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2,900	https://www.mspb.gov/decisions/nonprecedential/CAMPOS_JOSE_A_DC_0831_18_0417_I_1_FINAL_ORDER_2049731.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JOSE A. CAMPOS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DC-0831 -18-0417 -I-1 DATE: July 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jose A. Campos , Republic of Panama, pro se. Carla Robinson , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal of the September 22, 2006 final decision from the Office of Personnel Management (OPM) concerning his application for a Civil Service Retirement System annuity as res judicata . On petition for review, the a ppellant 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 argues that OPM’s decision was based on inacc urate and incomplete information. He also submits some documentary evidence related to his service history, including a November 18, 1998 reduction in force letter and declarations from three former colleagues concerning his Federal service .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 la w to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of t he case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Boar d’s final decision.3 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIG HTS4 You may obtain review of this final de cision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such 2 After the close of the record on review, the appellant moved for leave to file an additional pleading. Petition for Review File, Tab 13. We deny the motion because the appellant has not shown tha t the pleading he wishes to submit is based on new and material evidence. 3 To the extent that the appellant’s petition for review might be construed as a request to reopen his prior Board appeal under 5 C.F.R. § 1201.118 , we deny the request. 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 review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights de scribed below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follo w all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seek ing judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide fo r 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 m ay visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants t hat any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Boar d and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later tha n 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointe d lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the 5 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 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. Co urt of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Me rit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit co urt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C . /s/ for Jennifer Everling Acting Clerk of the Board	CAMPOS_JOSE_A_DC_0831_18_0417_I_1_FINAL_ORDER_2049731.pdf	2023-07-14	null	DC-0831	NP
2,901	https://www.mspb.gov/decisions/nonprecedential/ADKINS_LENA_I_CH_0752_18_0070_I_1_FINAL_ORDER_2049736.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LENA I. ADKINS, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER CH-0752 -18-0070 -I-1 DATE: July 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lena I. Adkins , Trenton, Illinois, pro se. David Crawford and Kim E. Dixon , Scott Air Force Base, Illinois, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her involuntary retirement appeal for lack of jurisdiction. On petition for review, the appellant reiterates that several official documents show her service computation date (SCD) as September 16, 1983 , rather than the May 6, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 1991 service computation date the agency used in calculating her annuity. She includes, for the first time with her petition for review, a March 31, 2016 Benefits Estimate Report for a disability annuity from the Employee Benefits Information System that indic ates a retirement SCD of September 16, 1983.2 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 interpretat ion of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abu se of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201 .115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). 2 The appellant explains in her petition for review that she “found” the March 31, 2016 document when looking for references that she might have used to base her assumptions concerning the correct SCD. Petition for Review File, Tab 1 at 4. She did not assert why she failed to submit this document before the close of the record below. Accordingly, we have not considered it. Under 5 C.F.R. § 1201.115 , the Board will not consider evidence submitted for the first time on review absent a showing that it was unavailable before the reco rd was closed despite the party’ s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). 3 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the ap propriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on whi ch option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immedi ately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of th e three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit you r 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 repres entation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit . The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your dis crimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a represe ntative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discriminatio n based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 5 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/C ourt_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for revi ew to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhanc ement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 6 disposition of allegations of a prohibited personnel practice described in s ection 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ADKINS_LENA_I_CH_0752_18_0070_I_1_FINAL_ORDER_2049736.pdf	2023-07-14	null	CH-0752	NP
2,902	https://www.mspb.gov/decisions/nonprecedential/LINTZ_DEIDRA_SF_0353_09_0247_I_3_FINAL_ORDER_2049738.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DEIDRA LINTZ, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER SF-0353 -09-0247 -I-3 DATE: July 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Deidra Lintz , Elk Grove, California, pro se. Catherine V. Meek , Esquire, Long Beach, California, 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, whic h dismissed her appeal as untimely refiled without a showing of good cause for the delay of approximately 4 years. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of mat erial 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 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 interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial dec ision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that 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 good cause standard specific to the untimely refiling of an appeal previously dismissed without prejudice, we AFFIRM the initial decisio n. ¶2 The Board has held that its dismissal without prejudice practice should not become a trap to deny an appel lant the opportunity to have h er case decided on the merits. Jaramillo v. Department of the Air Force , 106 M.S.P.R. 244, ¶ 6 (2007). Accordingly, the Board has identified specific standards for determining whether good cause exists for excusing an untimely filed appeal of a matter previously dismissed without prejudice. Sherman v. U.S. Postal Service , 118 M.S.P.R. 265 , ¶ 9 (2012); Nelson v. U.S. Postal Service , 113 M.S.P.R. 644 , ¶ 8 (2010), aff’d , 414 F. App’x 292 (Fed. Cir. 2011). These include the following: the appellant’s pro se status; the timeliness of the initial appeal; the appellant’s demonstrated intent throughout the proceedings to refile the appeal; the length of the delay in filing; confusion surrounding and arbitrariness of the refiling deadline; the number of prior dismissals without prejudice; the agency’s failure to object to the dismissal without prejudice; and the lack of prejudice to the agency in allowing the refiled appeal. Sherman , 118 M.S.P.R. 265 , ¶ 9; Nelson , 113 M.S.P.R. 644 , ¶ 8. 3 ¶3 Althoug h the administrative judge did not apply the standard described above, we agree with his ultimate conclusion that the appellant did not establish good cause for her untimely refiling. In the appellant’s favor, her initial appeal was timely filed, the agen cy did not object to either of the prior dismissals without prejudice, and the agency has not asserted that it would be prejudiced by allowing the refiled appeal. The number of prior dismissals without prejudice (two) is also not especially large. Cf. Sh erman , 118 M.S.P.R. 265 , ¶ 10 (finding that four prior dismissals without prejudice weighed against the appellant). However, th e delay of nearly 4 years weighs against a finding of good cause, see Nelson , 113 M.S.P.R. 644, ¶ 9 (finding a 4 -month refiling delay “far from minimal”), and the appellant did not demonstrate an intent to refile durin g that period . Moreover, we find nothing that would justify any confusion about the clearly stated deadline —which, far from being arbitrary, was chosen to accommodate the appellant’s request to obtain a final decision from the Office of Workers’ Compensation Programs before resuming the Board proceedings. In addition, the appellant had a designated representative at the time her appeal was last dismissed without prejudice, and she did not revok e that designation until after the untimely refiling of her appeal. To the extent the appellant contends her representative was unresponsive to the Board’s orders, it is well settled that an appellant is responsible for the errors of her chosen representative , Sofio v. Internal Revenue Service , 7 M.S.P.R. 667 , 670 (1981), and we find no merit to her apparent suggestion that the agency was responsible for notifying the Board of his change of address. Based on the foregoing, we find the appellant has not shown good cause for the untimely refiling , and we therefore affirm the dismissal of her appeal. 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 Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described below d o not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing ti me limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the fo llowing address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representati ve receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 6 race, color, religion, sex, nati onal origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information f or U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your rep resentative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EE OC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 7 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 Fede ral Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are intere sted in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appel lants before the Federal Circuit. The 3 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	LINTZ_DEIDRA_SF_0353_09_0247_I_3_FINAL_ORDER_2049738.pdf	2023-07-14	null	SF-0353	NP
