA-0842-17-0458-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD HECTOR VELA, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER DA-0842-17-0458-I-1 DATE: November 16, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Hector Vela , Grand Prairie, Texas, pro se. Ted Booth , Esquire, 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 affirmed the agency’s determination that he was not eligible for enhanced Federal Employees’ Retirement System law enforcement retirement credit. Generally, we grant petitions such as this one only in the following circumstances: the initial 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).2 After fully considering the filings in this appeal, we conclude that the petitioner has not established 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 2 On review, the appellant attaches a copy of his original position description, Petition for Review (PFR) File, Tab 1 at 15 20, which was in the record below, Initial Appeal File, Tab 18 at 35-40. Evidence submitted on review that was in the record below is not new. Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980). The appellant also submits appendices that simply reference various handbooks, regulations, and Government websites. PFR File, Tab 1 at 10 14. The Board will normally only consider evidence submitted for the first time on review upon a showing that it was previously unavailable despite the petitioner’s due diligence. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d). There has been no such showing here, but we have nevertheless considered the appellant’s evidence and find that it does not warrant a different outcome. 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	Vela_Hector_DA-0842-17-0458-I-1_Final_Order.pdf	2023-11-16	HECTOR VELA v. DEPARTMENT OF JUSTICE, MSPB Docket No. DA-0842-17-0458-I-1, November 16, 2023	DA-0842-17-0458-I-1	NP
2,683	https://www.mspb.gov/decisions/nonprecedential/Kobey.Mike_DA-844E-22-0057-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MIKE KOBEY, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DA-844E-22-0057-I-1 DATE: November 16, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mike Kobey , Nacogdoches, Texas, pro se. James Mercier , 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 affirmed the reconsideration decision of the Office of Personnel Management (OPM) denying his request for disability retirement benefits under the Federal Employees’ Retirement System. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2On review, the appellant reasserts his argument that he is an annuitant entitled to restoration of disability retirement benefits based on OPM’s April 19, 2013 approval of his application for disability retirement.2 Petition for Review (PFR) File, Tab 1 at 4. He disputes the administrative judge’s finding that the February 28, 2017 decision of the Equal Employment Opportunity Commission (EEOC), cancelling his 2012 removal from Federal service and ordering his former employing agency, the Department of the Interior (DOI), to reinstate him, retroactive to the date of his removal, cancelled his disability retirement annuity. Id. He attaches several documents to his petition for review, including documents related to OPM’s approval of his disability retirement application in 2013 and communications with DOI regarding his annuity and Federal health benefits. Id. at 7-14. ¶3We agree with the administrative judge that the appellant is not entitled to reinstatement of his 2013 disability retirement annuity because it was cancelled as a result of the EEOC’s order that DOI reinstate him to Federal service, retroactive 2 The appellant states on review that he is not challenging the portion of OPM’s decision denying his July 29, 2020 application for disability retirement benefits. PFR File, Tab 1 at 4.2 to the date of his removal for medical inability. Initial Appeal File (IAF), Tab 25, Initial Decision (ID) at 5-6. We do not agree with the appellant’s assertion that OPM may only cancel an annuity if the appellant makes such a request. PFR File, Tab 1 at 4-5. OPM’s regulations provide that it “will cancel any disability retirement when a final decision of an administrative authority or court reverses the removal action and orders the reinstatement of an employee to the agency rolls.” 5 C.F.R. § 844.202(c)(2). Further, “OPM may rescind a decision to allow an application for disability retirement at any time if OPM determines that the original decision was erroneous due to fraud, misstatement of fact, or upon the acquisition of additional medical or other documentation. ” 5 C.F.R. § 844.203(c) (2). Accordingly, we find that OPM correctly rescinded or cancelled the appellant’s disability retirement annuity.3 The regulations cited in the appellant’s petition for review, which refer to annuitants, are therefore inapplicable because the appellant is no longer an annuitant. PFR File, Tab 1 at 4-5. We further note that the appellant’s request for a disability retirement annuity in addition to the relief ordered by the EEOC, which returned him to the status quo ante, is contrary to the well-established principle that status quo ante relief does not entitle an appellant to be placed in a better position than they would have enjoyed had the personnel action not occurred. IAF, Tab 7 at 106, 108; see Gingery v. Department of Defense , 121 M.S.P.R. 423, ¶ 8 (2014). ¶4Regarding the documents submitted by the appellant on review, PFR File, Tab 1 at 7-14, he has not alleged that they were unavailable to him prior to the close of the record before the administrative judge, and thus, we do not consider them. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980) (holding that the Board generally will not consider evidence submitted for the 3 The appellant’s assertion that he did not accept rescission of his disability annuity misses the mark. PFR File, Tab 1 at 4. The appropriate inquiry is whether the appellant refused the EEOC’s order of reinstatement. The administrative judge correctly found that he did not and, in fact, he returned to work at the agency for several years after he was reinstated. ID at 2, 5. 3 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); 5 C.F.R. § 1201.115. In any case, the documents do not warrant a different result. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (holding that the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). Based on the foregoing, we deny the petition for review and affirm the initial decision. NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,5 and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 6 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.8	Kobey.Mike_DA-844E-22-0057-I-1_Final_Order.pdf	2023-11-16	MIKE KOBEY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-844E-22-0057-I-1, November 16, 2023	DA-844E-22-0057-I-1	NP
2,684	https://www.mspb.gov/decisions/nonprecedential/Monroe_Willie_DC-0752-21-0492-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WILLIE MONROE, JR., Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER DC-0752-21-0492-I-1 DATE: November 16, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Willie Monroe, Jr. , North Chesterfield, Virginia, pro se. Roderick Eves , Saint Louis, Missouri, 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 the appeal of his termination for lack of jurisdiction because he failed to meet the statutory definition of an employee under 5 U.S.C. § 7511(a)(1). On petition for review, the appellant argues that he should not have been subjected to a 90-day probationary period per the terms contained in a memorandum of understanding between the agency and the union. Generally, we grant petitions 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).2 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their 2 In response to the agency’s opposition to his petition for review, the appellant stated, in part, that the union had resolved his grievance pertaining to his termination and attached a document entitled Step 3 Settlement Agreement. Petition for Review File, Tab 4 at 3, 5. The settlement agreement does not address this Board appeal, nor does it include a general waiver of the appellant’s appeal rights. Id. at 5. Thus, this agreement does not impact the conclusion that the Board lacks jurisdiction over this appeal. Furthermore, the appellant does not request, and there is no basis for, the Board to enter this settlement agreement into the record. 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	Monroe_Willie_DC-0752-21-0492-I-1_Final_Order.pdf	2023-11-16	null	DC-0752-21-0492-I-1	NP