2,903	https://www.mspb.gov/decisions/nonprecedential/MELLO_DENISE_J_PH_0843_17_0401_I_1_FINAL_ORDER_2049790.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DENISE J. MELLO, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER PH-0843 -17-0401 -I-1 DATE: July 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Denise J. Mello , Somerset, Massachusetts, pro se. Michael Shipley , 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 affirmed the final decision of the Office of Personnel Management (OPM) disallowing as untimely her late husband’s election of a current spouse survivor annuity under the Federal Employees’ Retirement System (FERS) . 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 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 for review, the appellant renews her argument that her late husband wished to provide her a survivor annuity but failed to make a timely election because of his preoccupation with his own serious health issues and providing care for the appellant. She further argues that the election deadline should be waive d in light of OPM’s lengthy delay in issuing its final decision . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of t he Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that 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 in the next paragraph below to correct some legal citations, we AFFIRM the initial decision. ¶2 In his initial decisio n, the administrative judge cited to the election provisions at 5 U.S.C. § 8416 (b)(1) and 5 C.F.R. § 842.612 (b)(1). It does not appear to us that these citations are correct because they pertain to FERS post-retirement survivor annuity elections by an individual who was married at the time of retirement . B ased on our review of the record, it appears that the appellant was unmarri ed at the time of retirement, and therefore the applicable governing provisions would be 5 U.S.C. § 8461 (c)(1) and 5 C.F.R. § 842.612 (a). In either case, however, the 2 -year deadline remains the same, and we find that any error that the administrative judge may have made in this regard is immaterial 3 to the outcome of the appeal. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984). 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 Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filin g time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicia l review of a final Board order 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 w hich 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 fo llowing address: U.S. Court of Appeals for the Federal Ci rcuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any att orney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file 5 with the district court no lat er than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed t hrough the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you rece ive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, 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 pet ition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 deci sion. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar relevance is the court’s “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 cou rt 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 p rovided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MELLO_DENISE_J_PH_0843_17_0401_I_1_FINAL_ORDER_2049790.pdf	2023-07-14	null	PH-0843	NP
2,904	https://www.mspb.gov/decisions/nonprecedential/MABANE_JOHNATHAN_L_DA_0752_17_0460_I_1_FINAL_ORDER_2049820.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JOHNATHAN L. MABANE, III, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DA-0752 -17-0460 -I-1 DATE: July 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Andrew Kim , Esquire, Atlanta, Georgia, for the appellant. LaTasha C. Clark and Justin Wade Sweat , Jackson, Mississippi , 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 . Generally, we grant petitions such as this one only 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 affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 In his petition for review, the appellant as serts that the administrative judge erred in sustaining the charges. He asserts that she err ed in sustaining C harge 1 because she misapplied Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 83-87 (1981). Petition for Review File, Tab 1 at 12 -14. He assert s that she erred in sustaining C harge 2 b ecause she improperly f ound that he admitted to the misconduct. Id. at 17 -18. He contend s that s he erred in sustaining Charge 3 by finding that incarceration is not a legitimate basis for a grant of annual leave for his F ebruary 28-March 1, 2017 absences, by failing to consider that his supervisor first approved the leave and later denied it, and by not considering that he was absent on March 2-3, 2017, due to the effect of medication. Id. at 15 -17. He also alleges that the administrative judge erred in finding that the agency did not deny him due process, did not commit harmful proce dural error, and proved by clear and convincing evidence that it would have taken the same action in the absence of his protected disclosures and activity. Id. at 21 -26. Finally, he alleges that the administrative judge erred in finding that the penalty was reasonabl e. Id. at 18-21. We find that the appellant ’s arguments on review do not provide a basis for disturbing the initial decision. See Crosby v. U.S. Postal Service , 74 M.S.P.R . 98, 106 (1997) (finding no reason to disturb the administrative judge's findings 3 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). 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 t o file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriat e for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applica ble to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choice s of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services p rovided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representativ e receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 5 race, color, religion, sex, natio nal origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. Co urt of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Me rit Systems Protection Board appellants before the Federal Circuit. The 3 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MABANE_JOHNATHAN_L_DA_0752_17_0460_I_1_FINAL_ORDER_2049820.pdf	2023-07-14	null	DA-0752	NP
2,905	https://www.mspb.gov/decisions/nonprecedential/VISAYA_VILLAMOR_A_SF_315H_18_0099_I_1_FINAL_ORDER_2049865.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD VILLAMOR A. VISAYA, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER SF-315H -18-0099 -I-1 DATE: July 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Villamor A. Visaya , Riverside, Califor nia, pro se. Kim E. Dixon , Scott Air Force Base , Illinois, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his termination ap peal 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 contribut ing 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 discretio n, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, se ction 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for grant ing the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decis ion. 5 C.F.R. § 1201.113 (b). ¶2 For the first time on review , the appellant claims that the agency terminated him based on preappointment reasons without following the procedural requirements set forth at 5 C.F.R. § 315.805 . Petit ion for Review (PFR) File, Tab 1 at 4-5. The appellant has not explained why he was unable to raise this argument before the administrative judge despite receiving notice in the acknowledgment order of the regulatory right to appeal under 5 C.F.R. § 315.806 . Initial Appeal File (IAF) , Tab 2 at 2-4; see Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (finding that the Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the part y’s due diligence). Nevertheless, we find that the appellant has failed to make a nonfrivolous allegation that his termination was based on preappointment reasons. See Walker v. Department of the Army , 119 M.S.P.R. 3 91, ¶ 14 (201 3) (finding that preappointment reasons include matters such as falsification of an employment application and omitting information during a preemp loyment interview and that they do not include postappointment performance or conduct deficiencies ). The agency based the appellant’s termination on alleged 3 performance and conduct reasons, IAF, Tab 4 at 11, and the appellant has failed to articulate any alleged preappointment reasons, PFR File, Tab 1. ¶3 Further, the appellant makes the following additional arguments on review: the agency discriminated against him, denied him a reasonable accommodation, and violated his due process rights ; the agency impose d an inconsistent penalty; and the agency did not prove the alleged performance -based reasons for his termination. PFR File, Tab 1 at 4-6. We decline to address those arguments regarding the merits of the termination because they are not relevant to the dispositive jurisdictional issue. Moreover, we agree with the administrative judge’s finding that, absent an otherwise appealable action, the Board lacks jurisdiction to address the appellant’s discrimination and due process claims. IAF, Tab 5, Initial D ecision (ID) at 9; see Smith v. Department of Defense , 106 M.S.P.R. 228, ¶ 13 (2007) (explaining that the Board has no jurisdiction t o review constitutional claims that are not coupled with independently appealable actions); Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (h olding 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). ¶4 Finally, we find that the appellant’s remaining claims on review that he was denied a hearing and attorney representation before the Board fail to provide a reason to distu rb the initial decision. PFR File, Tab 1 at 3. Because we agree with the administrative judge’s conclusion that the appellant failed to make a nonfrivolous