2,685	https://www.mspb.gov/decisions/nonprecedential/Ryba_Christine_PH-3443-18-0377-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHRISTINE A. RYBA, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER PH-3443-18-0377-I-1 DATE: November 16, 2023 THIS ORDER IS NONPRECEDENTIAL1 Christine A. Ryba , Moorestown, New Jersey, pro se. Jessica N. Cone , Philadelphia, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction her appeal challenging the agency’s denial of her request for retirement under the Voluntary Early Retirement Authority (VERA). For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the finding of the initial decision that the Board lacks 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). jurisdiction over this appeal, and REMAND the case to the Northeastern Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2The appellant was employed by the U.S. Army Corps of Engineers as a GS-13 Project Manager in Philadelphia, Pennsylvania. Initial Appeal File (IAF), Tab 1 at 1. In a memorandum dated April 12, 2018, the Deputy District Commander, Philadelphia District, inquired amongst employees within the district as to their interest and availability for VERA and/or Voluntary Separation Incentive Pay (VSIP). Id. at 7-9. The Deputy District Commander stated that participation in the VERA/VSIP program was not an employee entitlement and an expression of interest in the program did not guarantee acceptance. Id. at 8. He further stated that he would determine the positions applicable to the allocations and the agency’s final determination would be “based on mission and organizational needs.” Id. The appellant asserted that she submitted a VERA application. PFR File, Tab 1 at 5. On or around May 3, 2018, she claims that an individual identified as a senior civilian informed her that her VERA application had been denied based on purported “workload concerns.” IAF, Tab 1 at 5. ¶3The appellant appealed the agency’s decision to the Board and did not request a hearing. Id. at 2, 5. The administrative judge advised the appellant that the Board may not have jurisdiction over the appeal and of certain limited exceptions to the general rule that the Board may not address matters over which it otherwise lacks jurisdiction. IAF, Tab 2 at 2-3. The administrative judge ordered the appellant to file evidence and argument showing that her appeal is within the Board’s jurisdiction, id., to which the appellant did not respond. The agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 4 at 4. Based on the written record, the administrative judge dismissed the appeal, finding that the Board lacked jurisdiction to hear appeals from voluntary agency programs, such as the VERA, and the appellant had identified no section under2 the Civil Service Retirement System (CSRS) or Federal Employees Retirement System (FERS) that entitles her to participate in the VERA program. IAF, Tab 5, Initial Decision (ID) at 3. ¶4The appellant has filed a petition for review. PFR File, Tab 1. The agency has filed a response. PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW ¶5The appellant argues that a voluntary early retirement denial may be appealable to the Board as an administrative action or order affecting her rights or interests under the CSRS or FERS.2 Petition for Review (PFR) File, Tab 1 at 2; see 5 U.S.C. §§ 8347(d)(1), 8461(e)(1). We agree. See Adams v. Department of Defense, 688 F.3d 1330, 1335–36 (Fed. Cir. 2012) (finding that the appeal of an adverse VERA ruling is within the jurisdiction of the Board); Dawson v. Department of Agriculture , 121 M.S.P.R. 495, ¶ 16 (2014) (same). ¶6Ordinarily, such an appeal is from a decision from the Office of Personnel Management (OPM) or an agency that received delegated authority from OPM.3 Dawson, 121 M.S.P.R. 495, ¶¶ 16-17. Here, however, it appears that the agency could approve or deny early retirement applications pursuant to 5 U.S.C. § 9902(f), under which the Secretary of Defense has statutory authority to establish a VERA to be administered according to regulations established by the Secretary. See Department of Defense Instruction (DoDI) No. 1400.25, Vol. 1702, Encl. 3, ¶ 4 (June 13, 2008), https://www.esd.whs.mil/Portals/54/ Documents/DD/issuances/140025/1400.25-V1702.pdf . 2 To the extent that the appellant intended to seek review of an Office of Personnel Management (OPM) regulation, she may file a separate appeal in accordance with the requirements set forth at 5 C.F.R. part 1203. 3 Generally, an agency must request a VERA from OPM and provide specific information in support of its request. 5 C.F.R. §§ 831.114, 842.213. Once OPM approves a VERA, an employee who falls within the scope of the VERA’s coverage and who meets the age, service, and other requirements prescribed by statute and OPM regulation is entitled to an immediate annuity. 5 U.S.C. §§ 8336(d), 8414(b); 5 C.F.R. §§ 831.114(k), 842.213(k). 3 ¶7Under 5 U.S.C. § 9902(f)(4), “[a]n employee who is at least 50 years of age and has completed 20 years of service, or has at least 25 years of service, may . . . apply and be retired from the Department of Defense and receive benefits in accordance with chapter 83 or 84 . . . . ” DoDI No. 1400.25 provides that a Department of Defense installation using VERA has discretion in “determin[ing] and publiciz[ing] the maximum number of locally authorized VERA approvals and the anticipated multiple windows of opportunity required.” ¶8The appellant asserts that there was no basis for the agency’s denial of her request for retirement under the VERA, given her purported eligibility, her supervisor’s support, and the nonexistent competition. PFR File, Tab 1 at 4-8. She further asserts that the agency’s denial was not in accord with the procedural requirements set forth in DoDI No. 1400.25. Id. at 3-5. Such a denial would significantly affect her rights or interests under 5 U.S.C. §§ 8347(d)(1), 8461(e)(1), and thus may be an appealable “administrative action” within the Board’s jurisdiction. The record does not, however, include any written application by the appellant or written denial by the agency. ¶9Thus, the record is not sufficiently developed for the Board to determine whether the appellant has established jurisdiction over this appeal. Moreover, the appellant did not receive explicit information on what is required to establish an appealable jurisdictional issue in this type of case. See Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985). ¶10On remand, the administrative judge shall notify the appellant of how to establish Board jurisdiction over an appeal seeking retirement benefits under the VERA and afford the parties an opportunity to submit evidence and argument on the issue. See Adams, 688 F.3d at 1335; Dawson, 121 M.S.P.R. 495, ¶ 16. Should the appellant establish that her appeal is within the Board’s jurisdiction, the administrative judge shall adjudicate the merits of the appellant’s appeal, as well as her harmful error and prohibited personnel practice claims. See PFR File, Tab 1 at 5.4 ¶11We note that the appellant failed to respond to the administrative judge’s jurisdictional order in the proceedings below. PFR File, Tab 1 at 1. The appellant attributes her failure to respond to the fact that she did not receive any case-related filings, with the exception of the initial decision, which was mailed to her home address on August 22, 2018. Id. She observes that, when she contacted the Board’s regional office on August 23, 2018, an unidentified employee informed her that all case-related filings had been sent to the email address that she provided in her initial appeal. Id. at 1-2. ¶12A review of the record shows that the appellant may not have been alerted to case-related filings because it appears she misspelled her email address in her initial appeal. IAF, Tab 1 at 1 (showing an email domain of “usace.amy.mil” rather than “usace.army.mil”). Although the appellant may have been responsible for this error, we nevertheless review the arguments she raises on review because they implicate the Board’s jurisdiction, an issue that is always before the Board. See Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404, ¶ 19 n.12 (2016). ORDER ¶13For the reasons discussed above, we remand this case to the Northeastern Regional Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.5	Ryba_Christine_PH-3443-18-0377-I-1_Remand_Order.pdf	2023-11-16	CHRISTINE A. RYBA v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-3443-18-0377-I-1, November 16, 2023	PH-3443-18-0377-I-1	NP
2,686	https://www.mspb.gov/decisions/nonprecedential/Brown_Alphonso_DC-0831-18-0238-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ALPHONSO BROWN, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DC-0831-18-0238-I-1 DATE: November 16, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Alphonso R. Brown , Stafford, Virginia, pro se. Carla Robinson , 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 affirmed the reconsideration decision of the Office of Personnel Management (OPM) regarding an overpayment. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to address the appellant’s Federal Erroneous Retirement Coverage Corrections Act (FERCCA) claim, we AFFIRM the initial decision. BACKGROUND ¶2The appellant was a District of Columbia (DC) employee from June 6, 1976, to December 2, 1988, covered by the Civil Service Retirement System (CSRS). Initial Appeal File (IAF), Tab 8 at 9, 48. Effective December 4, 1988, he was hired as a Federal employee by the Environmental Protection Agency (EPA). Id. at 9, 48, 60. The EPA originally designated the appellant as belonging in CSRS Offset. IAF, Tab 1 at 144. However, in May 2010, it advised the appellant that this designation was in error because when he was hired by the EPA he went from one CSRS covered position to another. Id. The EPA informed him that he was entitled to corrective action under FERCCA. Id. It placed the appellant in CSRS and corrected his retirement records. Id. at 144, 148. ¶3The appellant retired from the EPA effective December 2011. IAF, Tab 8 at 45. In processing the appellant’s retirement paperwork, the EPA treated both his DC and Federal service as CSRS-covered. Id. at 48. In May 2012, OPM advised the appellant, who was then 59 years old, that his retirement annuity might be “subject to an offset” for Social Security benefits beginning when he2 turned 62 years of age. Id. at 21. Approximately 2 years later, OPM alerted the EPA to what it believed was a coverage error. Id. at 20. According to OPM, the EPA should have placed the appellant in CSRS Offset rather than CSRS. Id. ¶4In September 2017, OPM advised the appellant that it was reducing his monthly annuity payments to offset for Social Security benefits, and also assessing an overpayment due to its failure to begin the offset when the appellant turned age 62. Id. at 12. The appellant requested reconsideration, disagreeing with his placement in CSRS Offset, and asserting that he had not applied for Social Security, which he intended to delay until age 66. Id. at 34-36. OPM issued a reconsideration decision in December 2017, denying the appellant’s request. Id. at 7-11. In pertinent part, it found that the appellant belonged in CSRS Offset upon his appointment to the Federal Government because that employment began after 1983, and therefore he was “covered by Social Security.” Id. at 9-10. The appellant asserted below, and OPM does not dispute, that its reconsideration decision was the first notification he received that his placement in CSRS was in error. IAF, Tab 6 at 5. ¶5The appellant filed the instant appeal, arguing that he does not owe an overpayment because his placement in CSRS Offset was incorrect. IAF, Tab 1 at 8, Tab 6 at 4. He also requested a waiver of the overpayment. IAF, Tab 6 at 6, Tab 10 at 5-6. The administrative judge issued an initial decision in which he affirmed OPM’s determination that the appellant owed an overpayment. IAF, Tab 14, Initial Decision (ID) at 3. He also concluded that although the appellant was not at fault for the overpayment, he was not entitled to a waiver. ID at 3-5. ¶6The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. He argues that the EPA and OPM are to blame for the creation of the overpayment. PFR File, Tab 1 at 4 -6. He also argues that he is entitled to a financial hardship waiver of the overpayment. Id. at 6. OPM has not responded to the petition for review. The Acting Clerk of the Board issued an order to OPM to provide evidence and argument supporting its conclusion that the appellant3 belongs in CSRS Offset, to which OPM has responded. PFR File, Tab 3 at 3, Tab 5. DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge erred in failing to address the appellant’s claim that he belonged in Civil Service Retirement System (CSRS). ¶7The administrative judge did not address the appellant’s arguments below that he belonged in CSRS, not CSRS Offset. IAF, Tab 1 at 8, Tab 6 at 4. We modify the initial decision to address this claim. Although the appellant does not re-raise it on review, he questions the handling of the EPA’s error in placing him in CSRS and the EPA and OPM’s failure to notify him of his placement in CSRS Offset until September 2017. PFR File, Tab 1 at 4-6. ¶8FERCCA, Pub. L. No. 106-265, Title II, 114 Stat. 770 (2000) (codified at 5 U.S.C. 8331 note), addresses the problems created when employees are in the wrong retirement plan for an extended period. Archer v. Office of Personnel Management, 120 M.S.P.R. 68, ¶ 6 (2013). An employee may seek relief under FERCCA if he experienced a qualifying retirement coverage error. Id. A “qualifying retirement coverage error” is “an erroneous decision by an employee or agent of the Government as to whether Government service is CSRS covered, CSRS Offset covered, FERS covered, or Social Security -Only covered that remained in effect for at least 3 years of service after December 31, 1986.” Id. (quoting 5 C.F.R. § 839.102 (defining this term for purposes of the regulations implementing FERCCA)). An employee who has been the subject of a qualifying retirement coverage error under FERCCA may be entitled to various forms of relief, including a choice of retirement plans. Id. ¶9An individual subject to a decision implicating FERCCA has the right to appeal to the Board. 5 U.S.C. §§ 8347(d)(1), 8461(e)(1); 5 C.F.R. §§ 839.1301(a), 839.1302(a); see Wible v. Department of the Army , 120 M.S.P.R. 333, ¶¶ 2, 7-8 (2013) (finding that the Board has jurisdiction to review whether an4 agency correctly determined that a retirement coverage error was not covered by FERCCA even though it appeared that the error lasted less than 3 years). OPM’s determination that the EPA erred in placing the appellant in CSRS is such a decision. IAF, Tab 8 at 9-10. Thus, the administrative judge should have made a determination as to whether the appellant belonged in CSRS or CSRS Offset. Here, the alleged error in the appellant’s retirement coverage lasted for more than 3 years, between his Federal appointment in 1988 and his retirement in 2011. We agree with OPM that the appellant belongs in CSRS Offset. ¶10The appellant’s DC service was covered by CSRS. IAF, Tab 8 at 48. While he was still employed by the DC Government, in June 1986, President Ronald Reagan signed the Federal Employees’ Retirement System Act of 1986 (FERSA) into law. Pub. L. No. 99-335, 100 Stat. 514 (codified, as amended, primarily at 5 U.S.C. chapter 84). FERSA established a new retirement system, the Federal Employees’ Retirement System (FERS). See 5 U.S.C. § 8402(a) (explaining that chapter 84 of Title 5 comprises the FERS provisions). The definition of an employee subject to FERS does not include “an individual first employed by the government of the District of Columbia before October 1, 1987,” like the appellant. IAF, Tab 8 at 48; 5 U.S.C. §§ 8331(1)(G), 8401(11); see S. Rep. No. 99-166, at 40 (1985) (Comm.) (reflecting that the exclusion of DC employees from FERS was intentional). Rather, such an individual is an employee for purposes of CSRS. 5 U.S.C. § 8331(1)(G). ¶11Federal employees whose service is subject to deductions for coverage under both CSRS and the Social Security Old Age, and Survivors and Disability Insurance program (OASDI) belong in CSRS Offset. Taxera v. Office of Personnel Management , 95 M.S.P.R. 97, ¶ 2 (2003); 5 C.F.R. § 839.102. Thus, if the appellant’s employment with the EPA was subject to OASDI, he belongs in CSRS Offset. ¶12The appellant became a Federal employee with the EPA on December 4, 1988. IAF, Tab 8 at 48. Had he begun Federal employment earlier, he may have5 been continued to be exempt from OASDI during his Federal employment with the EPA. 42 U.S.C. 410(a)(5) (excepting from the definition of employment subject to OASDI continued service by certain Federal employees previously covered by CSRS); 20 C.F.R. § 404.1018(a)(1) (same). However, this exception is only available to individuals who worked for the United States or one of its instrumentalities prior to December 31, 1983. 20 U.S.C. § 410(a)(5)(B)(i); 20 C.F.R. § 404.1018(a)(1)(i). “Instrumentality” is not defined for purposes of the statute. ¶13Although “instrumentality” is not defined, the statute defining employment for purposes of OASDI separately addresses exemptions for certain DC employees, including those covered by CSRS. 42 U.S.C. § 410(a)(7)(D). Thus, if the appellant had continued with his DC employment, he would have remained in CSRS without an offset. The fact that the same statute addresses DC employment while separately addressing employment with the United States or its instrumentalities indicates to us that Congress viewed those two types of employment to be distinct. 42 U.S.C. § 410(a)(5), (7)(D); see Brodsky v. Office of Personnel Management , 108 M.S.P.R. 228, ¶ 20 (2008) (inferring from the use of two different words in the same act that the terms are intended to have different meanings). Therefore, we conclude that Congress did not view DC employment as equivalent to employment for the United States or its instrumentalities, and former DC employees entering Federal service for the first time after December 31, 1983, are not exempt from OASDI. Because the appellant’s Federal service was not exempted from OASDI, OPM properly determined that he belongs in CSRS Offset. 