allegation of jurisdiction, he is not entitled to a hearing. ID at 9; see Henderson v. Department of the Treasury , 114 M.S.P.R. 149 , ¶ 8 (2010) (observing that, if an appellant makes a nonfrivolous allegation of Board jurisd iction, he is entitled to a hearing on the jurisdictional question). Further, the appellant did not designate a representative on the initial appeal form, and his decision to proceed pro se is not a sufficient basis to disturb the initial decision. IAF, Tab 1 at 3; see Murdock v. Government Printing Office , 38 M.S.P.R. 297, 4 299 (1988) (observing that a pro se appellant may not escape the consequences of inadequate representation). ¶5 Accordingly, we affirm the initial decision . NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute , the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of availab le appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may resu lt in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appro priate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of App eals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and F orms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representatio n for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may o btain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representat ive receives this decision. If the action involves a claim of discrimination based on 6 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.u scourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If y ou have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to t he EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a metho d requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement A ct of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 7 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in sectio n 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent juri sdiction.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 r eview to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information abou t the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono represen tation 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 th e U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the cour ts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Was hington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	VISAYA_VILLAMOR_A_SF_315H_18_0099_I_1_FINAL_ORDER_2049865.pdf	2023-07-14	null	SF-315H	NP
2,906	https://www.mspb.gov/decisions/nonprecedential/DANIELS_RHONDA_L_CH_0831_18_0260_I_1_FINAL_ORDER_2049882.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD RHONDA L. DANIELS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER CH-0831 -18-0260 -I-1 DATE: July 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Rhonda L. Daniels , Champaign, Illinois, pro se. Alison Pastor , 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, whi ch dismissed as settled her appeal of the reconsideration decision by the Office of Personnel Management (OPM), which found that she had received an overpayment of $12,550.40 in Federal Employees’ Retirement System 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 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 annuity benefits.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 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 affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 In her petition for review , the appellant as serts that she has obtained new evidence that was not available to her before she signed the settlement agreement on April 10, 2018 . Petition for Review (PFR) File, Tab 1 at 4 -5. The evidence consists of a Summary of Payments , also dated April 10, 2018, recording the appellant’s gross annuity benefits, deductions, and net payments for each month of calendar year 2017. Id. at 8. According to the appellant, the document shows 2 On March 16, 2022, after the close of the record on review, the appellant filed two motions for leave to file additional pleadings. The Board’s regulations do not provide for pleadings other than a petition for review, a cross petition for review, a response to a petition for review, and a reply to a response to a petition for review. 5 C.F.R. § 1201.114 (a)(5). For the Board to consider a party’s pleading, other than one of those set forth above, the party must describe the nature and need for the pleading. Id. If a party wishes to submit a pleading after the record has closed, the party must also show that the evidence was no t readily available before the record closed. 5 C.F.R. § 1201.114 (a)(5), (k). Here, the appellant has not shown that the additional information she wishes to present is material to the outcome of this appeal or that it was not readily available before the record closed. Accordingly, the motions are denied . 3 that her ov erpayment was in fact $9,146.63, that OPM had “overpaid” the remainde r of $3,403.77 to other entities, and that she should not be required to pay the latter amount. Id. at 4 -5. In support of he r claim that the evidence was unavailable to her when she signed the agreement , the appellant provides copies of email corresponde nce with OPM ’s representative , including an April 10, 2018 email in which the appellant requested a “computation of what I received.” PFR File, Tab 8 at 5-6. The appellant indicated in that email that she had attached a copy of the signed agre ement . Id. at 6. ¶3 We find the information contained in the Summary of Payments is neither new nor material. To satisfy the requirement that information obtained after the close of the record is new, the information itself, not the document it is contained in, mus t have been unavailable despite due diligence when the record closed below. Grassell v. Department of Transportation , 40 M.S.P.R. 554 , 564 (1989); 5 C.F.R. § 1201.115 (d). The information contained in the Summary of Payments is not new because, with due diligence, the appellant could have determined before entering the settlement agreement that the net payments she received during the overpayment period reflected deductions for Federal tax withholding and Federal Employees ’ Health Benefits and Federal Employees ’ Group Life Insurance premiums. Id. The appellant has not explained why she did not request that information from OPM before signing the agreement . ¶4 In addition, the information contained in the Summary of Payments is not material because it does not change the result obtained below. See Russo v. Veterans Admin istration , 3 M.S.P.R. 345 , 349 (1980). An appellant who challenges the validity of a settlement agreement must show that the agreement is unlawful, was involuntary, or was the result of fraud or mutual mistake. Wade v. Department of Veterans Affairs , 61 M.S.P.R. 580 , 583 (1994) . Here, the appellant’s failure to request a detailed payment summary before signing the agreement is, at most, a unilateral mistake, and does not provide a basis for setting aside the agreement. See Dougherty v. Federal Deposit Insurance 4 Corporation , 52 M.S.P.R. 311, 316 (1992). The appellant contends that OPM erred in its calculation of the overpayment, but in choosing to settle her appeal, she waived her right to have the Board review the merits of OPM’s decision. See Burks v. Department of the Interior , 84 M.S. P.R. 423 , ¶ 4 (1999) , aff’d , 243 F.3d 566 (Fed. Cir. 2000) (Table). ¶5 The appellant also alleges that , contrary to the terms of the agreement, the agency erroneously collected a payment of $348.62. PFR File, Tab 1 at 4 -5. The agency has since provided evidence that it promptly refunded that amount . PFR File, Tab 7 at 7. If the appellant believes the agency is still in noncompliance with the agreement, she may file a petition for enforcement with the Central Regional Office under the procedures set for th at 5 C.F.R. § 1201. 182. NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). B y statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read 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 inclu ded 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 partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain 6 judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives t his decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. distr ict courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you ma y request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with t he EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request fo r review to the EEOC by regular U.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 describe d in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 j udicial 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 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of com petent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases w ith the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informa tion about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DANIELS_RHONDA_L_CH_0831_18_0260_I_1_FINAL_ORDER_2049882.pdf	2023-07-14	null	CH-0831	NP
2,907	https://www.mspb.gov/decisions/nonprecedential/MCALMAN_ROBERTA_J_NY_1221_17_0233_W_1_FINAL_ORDER_2049906.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ROBERTA J. MCALMAN, Appellant, v. DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER NY-1221 -17-0233 -W-1 DATE: July 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Roberta J. McAlman , Honolulu, Hawaii, pro se. Martha F. Ansty , Esquire, Essex Junction, Vermont, 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 her request for corrective action in this individual right of action appeal on the merits . On petition for review, the appellant asserts that she wishes to submit additional evidence and that one of the witnesses at the hearing gav e false testimony. 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 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 initial decision is based on an erroneous interpretation of statute or regulatio n or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the r esulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.1 15 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting 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 cour ts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing 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 w hich 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 question s about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contain ed within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono fo r information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 4 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circu it), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no lat er than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed t hrough the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you rece ive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 revi ew 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 cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MCALMAN_ROBERTA_J_NY_1221_17_0233_W_1_FINAL_ORDER_2049906.pdf	2023-07-14	null	NY-1221	NP