5 U.S.C. § 410(a)(5); see Taxera, 95 M.S.P.R. 97, ¶ 2; 5 C.F.R. § 839.102. ¶14Both below and on review, OPM relied on its CSRS and FERS Handbook for Personnel and Payroll Offices (Handbook) to argue that the appellant’s retirement coverage for his EPA employment is CSRS Offset. IAF, Tab 8 at 23; PFR File, Tab 5 at 6. In particular, the Handbook states that an individual with6 5 years of CSRS creditable DC service is covered by CSRS Offset when he is first hired by the Federal Government. IAF, Tab 8 at 23 (Handbook, § 12A4.1-1(H)). Although we do not find it appropriate to defer to the Handbook, we do find that it lends additional support to our conclusions here. See Roman v. Central Intelligence Agency , 297 F.3d 1363, 1368-69 (Fed. Cir. 2002) (finding that the Handbook is not entitled to the same weight as formal regulations); Hatch v. Office of Personnel Management , 97 M.S.P.R. 669, ¶¶ 15-16 (2004) (finding that an OPM letter was not entitled to the same deference as a regulations adopted after public notice and comment, but was entitled to deference to the extent it was persuasive) (citations omitted), recons. denied, 100 M.S.P.R. 204 (2005). Thus, we agree with OPM that the appellant belongs in CSRS Offset. In the case of an employee, like the appellant, who was erroneously placed under CSRS, but who should have been placed under CSRS Offset, the correction of such a retirement coverage error is mandatory.2 FERCCA, 114 Stat. 770, 779 § 2142; Nasdahl v. Department of Veterans Affairs , 119 M.S.P.R. 283, ¶¶ 4, 8 (2013); see 5 C.F.R. § 839.701 (providing that under both CSRS Full and CSRS Offset, the employee may not elect their retirement coverage but rather must be placed in the correct plan). ¶15OPM properly corrected the EPA’s May 2010 error by placing the appellant in CSRS Offset in 2014. IAF, Tab 8 at 20. Absent a retirement coverage error, we are unable to consider the appellant’s claims regarding the EPA and OPM’s delay in informing him of the error. See 5 C.F.R. § 839.1302(a) (limiting the 2 The appellant alleges that OPM violated his due process rights by failing to communicate with him regarding the correction of his placement in CSRS Offset. PFR File, Tab 1 at 5; IAF, Tab 10 at 5. However, he admits that OPM refunded the amounts it originally collected. PFR File, Tab 1 at 5. Thus, we discern no basis to conclude that he was denied his due process rights of notice and an opportunity to respond before being required to repay the overpaid funds. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542, 546-48 (1985) (“The essential requirements of due process . . . are notice and an opportunity to respond” prior to being deprived of a “constitutionally protected property interest.”).7 Board’s FERCCA jurisdiction to a decision affecting an individual’s retirement coverage “rights and interests”). The appellant is not entitled to a waiver of his overpayment. ¶16The parties do not dispute on review the administrative judge’s finding that the appellant received an overpayment. ID at 3. We discern no basis to disturb that finding here. The administrative judge also determined that the appellant was not entitled to waiver of the overpayment. ID at 3-5. We agree. ¶17An appellant bears the burden of proving he is entitled to a waiver of an overpayment by substantial evidence. Fearon v. Office of Personnel Management, 109 M.S.P.R. 606, ¶ 5 (2008); 5 C.F.R. § 831.1407(b). Waiver of recovery of an overpayment may be granted when the annuitant is without fault and recovery would be against equity and good conscience. 5 U.S.C. § 8346(b); Fearon, 109 M.S.P.R. 606, ¶ 5; 5 C.F.R. § 831.1401. Generally, recovery is against equity and good conscience when it would cause financial hardship, the annuitant can show that because of the overpayment he relinquished a valuable right or changed positions for the worse, or recovery could be unconscionable under the circumstances. Fearon, 109 M.S.P.R. 606, ¶ 5; 5 C.F.R. § 831.1403. ¶18The administrative judge found that the appellant was without fault in the overpayment. ID at 4. He also found that recovery of the overpayment was not unconscionable. The parties do not dispute these findings, and we decline to disturb them.3 ID at 4; IAF, Tab 8 at 7, 10, 15. To the extent that the appellant is alleging that OPM’s delay between when he first became eligible for Social Security old-age benefits in December 2014 and when it notified him of the 3 Although the administrative judge did not address whether the appellant established that he relied on the overpayment to his detriment, the appellant did not make such a claim below or on review. IAF, Tab 10 at 5-6. Therefore, we find no need to address this potential basis for waiver. To the extent that the appellant alleges that his retirement was the result of misinformation by his employing agency, he may file a separate appeal regarding an alleged involuntary retirement. IAF, Tab 1 at 8; see Morrison v. Department of the Navy , 122 M.S.P.R. 205, ¶ 7 (2015) (explaining that retirement is involuntary if it is obtained by agency misinformation or deception). We make no findings here as to the merits or timeliness of such an appeal.8 overpayment in September 2017 was unconscionable, we disagree. PFR File, Tab 1 at 6; see Spinella v. Office of Personnel Management , 109 M.S.P.R. 185, ¶¶ 2, 8-10 (2008) (declining to find a 79-month delay in OPM’s discovery of its error, which caused an overpayment, was unconscionable, even though OPM failed to conduct a timely audit that would have uncovered its error sooner). ¶19As to financial hardship, the administrative judge concluded that the appellant failed to provide OPM with information regarding his income, assets, or liabilities, and therefore was not entitled to a waiver on this basis. ID at 5. On review, the appellant argues that financial hardship can be “assume[d]” from the reduction of his “fixed pension serving as the sole source income.” PFR File, Tab 1 at 6. We are not persuaded. OPM advised the appellant below of his ability to seek a financial hardship waiver and instructed him to submit a Financial Resources Questionnaire (FRQ) if he did so. IAF, Tab 8 at 16, 36. In seeking reconsideration of OPM’s overpayment decision, the appellant did not indicate he was requesting a waiver, and there is no evidence he submitted an FRQ or other financial statement. Id. at 34-36. The file is devoid of any information from which we can conclude that the appellant “needs substantially all of . . . his current income and liquid assets to meet current ordinary and necessary living expenses and liabilities,” as necessary to establish financial hardship. 5 C.F.R. § 831.1404. Thus, we agree with the administrative judge that the appellant is not entitled to a financial hardship waiver.4 ¶20Accordingly, we affirm the initial decision as modified above. 4 OPM has advised the Board that it may seek recovery of any debt remaining upon an appellant’s death from the appellant’s estate or other responsible party. A party responsible for any debt remaining upon the appellant’s death may include an heir (spouse, child or other) who is deriving a benefit from the appellant’s Federal benefits, an heir or other person acting as the representative of the estate if, for example, the representative fails to pay the United States before paying the claims of other creditors in accordance with 31 U.S.C. § 3713(b), or transferees or distributers of the appellant’s estate. Pierotti v. Office of Personnel Management , 124 M.S.P.R. 103, ¶ 13 (2016).9 NOTICE OF APPEAL RIGHTS5 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.10 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any11 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s12 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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.14	Brown_Alphonso_DC-0831-18-0238-I-1_Final_Order.pdf	2023-11-16	ALPHONSO BROWN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0831-18-0238-I-1, November 16, 2023	DC-0831-18-0238-I-1	NP
2,687	https://www.mspb.gov/decisions/nonprecedential/Drummond_Sharon_DA-3443-22-0406-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SHARON DRUMMOND, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER DA-3443-22-0406-I-1 DATE: November 16, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jennifer T. Julian , Fort Worth, Texas, for the appellant. Roderick Eves , Saint Louis, Missouri, 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 regarding out-of-schedule (OOS) pay for lack of jurisdiction. On petition for review, the appellant reasserts that the agency owes her OOS pay and explains that she has unsuccessfully attempted to resolve this issue with other entities to date. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain3 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 4 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.6	Drummond_Sharon_DA-3443-22-0406-I-1_Final_Order.pdf	2023-11-16	SHARON DRUMMOND v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DA-3443-22-0406-I-1, November 16, 2023	DA-3443-22-0406-I-1	NP
2,688	https://www.mspb.gov/decisions/nonprecedential/Essoe_Ira_DC-1221-18-0313-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD IRA G. ESSOE, III, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER DC-1221-18-0313-W-1 DATE: November 16, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ira G. Essoe, III , APO, AE, pro se. Kimberly A. Jones , APO, AE, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his 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). judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that 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 have expressly MODIFIED the initial decision to consider certain evidence the appellant submitted with his petition for review. Having done so, we AFFIRM the initial decision dismissing the IRA appeal for lack of jurisdiction. BACKGROUND ¶2On February 11, 2018, the appellant, a GS-11 Operations Specialist, filed an IRA appeal in which he alleged that he had disclosed improper activity by his supervisors, including their having falsely accused him of poor performance, and that, based on these disclosures, he was given a poor evaluation, denied a within-grade increase (WIGI), and ultimately removed from his position and reassigned to another, in his view, lesser position. Initial Appeal File (IAF), Tab 1 at 5. He indicated that he had filed a whistleblowing complaint with the Office of Special Counsel (OSC) on November 15, 2016, and received written notice on December 7, 2017, that OSC had terminated its investigation, id. at 4, although he did not submit a copy of either document. He requested a hearing. Id. at 2. ¶3The administrative judge issued a thorough order on jurisdiction and proof requirements in connection with the appellant’s IRA appeal. IAF, Tab 3. In response, the appellant submitted a copy of OSC’s December 7, 2017 closure letter acknowledging his claim that, in September 2016, he reported a hostile2 work environment to the Deputy Garrison Commander and the Army Civilian Personnel Advisory Center (CPAC), and that, in retaliation, the Director and the Deputy Director, Directorate of Emergency Services, changed his duties, reassigned him, subjected him to a hostile work environment, and proposed to suspend him for 5 days based on Failure to Perform Assigned Tasks and Failure to Follow Instructions. IAF, Tab 5 at 2-3. The appellant also submitted a lengthy narrative, id. at 4-26, and other documents, many of which related to his performance, including counseling notes, id. at 27-104. The agency moved that the appeal be dismissed for lack of jurisdiction and as untimely filed, IAF, Tab 6, and the administrative judge ordered the appellant to again address the jurisdictional issue and to respond to the agency’s motion, IAF, Tab 8. In another lengthy submission, the appellant raised additional allegations of wrongdoing by his supervisors, including that they lied about his assigned duties and the quality of his work, IAF, Tab 10 at 7-12, 24-30, 17-19, and 22-23. The appellant also challenged the merits of the proposed 5-day suspension, id. at 12-14, 23-24, described the impact on him personally of the Letter of Reprimand he ultimately received and of the other actions taken against him, id. at 14-16, 37-45, and set out additional “Incidents of Interest,” id. at 32-36. The agency renewed its motion to dismiss the appeal for lack of jurisdiction. IAF, Tab 11. ¶4The administrative judge issued an initial decision based on the written record. IAF, Tab 12, Initial Decision (ID). He first found that the appellant established by preponderant evidence that he exhausted before OSC his claim that, in retaliation for his September 2016 hostile work environment disclosure to the Deputy Garrison Commander, the Deputy Director, Directorate of Emergency Services proposed the appellant’s 5-day suspension in October 2016, and the Deputy and the Director subjected him to a substantial change in duties, a reassignment, and a hostile work environment. The administrative judge found, however, that the appellant did not exhaust before OSC his claim regarding the denial of his WIGI. In making these findings, the administrative judge considered3 only OSC’s closure letter of December 7, 2017, noting that the appellant had failed to submit his actual OSC complaint, despite being directed to do so. ID at 6-10. The administrative judge next found that the appellant failed to nonfrivolously allege that he made a protected whistleblowing disclosure because, based on the allegations he exhausted before OSC, the administrative judge was unable to determine the nature of and/or basis for the appellant’s hostile work environment claim, although the administrative judge indicated that he would not speculate on the information OSC might have had before it in the context of the appellant’s complaint. ID at 10-11. Finally, the administrative judge found that, even assuming the appellant could establish that his hostile work environment disclosure satisfied the nonfrivolous jurisdictional standard, he failed to allege before OSC factors to show that his disclosure could have been a contributing factor in the agency’s decision to take a personnel action against him. ID at 11- 12. Accordingly, the administrative judge dismissed the appellant’s appeal for lack of jurisdiction.2 ID at 1, 12-13. ¶5The appellant has filed a petition for review, Petition for Review (PFR) File, to which the agency has responded in opposition. PFR File, Tab 3. ANALYSIS ¶6On petition for review, the appellant states, regarding his OSC complaint, that he believed the Board would have access to OSC’s complete file and did not realize that the Board would not have such access. PFR File, Tab 1 at 6. 2 While noting that the appellant failed to prove that his appeal was timely filed, the administrative judge stated that he did not address the issue, given his jurisdictional finding. ID at 13 n.11. The appellant’s appeal was required to be filed no later than 65 days after the date of issuance of OSC’s written notification to the appellant that it was terminating its investigation of his allegations. 5 C.F.R. § 1209.5(a)(1). Because OSC’s written notification was issued on December 7, 2017, IAF, Tab 5 at 2-3, the appellant’s IRA appeal had to be filed by February 12, 2018, 5 C.F.R. §§ 1209.3, 1201.4(i). Therefore, the appeal, filed on February 11, 2018, was, in fact, timely. However, to the extent the administrative judge erred in this regard, his error did not prejudice the appellant’s substantive right because, upon our review, we agree with the administrative judge that the appellant failed to establish the Board’s jurisdiction over his appeal. Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984).4 Accordingly, with his petition for review, the appellant has submitted a copy of his OSC complaint, id. at 23-57, and other correspondence he filed with and received from OSC, id. at 76-125. Generally, 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). Even though none of these documents qualifies as new evidence, the issue of the Board’s jurisdiction is always before the Board and may be raised at any time. 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). Here, because the appellant’s OSC complaint and other correspondence he exchanged with OSC could bear on the decision of the administrative judge to dismiss this IRA appeal for lack of jurisdiction, Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 9 (2016), we have considered the documents.3 ¶7As noted, the administrative judge found that the appellant exhausted before OSC his claims that, in retaliation for his September 2016 hostile work environment disclosure to agency officials, he received in October 2016 a proposal that he be suspended for 5 days. The administrative judge also found that, because the appellant notified Garrison Leadership of a hostile work environment, the Director and the Deputy Director, Directorate of Emergency Services retaliated against him for that disclosure. ID at 8. We perceive that the latter claim is reflected in the appellant’s OSC complaint. Specifically, he alleged that, from April 14-26, 2016, he disclosed to the Director of CPAC and a Human Resources Specialist that the Director, Directorate of Emergency Services 3 Because the appellant has not shown that he submitted to OSC the other documents he has submitted with his petition for review, PFR File, Tab 1 at 58-75, 126-169, 175-232, we have not considered them. They are either not new, not material to the dispositive jurisdictional issue in this case, or both. Avansino v. U.S. Postal Service , 3 M.S.P.R. at 214; Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating that the Board will generally not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). 