2,908	https://www.mspb.gov/decisions/nonprecedential/CAPCHA_LORENA_YVON_AT_0752_18_0189_I_1_FINAL_ORDER_2049947.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LORENA YVON CAPCHA, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0752 -18-0189 -I-1 DATE: July 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jacquelin e Turk -Jerido , Tuskegee, Alabama, for the appellant. W. Robert Boulware , Montgomery, Alabama, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has file d a petition for review of the initial decision, which dismissed her involuntary resignation appeal for lack of jurisdiction . On petition for review, the appellant argues that she was coerced to resign as a result of intolerable working conditions and that the agency’s response to her request to be 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 hostile work environment was inadequate. Generally , we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of materia l fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decisio n were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not a vailable when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude tha t the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review2 and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their 2 Based on this disposition, we make no finding as to the timeliness of the appellant’s appeal. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights inclu ded in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 jurisdiction. I f you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review y our case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal C ircuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 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 t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on 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 unlaw ful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), with in 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision . If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, co sts, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 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 t o the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursua nt to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a pro hibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Cir cuit 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 com petent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases w ith 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. Washing ton, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probon o for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a g iven 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 accessed through the link below: http://www.uscourts.gov/Court_Loc ator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CAPCHA_LORENA_YVON_AT_0752_18_0189_I_1_FINAL_ORDER_2049947.pdf	2023-07-14	null	AT-0752	NP
2,909	https://www.mspb.gov/decisions/nonprecedential/CAMACHO_SZETO_LISA_AT_0843_17_0601_I_1_FINAL_ORDER_2049957.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LISA CAMACHO SZETO, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER AT-0843 -17-0601 -I-1 DATE: July 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael L. Spekter , 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 ¶1 The appellant has fil ed a petition for review of the initial decision, which affirmed the reconsideration decision by the Office of Personnel Management (OPM) finding that she was not entitled to a survivor annuity based on the Federal service of her former spouse . On petitio n for review, the appellant argues 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 that her late former spouse should not have had to reelect a survivor annuity for her following their divorce and that the court orders she provided to OPM are sufficient to award her a former spouse survivor annuity . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute 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 affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. The refore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113 (b). 2 In describing when a former spouse is entitled a survivor annuity , the administrative judge cited statutory provisions applicable to the Civil Service Retirement System (CSRS), rather than the Fede ral Emplo yees Retirement System (FERS). Although not raised by either party on review, CSRS statutes are inapplicable in this appeal because the appellant’s former spouse retired under FERS. Nonetheless, t he administrative judge’s error in this regard di d not prejudice the appellant’s substantive rights because the applicable FERS provisions are essentially identical to the CSRS provisions . See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (holding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision); compare 5 U.S.C. § 8417 (b), with 5 U.S.C. § 8339 (j)(3); compare 5 U.S.C. § 8419 (b)(1)(B), with 5 U.S.C. § 8339 (j)(5)(A)(i i); compare 5 U.S.C. § 8445 (a), with 5 U.S.C. § 8341 (h)(1). 3 NOTICE OF APPEAL RIGHTS3 You may obtain rev iew of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situati on and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rul e, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for 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 noti ce, 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 t he court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Fe deral Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any att orney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this d ecision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 5 requirement of prepayment of f ees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the E EOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to t he Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 6 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Fed eral 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,” whic h is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.go v/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representatio n 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 Cir cuit or any other circuit court 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/C ourt_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CAMACHO_SZETO_LISA_AT_0843_17_0601_I_1_FINAL_ORDER_2049957.pdf	2023-07-14	null	AT-0843	NP
2,910	https://www.mspb.gov/decisions/nonprecedential/WESTMORELAND_JAMILLIA_AT_315H_18_0143_I_1_FINAL_ORDER_2049983.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JAMILLIA WESTMORELAN D, Appellant, v. DEPARTMENT OF THE TR EASURY, Agency. DOCKET NUMBER AT-315H -18-0143 -I-1 DATE: July 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jamillia Westmoreland , Memphis, Tennessee, pro se. Ariya McGrew , Esquire, New York, New York, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her probationary termination appeal for lack of jurisdiction. On petition for review, the appellant renews her argument that the absences underlying her termination were beyond her control, and she surmises 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 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 agency may have treated her more harshly th an some other probationary employees who had excessive absences . She has filed some documentary evidence in support of her petition. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains errone ous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s d ue diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting 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 cour ts 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 w hich option is most appropriate in any matter. 3 immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have question s about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contain ed within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono fo r information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 Circu it), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no lat er than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed t hrough the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you rece ive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 c hallenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 is suance 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 cou rt 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 a t the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	WESTMORELAND_JAMILLIA_AT_315H_18_0143_I_1_FINAL_ORDER_2049983.pdf	2023-07-14	null	AT-315H	NP