5 had created a hostile work environment, and that, in retaliation for this disclosure, the appellant was removed from his position and placed in a lesser position on February 26, 2016. PFR File, Tab 1 at 30, 43. The appellant also alleged in his OSC complaint that, on May 24, 2016, he made the same disclosure to the Deputy Garrison Commander, and also disclosed that he was removed from the lesser position and not assigned any work, and that, in retaliation for these disclosures, he was issued a notice of proposed suspension. Id. at 30, 45. Thus, we have considered the appellant’s OSC complaint, missing from the record below, and find that it supports the administrative judge’s findings regarding exhaustion.4 ¶8The administrative judge further found, however, that the appellant failed to nonfrivolously allege that he made a protected whistleblowing disclosure because, based on the record before him, the administrative judge was unable to determine the nature of and/or basis for the appellant’s hostile work environment claim. ID at 8. A protected disclosure is a disclosure of information that the appellant reasonably believes evidences any violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8); Bradley v. Department of Homeland Security , 123 M.S.P.R. 547, ¶ 7 (2016). To succeed in this part of his jurisdictional burden, an appellant must nonfrivolously allege that a disinterested observer with the employee’s knowledge of essential facts could reasonably conclude that the disclosed information constituted a protected disclosure. Id. An employee’s purely subjective perspective is not sufficient. Lachance v. White , 174 F.3d 1378, 1381 (Fed. Cir. 1999). In his OSC complaint, the appellant described the Director’s 4 We note that the administrative judge found that the appellant failed to establish exhaustion regarding his claim that he was denied a WIGI in retaliation for his disclosures. ID at 9. In fact, the appellant raised this claim in his correspondence with OSC. PFR File, Tab 1 at 76, 81. However, because we agree with the administrative judge that the appellant failed to nonfrivolously allege that he made a protected disclosure, the administrative judge’s error in not acknowledging that the appellant exhausted this claim does not prejudice his substantive rights. Panter, 22 M.S.P.R. at 282.6 “micromanagement, impatience, and anger,” and claimed that, when he (the appellant) stood up for other employees, the Director would “get indignant with [him].” PFR File, Tab 1 at 39. The appellant also claimed that the Director treated him with a “lack of respect” and acted in an unprofessional manner. Id. at 43. To the extent the appellant claims that he made these disclosures to Garrison leadership, they are too vague and conclusory to rise to the level of a nonfrivolous allegation of a protected disclosure.5 See, e.g., Lewis v. Department of Defense, 123 M.S.P.R. 255, ¶ 12 (2016); El v. Department of Commerce , 123 M.S.P.R. 76, ¶¶ 6-8 (2015), aff’d, 663 F. App’x 921 (Fed. Cir. 2016); 5 C.F.R. § 12014(s) (a nonfrivolous allegation must be more than conclusory). ¶9We therefore agree with the administrative judge’s finding that the appellant has failed to nonfrivolously allege that his disclosure is protected under the Whistleblower Protection Act and that therefore his IRA must be dismissed for lack of jurisdiction.6 Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001) (holding that the Board has jurisdiction over an 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); Covarrubias v. Social Security Administration , 113 M.S.P.R. 583, ¶ 17 (2010) (explaining that 5 We have also reviewed the documents the appellant submitted with his petition for review that reflect his correspondence to and from OSC, PFR File, Tab 1 at 76-125, and while these documents further set out the complaints the appellant had with his supervisors regarding his performance, they shed little additional light on the nature of his alleged disclosure to Garrison leadership of what he has described as a hostile work environment. 6 Neither has the appellant nonfrivolously alleged that his disclosure is protected under the Whistleblower Protection Enhancement Act (WPEA). He alleges that he disclosed discrimination based on age and claimed in his correspondence to OSC that the agency discriminated against him on this basis, PFR File, Tab 1 at 78. However, the administrative judge correctly found that the WPEA does not extend the coverage of the whistleblower protection statutes to Title VII-related matters. Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 19-21; ID at 10-11.7 the Board need not address whether a disclosure was a contributing factor to a personnel action where the appellant has not made a nonfrivolous allegation that she made a protected disclosure), overruled in part on other grounds by Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677, ¶ 12 (2014). 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 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.8 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file9 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 10 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 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. 11 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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.12	Essoe_Ira_DC-1221-18-0313-W-1_Final_Order.pdf	2023-11-16	null	DC-1221-18-0313-W-1	NP
2,689	https://www.mspb.gov/decisions/nonprecedential/Jackson_Rodney_AT-0752-22-0414-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RODNEY JACKSON, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER AT-0752-22-0414-I-1 DATE: November 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Rodney B. Jackson , Snellville, Georgia, pro se. Aryeh Rosenfield , 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 dismissed his appeal of his removal on the basis of adjudicatory efficiency because the parties and issues involved are identical to those in the appellant’s previous appeal of his removal. On petition for review, the appellant requests that we review the initial decision. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b) . NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain3 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 4 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.6	Jackson_Rodney_AT-0752-22-0414-I-1_Final_Order.pdf	2023-11-15	RODNEY JACKSON v. DEPARTMENT OF THE TREASURY, MSPB Docket No. AT-0752-22-0414-I-1, November 15, 2023	AT-0752-22-0414-I-1	NP
2,690	https://www.mspb.gov/decisions/nonprecedential/Mosinski_David_A_CH-0842-21-0268-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DAVID A. MOSINSKI, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER CH-0842-21-0268-I-1 DATE: November 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 David A. Mosinski , Madison, Alabama, pro se. Alison Pastor , 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 affirmed the decision of the Office of Personnel Management (OPM) denying his application for a deferred Federal Employees’ Retirement System (FERS) annuity. On petition for review, the appellant argues that the administrative judge made several misstatements of fact, and he reiterates his arguments from below 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). that he was unaware that receiving a refund of retirement deductions voided his right to an annuity and that OPM misled him into applying for a refund of those deductions. Petition for Review (PFR) File, Tab 1 at 4-10. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established 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). ¶2The administrative judge correctly found that, because the appellant received a refund of his FERS deductions after separating from his employing agency and because he was not subsequently reemployed in a covered FERS position wherein he could redeposit those refunds, with interest, the appellant was ineligible to receive a FERS deferred annuity. Initial Appeal File (IAF), Tab 15, Initial Decision (citing 5 U.S.C. 8424(a); 5 C.F.R. § 843.202(b)); see Pagum v. Office of Personnel Management , 55 M.S.P.R. 648, 651 (1992). The appellant’s arguments on petition for review that he was not clearly informed that applying for a refund of his FERS deductions would result in forfeiture of his FERS annuity or that his former employing agency instructed him to apply for the2 refund do not provide a basis to disturb the initial decision.2 See Office of Personnel Management v. Richmond , 496 U.S. 414, 415-16, 424, 434 (1990) (holding that estoppel against the Government cannot result in the payment of money not otherwise provided for by law); Hamilton v. Office of Personnel Management, 69 M.S.P.R. 690, 694 (1996) (applying Richmond and confirming that the Government cannot be estopped from denying benefits not otherwise permitted, despite equitable considerations). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 2 The Standard Form 3106 (SF-3106) the appellant completed to obtain a refund of his retirement deductions informed him that for those employed under FERS after October 28, 2009, such as the appellant, “the service covered by the refund cannot be used in the computation of [a] FERS annuity” unless the individual is reemployed under FERS and makes a redeposit. IAF, Tab 7 at 19. The appellant’s argument that the language on the SF-3106 did not inform him of the consequences of obtaining a refund is without merit. PFR File, Tab 1 at 9. The appellant also argues on review that the administrative judge incorrectly referenced the title of the SF-3106 and stated, without citation to record evidence, that the appellant requested information about depositing his refund into an individual retirement account, but he has not explained how either of these statements affected the outcome of his case. Id. at 5-6; PFR File, Tab 5. To the extent these statements constitute error, we find that the appellant failed to prove that his substantive rights were affected and that they, therefore, do not provide a basis to disturb the initial decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 5 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Mosinski_David_A_CH-0842-21-0268-I-1_Final_Order.pdf	2023-11-15	DAVID A. MOSINSKI v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0842-21-0268-I-1, November 15, 2023	CH-0842-21-0268-I-1	NP
2,691	https://www.mspb.gov/decisions/nonprecedential/Oyegbola_Omolola_DC-0752-18-0833-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD OMOLOLA OYEGBOLA, Appellant, v. SMITHSONIAN INSTITUTION, Agency.DOCKET NUMBER DC-0752-18-0833-I-1 DATE: November 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Omolola Oyegbola , Washington, D.C., pro se. Katherine Bartell , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed her involuntary resignation appeal for lack of jurisdiction. On petition for review, the appellant reasserts that she had no choice but to resign to avoid a baseless suspension action and because the agency violated her privacy rights. Petition for Review (PFR) File, Tab 1 at 4. She further claims 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). administrative judge erred in denying her a hearing.2 Id. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and 2 The appellant also has filed a motion requesting leave to file additional argument and evidence after the close of the record. PFR File, Tab 2 at 1-2, Tab 6 at 3; see 5 C.F.R. § 1201.114(k) (providing that the record closes on the expiration of the period for filing the reply to the response to the petition for review). Once the record closes, no additional evidence or argument will be accepted unless it is new and material as defined in section 1201.115(d) and the party submitting it shows that the evidence or argument was not readily available before the record closed. 5 C.F.R. § 1201.114(k). The appellant has not made such a showing. In her motion, the appellant asserts that, on October 29, 2019, she received several documents from the agency—emails between her and the agency, “a work assignment list, a resignation memo, and a draft copy of [her] performance appraisal input,” PFR File, Tab 6 at 3; however, she offers no dates or other information suggesting that the documents, or the information contained therein, are new. Although she alleges that she received these documents after contacting the agency “several times” and generally suggests she had to tend to “urgent matters (general and health)” at some undefined time, PFR File, Tab 6 at 3, she did not show that the documents were otherwise unavailable to her or that she acted diligently in obtaining them from the agency before the close of the record. See 5 C.F.R. § 1201.115(d) (explaining that, to constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed). Moreover, the appellant has not shown that her argument and evidence are material because she has not shown that they provide a basis for reversing the initial decision. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980). We therefore deny the appellant’s motion.2 AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any4 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s5 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Oyegbola_Omolola_DC-0752-18-0833-I-1_Final_Order.pdf	2023-11-15	OMOLOLA OYEGBOLA v. SMITHSONIAN INSTITUTION, MSPB Docket No. DC-0752-18-0833-I-1, November 15, 2023	DC-0752-18-0833-I-1	NP
2,692	https://www.mspb.gov/decisions/nonprecedential/Santovasi_Robert_James_PH-0752-22-0213-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ROBERT JAMES SANTOVASI, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER PH-0752-22-0213-I-1 DATE: November 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Robert James Santovasi , Rollinsford, New Hampshire, pro se. Roderick Eves , Saint Louis, Missouri, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his alleged improper reassignment appeal for lack of jurisdiction. On petition for review, the appellant argues that the administrative judge misinterpreted material facts in finding that the Board lacked jurisdiction over his appeal and reasserts his claims below. Petition for Review File, Tab 1 at 4-8. Generally, we grant petitions such as this one only in the following 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you3 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.6	Santovasi_Robert_James_PH-0752-22-0213-I-1_Final_Order.pdf	2023-11-15	ROBERT JAMES SANTOVASI v. UNITED STATES POSTAL SERVICE, MSPB Docket No. PH-0752-22-0213-I-1, November 15, 2023	PH-0752-22-0213-I-1	NP
2,693	https://www.mspb.gov/decisions/nonprecedential/Schmidt_Ronald_T_CH-0831-20-0576-I-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RONALD T. SCHMIDT, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER CH-0831-20-0576-I-2 DATE: November 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ronald T. Schmidt , Bonduel, Wisconsin, pro se. Jane Bancroft , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which affirmed the final decision of the Office of Personnel Management (OPM) finding that he had received a refund check for 4 months of retirement contributions for previous Federal service in 1986. On petition for review, the appellant argues that the administrative judge should not have issued an 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 before the Department of Treasury completed its investigation into the payment status of the refund check and that she should have required OPM to submit evidence of its contact with the Department of Treasury. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.6	Schmidt_Ronald_T_CH-0831-20-0576-I-2_Final_Order.pdf	2023-11-15	RONALD T. SCHMIDT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0831-20-0576-I-2, November 15, 2023	CH-0831-20-0576-I-2	NP
2,694	https://www.mspb.gov/decisions/nonprecedential/Cage_John_F_AT-3443-18-0729-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOHN F. CAGE, Appellant, v. ARMED FORCES RETIREMENT HOME, Agency.DOCKET NUMBER AT-3443-18-0729-I-1 DATE: November 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 John F. Cage , Gulfport, Mississippi, pro se. Elizabeth E. Pavlick , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction his appeal challenging his performance rating. On petition for review, the appellant argues that the agency lowered his performance rating in retaliation for his equal employment opportunity (EEO) and other protected activity. Petition for Review File, Tab 1 at 2-3. Generally, we 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2The 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). As explained by the administrative judge, performance ratings are generally not appealable actions. See Bambl v. Department of the Treasury , 113 M.S.P.R. 55, ¶ 9 (2010). The appellant has not made a nonfrivolous allegation that any exception to this general rule should apply to his appeal. In particular, allegations of discrimination or reprisal for EEO activity are not an independent source of jurisdiction. E.g., 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). ¶3Further, we agree with the administrative judge that the appellant has not alleged that he exhausted his administrative remedies with the Office of Special Counsel, which is a prerequisite to an individual right of action appeal concerning a claim of reprisal for whistleblowing or other protected activity. See Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016); 5 C.F.R. part 1209.2 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	Cage_John_F_AT-3443-18-0729-I-1_Final_Order.pdf	2023-11-14	JOHN F. CAGE v. ARMED FORCES RETIREMENT HOME, MSPB Docket No. AT-3443-18-0729-I-1, November 14, 2023	AT-3443-18-0729-I-1	NP
2,695	https://www.mspb.gov/decisions/nonprecedential/Buckanaga_Linda_CH-0752-22-0366-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LINDA BUCKANAGA, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency.DOCKET NUMBER CH-0752-22-0366-I-1 DATE: November 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kevin Curtis Crayon, II , Esquire, Kennesaw, Georgia, for the appellant. Arlene Elizabeth Boland , Bemidji, Minnesota, for the agency. Chung-Han Lee , Esquire, Chicago, Illinois, 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 involuntary disability retirement appeal for lack of jurisdiction. On petition for review, the appellant generally reargues the merits of her case and claims that the administrative judge erred by applying the wrong jurisdictional 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). test, by only looking at her claims piecemeal instead of at the totality of the circumstances, and by giving deference to the final agency decision. Petition for Review File, Tab 1 at 5-32. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.6	Buckanaga_Linda_CH-0752-22-0366-I-1_Final_Order.pdf	2023-11-14	LINDA BUCKANAGA v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. CH-0752-22-0366-I-1, November 14, 2023	CH-0752-22-0366-I-1	NP