2,911	https://www.mspb.gov/decisions/nonprecedential/WILSON_PEGGYE_SF_0752_21_0330_I_2_FINAL_ORDER_2049279.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD PEGGYE WILSON, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER S SF-0752 -21-0330 -I-2 SF-1221 -21-0329 -W-21 DATE: July 13, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL2 Peggye Wilson , APO, APO/FPO Pacific, pro se. Amos N. Jones , Esquire, Washington, D.C., for the appellant. Holly Kay Botes , Esquire, APO, APO/FPO Pacific, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member 1 We have joined these two appeals on review based on our determination that joinder will expedite processing of the cases and will not adversely affect the interests of the parties. 5 C.F.R. § 1201.36 (b). 2 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 FINAL ORDER ¶1 The appellant has filed petition s for review of the initial decision s, which dismissed for lack of jurisdiction her involuntary retirement and individual right of action (IRA) appeals. In her petitions for review , she argues that the administrative judge erred in finding that she failed to nonfrivolously allege that her retirement was involuntary and that she made protected disclosures or engaged in protected activity pursuant to 5 U.S.C. § 2302 (b)(8), (9) . Wilson v. Department of Defense , MSPB Docket No. SF -0752 -21-0330 -I-2, Petition for Review (I -2 PFR) File, Tab 1; Wilson v. Department of Defense , MSPB Docket No. SF -1221 -21-0329 -W-2, Petition for Review (W -2 PFR) File, Tab 1 . Generally, we grant petitions such as th is one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulatio n or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the r esulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.1 15 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in th ese appeal s, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition s for review. Therefore, we DENY the petition s for review and AFFIRM the initial decision s, which are now the Board’s final decision s. 5 C.F.R. § 1201.113 (b). ¶2 The administra tive judge correctly found that the appellant failed to nonfrivolously allege or show that her retirement was involuntary. Wilson v. Department of Defense , MSPB Docket No. SF -0752 -21-0330 -I-2, Appeal File (I-2 AF), Tab 14, Initial Decision (I -2 ID) at 10-14. We similarly agree with the administrative judge that the appellant failed to nonfrivolously allege that she 3 made a protected disclosure or engaged in protected activity pursuant to 5 U.S.C. § 2302 (b)(8), (9). Wilson v. Department of Defense , MSPB Docket No. SF -1221 - 21-0329 -W-2, Appeal File (W -2 AF), Tab 16, Initial Decision (W -2 ID) at 10-15. The appellant’s arguments on review , which amount to mere disagreements with the administrative judg e’s findings, do not provide a basis to disturb the initial decisions in this regard. ¶3 The appellant argues in both petitions for review that the administrative judge abused her discretion by refusing to accommodate her counsel’s religious observances whe n she denied requests for an extension of time to initiate discovery and file a jurisdictional briefing , which she filed in both proceedings below , respectively . I-2 PFR File, Tab 1 at 4; W-2 PFR File, Tab 1 at 4. The appellant’s request was due to disruptions to her home life and the “supervening commitments” of her counsel, including his commitment to his church and the Easter holiday. I -2 AF, Tab 5; W -2 AF, Tab 7. The administrative judge denied the request for a 6 -month extension. I -2 AF, Tab 8; W -2 AF, Tab 10. ¶4 An administrative judge has wide discretion to control the proceedings in front of her, and specifically, to rule on motions. See 5 C.F.R. § 1201.41 (b)(8) . Here, it is undisputed that, although the administrative judge denied the appellant’s request for a 6-month extension, she granted a 7 -day extension based on the appellant’s explanation of good cause. I -2 AF, Tab 8; W -2 AF, Tab 10. Further, following the 7 -day e xtension, the administrative judge also granted an additional 8 -day extension. I -2 AF, Tab 11; W -2 AF, Tab 13. On review, the appellant has not explained how these extensions failed to account for her counsel’s religious observance . Accordingly, this ar gument does not provide a basis to disturb the initial decision s. ¶5 The appellant also argues on review that the prior dismissals of her appeals without prejudice constituted an abuse of discretion and resulted in the loss of her requested hearing. I -2 PFR File, Tab 1 at 4; W -2 PFR File, Tab 1 at 4. We acknowledge that the administrative judge dismissed the appeals without 4 prejudice while the Board resolved the issues presented in Lucia v. Securities Exchange Commission , 138 S. Ct. 2044 (2018), and that the appeals were not refiled until approximately 1 year later. The appellant has not shown that any delay in the refiling of her appeals caused the loss of the requested hearin gs. Regarding her involuntary retirement claim, an appellant has a right to a hearing when she makes nonfrivolous allegations of Board jurisdiction. See Garcia v. Department of Homeland Security , 437 F.3d 1322 , 1344 (Fed. Cir. 2006) . Regarding her IRA appeal, an appellant is entitled to a hearing on the merits when she proves that she exhausted her administrative remedy with the Office of Special Counsel and makes nonfrivolo us allegations that she engaged in protected activity that was a contributing factor in a personnel action. See Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434 , ¶ 22 (2016) . Based on the administrative judge’s findings and our agreements therewith as stated in thi s decision, the appellant failed to show that she was entitled to a hearing in either matter. ¶6 Accordingly, we affirm the initial decisions. 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 and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failur e to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questi ons about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov /probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives t his decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. distr ict courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you ma y request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with t he EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request fo r 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 describe d in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 j udicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informa tion about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	WILSON_PEGGYE_SF_0752_21_0330_I_2_FINAL_ORDER_2049279.pdf	2023-07-13	null	S	NP
2,912	https://www.mspb.gov/decisions/nonprecedential/LONG_PAMELA_CH_1221_18_0286_C_1_FINAL_ORDER_2049422.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD PAMELA LONG, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER S CH-1221 -18-0286 -C-1 CH-1221 -18-0286 -W-1 DATE: July 13, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Pamela Long , Humboldt, Tennessee, pro se . Beth K. Donovan , St. Louis, Missouri, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed petition s for review of the initial decision s in these appeals , which dismissed her individual right of action (IRA) appeal as settled, and dismissed her petition for enforcement of that settlement agreement . Generally, we grant petitions such as these only in the following circumstances: 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; t he administrative judge ’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner ’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in these appeals, we JOIN them for adjudication on rev iew under 5 C.F.R. § 1201.36 .2 We conclude that the petitioner has not established any basis under section 120 1.115 for granting the petition for review in her compliance appeal , MSPB Docket No. CH -1221 -18-0286 -C-1. Therefore, we DENY the petition for review in that appeal and AFFIRM the initial decision , which is now the Board ’s final decisi on on the appellant ’s petition for enforcement . 5 C.F.R. § 1201.113 (b). The appellant ’s petition for review of the initial decision dismissing as settled her IRA appeal, MSPB Docket No . CH- 1221 -18-0286 -W-1, is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g). BACKGROUND ¶2 The agency removed the appell ant from her position as a GS -11 Perfusionist , and she filed an appeal . Long v. Department of Veterans Affairs , MSPB Docket No. CH -0714 -18-0223 -I-1, Initial Appeal File, Tab 1. The agency subseq uently rescinded her removal , and the administrative judge dismi ssed the 2 Joinder of two or more appeals filed by the same appellant is appropriate when doing so would expedite processing of the cases and not adversely affect the interests of the parties. Tarr v. Department of Veterans Affairs , 115 M.S.P.R. 216 , ¶ 9 (2010); 5 C.F.R. § 1201.36 (a)(2), (b). W e find that these appeals meet the regulatory criteria, and therefore join them. See Tarr , 115 M.S.P.R. 216, ¶ 9. 3 appeal as moot. Long v. Department of Veterans Affairs , MSPB Docket No. CH - 0714 -18-0223 -I-1, Initial De cision (0223 ID) (June 12, 2018) . Th at initial decision became the Board ’s final decision when neither party filed a petition for review by July 17, 2018. 0223 ID at 4; see 5 C.F.R. § 1201.113 (a). ¶3 The appellant also filed an IRA appeal. Long v. Department of Veterans Affairs , MSPB Docket No. CH -1221 -18-0286 -W-1, Initial Appeal File ( IAF), Tab 1. The parties reached a settlement agreement in that matter . IAF, Tab 14. The administrative judge found that the a greement was lawful on its face and that the parties had freely entered into it, understood its terms, and intende d to have the agreement entered into the record for enforcement purposes. IAF, Tab 16, Initial Decision (ID). She accepted the settlement agreement into the record for enforcement purposes and dism issed th e appeal as settled. Id. That initial decision became the Board ’s final decision when neither party filed a petition for review by August 20, 2018. Id. at 4; see 5 C.F.R. § 1201.113 (a). ¶4 On November 25, 2018, the appellant filed a petition for enforcement of the parties ’ settlement agreement. Long v. Department of Veterans Affairs , MSPB Docket No. CH -1221 -18-0286 -C-1, Compliance File ( CF), Tab 1. She alleged the following : (1) the agency and her attorneys induced her to sign the settlement agreement through fraud, misrepresentation, and/or a threat to withdraw or alter the terms of the agreement ; and (2) the agency breached the agreement when it failed to provide her a neutral employment reference, resulting in four nonselections for agency positions . CF, Tab 13 at 1-2.3 ¶5 The administrative judge dismissed the appellant ’s petition for enforcement, finding that the appellant was not coerced into signing the agreement. CF, Tab 26, Compliance Initial Decision (CID) at 5-7. She rejected the appellant ’s argument that the statutory revocation provisions of the Age Discrimination in 3 The appellant also alleged that the agency had failed to reinstate her health, dental, life, and vision insurance. CF , Tab 1 at 4, Tab 13 at 2. She withdrew these claims at the close of record conference , asserting that they were resolved. C F, Tab 13 at 2. 4 Employment Act (ADEA) or the Older Workers ’ Benefits Protection Act (OWBPA) applied in this case because there was no age discrimination claim set forth in the underlying IRA app eal. CID at 7 -8. Alternatively, the administrative judge found that, even if the ADEA/OWBPA applied, the appellant did not revoke her agreement during the statutory revocation period . CID at 8. As to the appellant ’s allegation that the agency had violated the provision requiring it to give her a neutral employment reference, the administrative judge found that the appellant failed to demonstrate that the agency was not in material compliance . CID at 8 -10. Lastly, regarding th e timeliness of the petition for enforcement, the administrative judge found that the appellant had filed her petition within a reasonable amount of time after she became aware of the agency ’s alleged breach. CID at 10. In her compliance petition for rev iew, the appellant repeats her contentions that the agency and her attorneys coerced her into signing the settlement agre ement, she attempted to revoke the agreement during the ADEA /OWBPA revocation period, and the agency violated the neutral reference clause of their agreement. Compliance Petition f or Review (CPFR) File , Tab 1 at 5. The agency has filed a response to the appellant ’s compliance petit ion for review. CPFR File, Tab 6. ¶6 Because it was unclear whether the appellant ’s compliance petition for review also applied to the initial decision dismissing her underlying IRA appeal as settled, the Office of the Clerk of the Board sent the appellant a letter to determine her intent. CPFR File, Tab 4. Instead of responding to the letter from the Clerk ’s Office , the appellant filed a petition for review of the initial decision dismissing her underly ing IRA appeal as settled. Petition for Review ( PFR) File, Tab 1. Because the petition for review was not received by the date t hat the initial decision in t he appellant ’s IRA appeal became final, i.e., August 20, 2018, the Clerk ’s Office gave her notice that she must file a motion to (1) accept the filing as timely and/or (2) waive the time limit for good cause. PFR File, Tab 2 at 2; ID at 4. In her timelin ess motion, the appellant essentially reiterates the 5 allegations set forth in her compliance appeal. PFR File, Tab 3 at 4-8. She does not address the timeliness of her petition for review.4 DISCUSSION OF ARGUME NTS ON REVIEW The appellant failed to show that the administrative judge erred in denying her petition for enforcement . ¶7 The Board will enforce a settlement agreement that was entered into the record in the same manner as a final Board decision or order. Allen v. Department of Veterans Affairs , 112 M.S.P.R. 659 , ¶ 7 (2009), aff’d, 420 F. App’x 980 (Fed. Cir. 2011). In response to an appellant ’s allegations of noncompliance, the agency must produce relevant material evidence of its compliance with the agreement, or show that there was good cause for noncompliance. Id. The ultimate burden, however, remains with the appellant to prove breach by a preponderance of the evidence. Id. ¶8 The appellant alleged in her petition for enforcement that the agency breached the requirement for it to give her a neutral employ ment referenc e. CF, Tab 4 at 3 . Specifically, she alleged that a nurse practitioner, as well as several agency physicians and human resource officers , had communicated with the four 4 After the close of the record on review, t he appellant filed a motion to accept new evidence. PFR File, Tab 10 at 4 ; see 5 C.F.R. § 1201.114 (k). Pleadings allowed on review include a petition for review, a cross petition for review, a response to a petition for review, a respons e to a cross petition for review, and a reply to a response to a petition for review. 5 C.F.R. § 1201.114 (a). A motion to accept a pleading other than those listed must describe the na ture of and need for the pleading. 5 C.F.R. § 1201.114 (a)(5). The appellant contends the new evidence, which concerns the merits of her IRA appeal, was not available until October 2019. PFR File, Tab 10 at 4. Under 5 C.F.R. § 1201.114 (k), evidence submitted after the close of the record on review must be new and material as defined in 5 C.F.R. § 1201.115 (d). Nevertheless, e ven if we credit the appellant’s assertion that the evidence was unavailable despite h er due diligence when the record closed , the evidence is not material to the outcome in this case because it does not address the dispositive issue s, i.e., the timeliness of the appellant’s petition for review of the initial decision dismissing her IRA appeal as settled , and the agency’s compliance with that settlement agreement . See 5 C.F.R. §§ 1201.114(k), 1201.115(d). Because the appellant fails to show that her new evidence is material , we deny her motion . Id. 6 agency medical centers where she had applied for employment. CF, Tab 10 at 10, 12-13. Although the appe llant contended that agency officials made slanderous , defamatory statements that accused her of the inability to perform the duties of her position, she failed to identify who made the alleged slanderous statements or the exact content of their statements . Id. In her compliance petition for review, the appellant merely restates her allegations that unnamed agency employees and officials contacted other agency medical centers and made slanderous statements about her. CPFR File, Tab 1 at 5. ¶9 As noted above, the administrative judge found that the appellant did not show that the agen cy failed to comply with the requi rement that it give her a neutral reference. CID at 9-10. For the following reasons, w e agree. The unrebutted declaration of the Human Resource Officer designated in the settlement agreement to field employment inquiries showed that she had not received an employment inquiry about the appellant . CID at 9 ; CF, Tab 11 at 23-25. The unrebutted declaration of the nurse practitioner named by the appellant as having communicated with potential employ ers stated that she had not spoken with anyone outside the appellant ’s facility about the appellant since April 2017 , which was long before the July 7, 2018 execution of the parties ’ settlement agreement and therefore could not have violated it . CF, Tab 2 3 at 21. ¶10 The appellant ’s compliance petition for review provides no further de tails about the alleged slanderous statements. CPFR File, Tab 1. Given the lack of detail in her allegations, w e agree with t he administrative judge that the appellant ’s allegations constitute mere speculation . CID at 10. We also agree with the administrative judge that the appellant ’s nonselection for the positions at issue does not in and of itself demonstrate that the agency violated the neutral reference provision. Id. Thus, we affirm the administrative judge ’s finding that the appellant failed to show that the agency violated its obligation to give her a neutral employment reference. CID at 8 -10. 7 ¶11 As prev iously noted , in her petition for enforcement, the appellant also argued that the s ettlement agreement was invalid . CF, Tab 12 at 3. The administrative judge addressed the appellant’s contentions regarding the validity of the settlement agreement in the compliance initial decision. CID at 5 -8. An attack on the validity of a settlement agreement must be made in the form of a petition for review of the initial decision dismissing the appeal as settled. Weldon v. Department of Veterans Affairs , 119 M.S.P.R. 478 , ¶ 5 (2013). Thus, the administrative judge arguably erred when she analyzed the appellant’s contentions concerning the va lidity of the settlement agreement in adjudicating the petition for enforcement. Any such error, however, does not provide a basis for reversing the compliance initial decision. The administrative judge correctly found that the appellant failed to show t hat the agency breached the settlement agreement. ¶12 Moreover, as discussed above, the Clerk’s Office sent the appellant a letter to determine whether , in filing her petition for review of the compliance initial decision, she also sought to challenge the in itial decision dismissing her underlying IRA appeal as settled. CPFR File, Tab 4. F ollowing the letter from the Clerk’s Office , the appellant filed a petition for review of the initial decision dismissing her IRA appeal as settled. PFR File, Tab 1. Therefore , the appellant has been provided with the opportunity to challenge the validity of the settlement agreement in the proper context —namely, in a petition for review of the initial decision dismissing her appeal as settled . See Weldon , 119 M.S.P.R. 478 , ¶ 5. The appellant ’s petition for review of the initial decision dismissing her IRA appeal as settled was untimely filed wi thout good cause shown for the delay . ¶13 The appellant alleg ed that the agency and her attorneys induced her into signing the settlement agreement through fraud, misrepresentation, and/or threats to withdraw or alter its terms. CF, Tab 1, Tab 10 at 4 -5, 10-12, Tab 12 at 3 ; CPFR, Tab 1 at 5 . As noted above, in response to the letter from the Clerk’s Office inquiring whether her compliance petition for review also challenged the 8 initial decision dismissing her IRA appeal as settled, the appellant filed a petit ion for review of the initial decision dismissing her IRA appeal as settled. CPFR File, Tab 4; PFR File, Tab 1. For the following reasons, we find that the appellant ’s petition for review was untimely filed without good cause shown for the delay. ¶14 An appellant may challenge the validity of a settlement agreement if she believes it was unlawful, involuntary, or the result of fraud, coercion, misrepresentation, or mutual mistake. Miller v. Department of the Army , 112 M.S.P.R. 689 , ¶ 10 (2009) . Even if the invalidity is not apparent at the time of settlement, the settlement agreement must be set aside if it is subsequently show n, by new evidence , that the agreement is invalid. Weldon , 119 M.S.P.R. 478, ¶ 5. However, once an appellant discovers evidence that she claims establishes a valid reason to set aside the agreement, she must act with due diligence to file a petition for review with the Board or her petition for review will be dismissed as untimely filed. See Armstrong v. Department of the Treasury , 115 M.S.P.R. 1 , ¶ 5 (2010) (finding that the filing of a petition for review less than 3 weeks after becoming aware of th e ba sis of a valid reason to set aside the settlement agreement was diligent) , aff’d, 438 F. App ’x 903 (Fed. Cir. 2011). ¶15 The acknowledgment letter for the appellant ’s petition for review informed her that her petition was untimely filed because the July 16, 2018 initial decision dismissing her IRA appeal as settled became final on August 20, 2018. PFR File, Tab 2 at 2. As instructed in the acknowledgment letter, the appellant filed a motion to accept the filing as timely or waive the filing deadline for goo d cause, but, as noted above, she did not address the timeliness issue. PFR File, Tab 3. Instead, she argued the merits of her petition for review, reiterating her general allegati ons of fraud, misrepresentation, and/or threat, and contending that , on July 9, 2018, her attorneys prevented her from revoking or withdrawing her approval of the settlement agreement. Id. at 4-5. 