2,696	https://www.mspb.gov/decisions/nonprecedential/Asperheim_Kimberley_Y_CH-0831-18-0042-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KIMBERLEY J. ASPERHEIM, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER CH-0831-18-0042-I-1 DATE: November 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kimberley J. Asperheim , Little Falls, Minnesota, pro se. Jane Bancroft , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management (OPM) finding that she received an overpayment of annuity benefits under the Civil Service Retirement System (CSRS) due to an offset accounting for a portion of the benefit she received from the Social Security Administration. 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 argues that she is exempt from CSRS Offset because she held non-Federal employment in the mid-1970s and from 1995 to 2005.2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 2 In support of her argument, the appellant cites OPM reference guide Retirement Facts 13/CSRS Offset Retirement , which states, in relevant part, that an employee’s annuity will not be reduced by any portion of his or her Social Security benefit that is based on service other than CSRS Offset employment. Petition for Review (PFR) File, Tab 1 at 3, 16. She contends that the administrative judge incorrectly stated that she referenced several attachments, including the OPM reference guide, that were not included in the record. Id. at 3. The OPM reference guide is not part of the record below. While the appellant asserts that she provided OPM with a copy of the reference guide when she submitted her reconsideration request, she acknowledges that she was unable to attach it to her Board appeal due to technical difficulties. Id. at 3-4. Even if we were to consider the reference guide, there is no indication in the record that OPM reduced her annuity by a portion of her Social Security benefit based on service other than CSRS Offset employment.2 Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 OPM has advised the Board that it may seek recovery of any debt remaining upon an appellant’s death from the appellant’s estate or other responsible party. A party responsible for any debt remaining upon the appellant’s death may include an heir (spouse, child, or other) who is deriving a benefit from the appellant’s Federal benefits, an heir or other person acting as the representative of the estate if, for example, the representative fails to pay the United States before paying the claims of other creditors in accordance with 31 U.S.C. § 3713(b), or transferees or distributers of the appellant’s estate. Pierotti v. Office of Personnel Management , 124 M.S.P.R. 103, ¶ 13 (2016). 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any4 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s5 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Asperheim_Kimberley_Y_CH-0831-18-0042-I-1_Final_Order.pdf	2023-11-14	KIMBERLEY J. ASPERHEIM v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0831-18-0042-I-1, November 14, 2023	CH-0831-18-0042-I-1	NP
2,697	https://www.mspb.gov/decisions/nonprecedential/Jones__Katrina_Regina_AT-0752-22-0483-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KATRINA REGINA JONES, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER AT-0752-22-0483-I-1 DATE: November 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Katrina Regina Jones , Phenix City, Alabama, pro se. Alexander R. Rivera , Esquire, Denver, Colorado, 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 alleged involuntary resignation appeal for lack of jurisdiction. On petition for review, the appellant reasserts that she worked for the agency for more than a year and that her supervisor did not allow her to rescind her resignation. Petition for Review (PFR) File, Tab 2 at 13; Initial Appeal File (IAF), Tab 1 at 5. Generally, we grant petitions such as this one only in the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2The appellant provides several documents for the Board’s consideration on review.2 PFR File, Tab 1 at 3-16. The Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980); 5 C.F.R. § 1201.115(d). The appellant’s documents submitted for the first time on review includes a note from her treating physician, a Treatment Verification for Wounded Warriors Leave form, her agency identification card, and a Family and Medical Leave Act form, none of which are material to the jurisdictional issue. PFR File, Tab 1 at 3-16; see 5 C.F.R. § 1201.115(d) (explaining that the Board may grant a petition for review if it contains new and material evidence). We therefore decline to consider them further. 2 One of the documents the appellant included with her petition for review is in the record below and thus provides no basis to disturb the initial decision. PFR File, Tab 2 at 6; IAF, Tab 13 at 2; see Brough v. Department of Commerce , 119 M.S.P.R. 118, ¶ 4 (2013) (observing that the Board will grant a petition for review based on new and material evidence under certain circumstances but that evidence that is already a part of the record is not new). We decline to discuss this document further.2 ¶3Accordingly, we affirm the initial decision. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any4 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s5 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Jones__Katrina_Regina_AT-0752-22-0483-I-1_Final_Order.pdf	2023-11-14	KATRINA REGINA JONES v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-22-0483-I-1, November 14, 2023	AT-0752-22-0483-I-1	NP
2,698	https://www.mspb.gov/decisions/nonprecedential/Fitzpatrick_Stephanie_I_PH-0752-21-0293-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD STEPHANIE I. FITZPATRICK, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER PH-0752-21-0293-I-1 DATE: November 13, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Stephanie I. Fitzpatrick , Arlington, Virginia, pro se. Alice Bishop , Esquire, Bedford, Massachusetts, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which sustained her removal from service. On petition for review, the appellant argues that the administrative judge was biased, she improperly excluded witnesses, and she erred by considering the appellant’s past discipline. Generally, we grant petitions such as this one only in the following circumstances: the initial decision 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you3 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.6	Fitzpatrick_Stephanie_I_PH-0752-21-0293-I-1_Final_Order.pdf	2023-11-13	STEPHANIE I. FITZPATRICK v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0752-21-0293-I-1, November 13, 2023	PH-0752-21-0293-I-1	NP
2,699	https://www.mspb.gov/decisions/nonprecedential/Lee_John_C_SF-0752-18-0187-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOHN C. LEE, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER SF-0752-18-0187-I-1 DATE: November 13, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 John C. Lee , Concord, California, pro se. Melissa Luckett , Esquire, Irving, Texas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which sustained his removal. On petition for review, the appellant contends that the administrative judge erred in sustaining the lack of candor charge, erred in finding nexus, and erred in finding that the appellant received the same penalty that other employees received for the same or similar misconduct and 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). penalty was reasonable.2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 2 Regarding the consistency of the penalty with those imposed upon other employees for the same or similar offenses, the administrative judge cited to the standard in Boucher v. U.S. Postal Service , 118 M.S.P.R. 640, ¶ 20 (2012), and determined that the agency did not treat the appellant more harshly than other employees who had committed similar misconduct. Initial Appeal File, Tab 21, Initial Decision (ID) at 16. The administrative judge did not have the benefit of the Board’s decision in Singh v. U.S. Postal Service, 2022 MSPB 15, when he issued the initial decision. In Singh, the Board found that the analysis in cases like Boucher represented a departure from the standard set forth in Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981), which calls for comparison with penalties “imposed upon other employees for the same or similar offenses.” Singh, 2022 MSPB 15, ¶ 17. The Board overruled Boucher to the extent it held that the analysis should extend beyond the same or similar offenses. Id. Further, the Board held that, in assessing an agency’s penalty determination, the relevant inquiry is whether the agency knowingly and unjustifiably treated employees differently. Id., ¶ 14. Nevertheless, in applying Singh to this case, the outcome would be the same. 2 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any4 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s5 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C.7	Lee_John_C_SF-0752-18-0187-I-1__Final_Order.pdf	2023-11-13	JOHN C. LEE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-18-0187-I-1, November 13, 2023	SF-0752-18-0187-I-1	NP

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