9 ¶16 The appellant ’s claim that the settlement agreement is invalid is premised on two distinct contentions. First, she alleged that the agency threatened to withdraw or alter the terms of the agreement if she did not sign it within 24 hours. CF, Tab 10 at 10; PFR File, Tab 1 at 8. Second, she argued that she tried to revoke the settlement agreement during the 7 -day revocation p eriod provided under the ADEA/OWBPA , but her attorney would not allow it . CF, Tab 10 at 4-5, 9-12; PFR File at 5 -6, 8-9. Because the record reflects that the appellant discovered the evidence that she claims provides a valid reason to set aside the parti es’ settlement agreement in July 2018, and did not file the petition for enforcement in which she first made these arguments until November 2018, we find that her petition for review of the initial decision dismissing her IRA appeal as settled was untimely filed without good cause shown. ¶17 As noted above , the appellant a rgued that the parties ’ settlement agreement was invalid because the agency or her attorneys coerced her into signing the agreement, and would not allow her to revoke it. CF, Tab 1 at 4, Tab 10 at 4-5, 9-12, Tab 12 at 3, Tab 22 at 30, 36 -38, 40 -42, 137 . She consistently claimed therein that this happened between July 6 and 11, 2018. CF, Tab 1 at 4, Tab 10 at 4-5, 9-12, Tab 12 at 3, Tab 22 at 30, 36 -38, 40 -42, 137. The appellant made the same contentions in her petition for review of the initial decision dismissing her IRA appeal as settled. PFR File, Tab 1 at 5-22, 87 . Thus, the record shows that she discovered a n allegedly valid reason to set aside the settlement agreement no later th an July 11, 2018. The administrative judge issued the initial decision dismissing the appellant ’s IRA appeal as settled on July 16, 2018, and it became final on August 20, 2018. ID at 4; see 5 C.F.R. § 1201. 113(a). However , the appellant filed her petition for enforcement , in which she first argued that the settlement agreement was invalid, on November 25, 2018 —98 days after the initial decision became final . CF, Tab 1. ¶18 Waiting to challenge the settlement agreement as invalid for over 3 months after the initial decision became final, where the record shows that she discovered 10 the evidence that she claims established a valid reason to set aside t he agreement within days after sign ing the agreement , does not show diligence . See Hawley v. Social Security Administration , 108 M.S.P.R. 587, ¶ 5 (2008) (finding tha t a delay of 4 months after discovering evidence of an unexpected change in a settlement agreement and a further delay of 2 months following an uns uccessful attempt to resolve that discrepancy before filing a petition challenging the validity of the agreem ent was not diligent) ; Nichols v. Department of the Air Force , 102 M.S.P.R. 551 , ¶ 9 (2006) (finding that an appellant failed to show good cause for the late filing of her petition for review where she claimed she was waiting for documen ts from a Freedom of Information Act request , yet still waited 3 months after receiving those document s before filing it ), aff’d, 253 F. App’x 961 (Fed. Cir. 2007) ; Fritz v. Department of the Air Force , 59 M.S.P.R. 87 , 89-90 (finding that an appellant did not estab lish that he acted with diligence where evidence showed that he became aware of the agency ’s alleged misrepresentation regarding a settlement agreement 2 months prior to filing his petition for review) ; Saunders v. Department of the Interior , 56 M.S.P.R. 671, 673 -74 (1993) ( finding that an appellant did not show due diligence or ordinary prudence where he delayed for 8 weeks before raising the agency ’s alleged misrepresentation in relat ion to a settlement agreement); cf. Armstrong , 115 M.S.P.R. 1 , ¶ 5 (finding a petiti on filed less than 3 weeks after the discovery of evidence establishing a valid reason to set aside the agreement was diligent ly filed ). Accordingly, we dismiss the appellant’s petition for review of the initial decision that dismissed her IRA appeal as s ettled because we find that it was untimely filed without good cause shown for the delay. ORDER ¶19 The initial decision on the appellant’s petition for enforcement constitutes the Board’s final decision in that matter. 5 C.F.R. § 1201.113 . This is the final decision of the Merit Systems Protection Board regarding the timeliness of the 11 petition for review of the initial decision dismissing the appellant’s IRA appeal as settled . The initial decision in that appeal remains the final decision of the Board regarding the appellant’s IRA appeal . Id. NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S. C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer th e following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule rega rding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for rev iew with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 12 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the cou rt’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prote ction Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 13 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for rev iew to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhan cement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 14 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice descri bed in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 fo r judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional info rmation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 6 The original statutory provision that provi ded for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file pet itions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to Novem ber 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 15 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR TH E BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	LONG_PAMELA_CH_1221_18_0286_C_1_FINAL_ORDER_2049422.pdf	2023-07-13	null	S	NP
2,913	https://www.mspb.gov/decisions/nonprecedential/STOCKWELL_PAUL_CH_4324_17_0314_I_2_FINAL_ORDER_2049458.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD PAUL STOCKWELL, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER CH-4324 -17-0314 -I-2 DATE: July 13, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Brian J. Lawler , Esquire, San Diego, California, for the appellant. Kevin B. Marsh , Esquire, and Megan E. Gagnon , Esquire, Detroit, Michigan, for the agency. BEFORE Cathy A. Harris, Vice Ch airman 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 under the Uniform ed Services Employment and Reemployment Rights Act of 1994 (USERRA). 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 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 decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material ev idence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition fo r review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to apply the U.S. Court of Appeals for the Federal Circuit’s decision in Adams v. Department of Homeland Security , 3 F.4th 1375 (Fed. Cir. 2021), we AFFIRM the initial decision. DISCUSSION OF ARGUME NTS ON REVIEW ¶2 Generally, an employee making a USERRA claim under 38 U.S.C. § 4311 must show that (1) he was denied a benefit of employment, and (2) his military service was a substantial or motivating factor in the denial of such a benefit. Sheehan v. Department of the Navy , 240 F.3d 1009 , 1013 (Fed. Cir. 2001). However, in a case such as this one, whe n the benefit in question is available only to members of the military, it is unnecessary for th e employee to make an additional showing that his military service was a substantial or motivating factor. See Adams , 3 F.4th at 1377 -78; Butterbaugh v. Department of Justice , 336 F.3d 1332 , 1336 (Fed. Cir. 2003). Thus, the only issue to be decided in this case is whether the appellant was entitled to differential pay under 5 U.S.C. § 5538 (a) as a benefit of employment. ¶3 Section 5538 (a) provides, in relevant part: An employee who is absent from a position of employment with the Federal Government in order to perform active duty in the uniformed 3 services pursuant to a call or order to act ive duty under . . . a provision of law referred to in section 101(a)(13)(B) of title 10 shall be entitled [ to differential pay]. The provisions of law listed in 10 U.S.C. § 101 (a)(13)(B) in turn d efine the term “contingency operation.” Accordingly, our reviewing court has recently concluded that for a claimant to be entitled to differential pay under 5 U.S.C. § 5538 (a), the claimant “must have served pursuant to a call to active duty that meets the statutory definition of contingency operation .” Adams , 3 F.4th at 1378 . For the following reasons, we find that none of the periods of service at issue qualifies as active duty in a contingency operation. ¶4 First, some of the periods of service for which the appellant claims an entitlement to differential pay do not qualify as “active duty” for purposes of 5 U.S.C. § 5538 (a). Active dut y is defined as “full -time duty in the active military service of the United States,” but does not include “ full-time National Guard duty ” under 32 U.S.C. §§ 316 , 502, 503, 504, or 505. See 10 U.S.C. § 101(d)(1) , (5). The appellant’s military orders reflect that, during the periods from July 1 through October 26, 2009; September 2 through December 30, 2013; and May 23 through June 4, 2016, he was serving full -time National Guard duty under the authority of 32 U.S.C. §§ 503 , 504, and/or 505. Stockwell v. Department of Homeland Security , MSPB Docket No. CH-4324 -17-0314 -I-1, Initial Appeal File (IAF), Tab 11 at 27 -32, 40 -46, 55 -57. Hence, none of these periods of service constitutes “active duty” that could qualify the appellant for differential pay under 5 U.S.C. § 5538 (a). ¶5 For the remaining periods at issue, March 26 through April 19, 2011; January 11 through May 21, 2016; and June 5 through August 1, 2016, the appellant was not entitled to differential pay because his service was not in a “contingency operation” as required under 5 U.S.C. § 5538 (a). As relevant here, 10 U.S.C. §101 (a)(13)(B) defines the term “contingency operation” to include: [A] military operation that . . . results in the call or order to, or retention on, active duty of members of the uniformed services under 4 section 688, 12301(a), 12302, 12304, 12304a, 12 305, or 12406 of this title, chapter 13 of this title, section [3713] of title 14, or any other provision of law during a war or during a national emergency . Id. In this case, the appellant was ordered to active duty under 10 U.S.C. § 12301 (d), which is not one of the specific provisions listed in the definition. IAF, Tab 11 at 33 -36, 47 -53, 58 -61. ¶6 The appellant argues that the service nonetheless falls under the “catch -all” provision of 10 U.S.C. § 101(a)(13)(B), as he was called to active duty “under a provision of law,” namely 10 U.S.C. § 12301 (d), and a national emergency has been in effect since S eptember 11, 2001. Petition for Review File, Tab 1 at 10; see Continuation of the National Emergency with Respect to Certain Terrorist Attacks, 84 Fed. Reg. 48545 (Sept. 12, 2019) (declaration of the President continuing the national emergency for the year 2019 -2020). He correctly observes that o ur reviewing court has held that the use of the term “any” indicates that the list of statutory provisions is nonexhaustive and that the phrase “other provision[s] of law” should be interpreted broadly. O’Farrell v. Department of Defense , 882 F.3d 1080 , 1084 -85 (Fed. Cir. 2018). ¶7 However, the court has declined to read the statute so expansively that any reservist called to duty during a nationa l emergency would be deemed to be performing a contingency operation. Adams , 3 F.4th at 1379 ; see O’Farrell , 882 F.3d at 1086 n.5 (explaining that not all reservists called to active duty during a national emergency are acting in support of a contingency operation). Rather, the court has found that the term “any other provision of law” must be read in the context of the enumerated statutes listed in 10 U.S.C. § 101(a)(13)(B), which all involve som e connection to the declared national emergency. Adams , 3 F.4th at 1380 (citing 10 U.S.C. §§ 688 (c), 123 01(a), 12302, 12304, 12305, 12406 ; 10 U.S.C. chapter 13 ; 14 U.S.C. § 3713 ). The court observed that, in contrast to the enumerated statutes, 10 U.S .C. § 12301 (d) makes no reference to a nationa l emergency, but authorizes the activation of reservists “at any 5 time . . . with the consent of that member.” Applying the principle of esjudem generis ,2 the court concluded that it was “implausible that Congress intended for the phrase ‘any other provisi on of law during a war or national emergency’ to necessarily include § 12301(d) voluntary duty that was unconnected to the emergency at hand.”3 Adams , 3 F.4th at 1380. Here, as in Adams , the appellant has not alleged a connection between his service and the declared national emergency. See id .; cf. O’Farrell , 882 F.3d at 1087 -88 (finding that the petitioner, who was called to active duty under 10 U.S.C. § 12301 (d) to replace a member of the Navy who had been deployed to Afghanistan, was serving indirectly in support of a contingency operation and thus qualified for military leave benefits under 5 U.S.C. § 6323 (b), which apply to reservists called to active duty “in support of a contingency operation”). ¶8 In sum, we find the appellant was not serving active duty in a contingency operation, as required under 5 U.S.C. § 5 538(a), for any of the periods of service at issue. Because the appellant has not shown that he was entitled to differential pay as a benefit of employment, we affirm the initial decision except as modified herein. 2 Under the principle of esjudem generis , “[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Circuit City Stores, Inc. v. Adams , 532 U.S. 105 , 114 (2001 ) (quoting 2A N. Singer, Sutherland on Statutes and Statutory Construction , § 47.1 7 (1991)). 3 The court further observed that it s reading of the statute is consistent with the Office of Personnel Management guidance, which generally provides that duty qualifying for differential pay “does not include voluntary active duty under 10 U.S.C. § 12301 (d).” Adams , 3 F.4th at 1380 (quoting OPM Policy Guidance Regarding Reservist Differential under 5 U.S.C. § 5538 , at 18 (available at https://www.opm.gov/policy - data-oversi ght/pay -leave/pay -administration/reservist -differential/policyguidance.pdf) ). 6 NOTICE OF APPEAL RIG HTS4 The initial dec ision, 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 repre sent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits a nd requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a fin al Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitione rs and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prote ction Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 8 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, cos ts, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decis ion. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 9 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohi bited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circu it 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 contai ned within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono f or information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a give n case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locato r/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	STOCKWELL_PAUL_CH_4324_17_0314_I_2_FINAL_ORDER_2049458.pdf	2023-07-13	null	CH-4324	NP
2,914	https://www.mspb.gov/decisions/nonprecedential/LYNN_DANIEL_SF_0714_17_0702_I_1_FINAL_ORDER_2048962.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DANIEL LYNN, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER SF-0714 -17-0702 -I-1 DATE: July 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Brook L. Beesley , Alameda, California, for the appellant. Nadine Scott , Seattle, Washington, 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 from Federal service pursuant to the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L. No. 115 -41, § 202(a), 131 Stat . 862, 86 9-73 1 A nonprecedential order is one that the Board has dete rmined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions . In contrast, a precedential decision issued as an Opinion and 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 (codified as amended at 38 U.S.C. § 714). For the reasons discussed below, we GRANT the petition for review and REVERSE the administrative judge’s decision to sustain the removal action . The appellant ’s removal is REVERSED. We AFFIRM the initial decision as to the appellant’s affirmative defenses except as MODIFIED to apply the correct standard to his equal employment opportunity (EEO) reprisal claim. BACKGROUND ¶2 On August 15, 2017, the agenc y issued a notice proposing to remove the appellant from his GS -06 Police Officer position with the agency ’s Mann -Grandstaff Veterans Affairs Medical Center (Spokane Medical Center), pursuant to 38 U. S.C. § 714, based on two charges: (1) entering inaccurate information into a Government record (nine specifications); and (2) inappropriate conduct (two specifications). Initial Appeal File (IAF), Tab 1 at 1, Tab 6 at 30-33. In support of the first c harge, the agency alleged that on nine occasions from November 11, 2016, to April 15, 2017, the appellant made entries in his VA Daily Operations Journal (DOJ) claiming that he was conducting official police business; however, Internet Protocol (IP) logs f or the appellant ’s network account showed that he was using the internet on his VA computer during the relevant timeframes. IAF, Tab 6 at 30 -31. In support of the second charge, the agency alleged that on January 26, 2017, the appellant improperly treate d a VA employee as a suspect while investigating the alleged theft of a gift card that the employee had purchased. Id. at 31 -32. ¶3 The proposal informed the appellant of his right to reply to the proposed removal orally , or in writing , or both, and that he had until the close of business 7 business days after his receipt of the notice to reply. Id. at 33. The notice also advised the appellant that he could make arrangements for an oral reply by telephoning the secretary for the Interim Medical Center Direc tor (Director), and that the agency would issue a written decision within 15 business days of the date 3 the appellant received the proposal notice. Id. Attached to the notice was the evidence upon which the proposal was based. Id. at 34 -118. ¶4 On August 17, 2017, the appellant ’s representative sent the Director a letter via facsimile requesting to make an oral or written response to the proposal notice. Id. at 26 -28. In his letter, the appellant ’s representative asked for all material relied on to suppo rt the propos al notice and requested that the deadline for responding to the notice be extended to 20 days from his receipt of that information. Id. at 27. He also asked the Director to notify his scheduling staff of her availability in order to make arrangements for the appellant ’s reply. Id. ¶5 The following day, the Director ’s secretary sent the appellant an email acknowledging receipt of his repres entative ’s letter and asking the appellant to follow the instructions in the packet he was provided. Id. at 25. Specifically, she instructed the appellant to contact her directly to schedule an oral reply because she was not authorized to “work through [ the appellant ’s] attorney ” to schedule the reply. Id. The Director ’s secretary also stated that the meeting must take place within the timeframe set forth in the proposal notice. Id. The Director ultimately granted the appellant a 1 -day extension of th e deadline for providing a reply, IAF, Tab 1 at 19; however, the appellant did not submit either an oral or a written response to the proposal notice, IAF, Tab 6 at 18. ¶6 On September 5, 2017, the agency issued a decision removing the appellant from his posi tion effective the same day. IAF, Tab 13 at 18 -20. The appellant filed a Board appeal challenging his removal. IAF, Tab 1. He initially requested a hearing, id. at 2, but subsequently withdrew his request , IAF, Tab 22. He raised affirmative defenses o f retaliation for protected EEO activity, reprisal for whistleblowing, and a violation of his right to due process. IAF, Tab 1 at 3, Tab 26 at 5. He also argued that he was not covered by 38 U.S.C. § 714 and, therefore, the agency erred by removing him under that provision. IAF, Tab 1 at 3, Tab 26 at 2 -3. 4 ¶7 Based on the parties ’ written submissions, the administrative judge issued an initial decision affirming the appellant ’s removal. IAF, Tab 27, Initial Decision (ID) at 2, 21. The administrative judge found that the agency proved both charges by substantial evidence, ID at 7 -15, and that the appellant failed to prove his affirmative defenses, ID at 15 -21. ¶8 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a response in opposition to the petition, and the appellant has replied to the agency ’s response . PFR File, Tabs 3, 4. DISCUSSION OF ARGUME NTS ON REVIEW ¶9 The administrative judge concluded that the agency met its burden of proving both charges and all the supporting specifications. ID at 7-15. The appellant does not appear to dispute that finding on review. PFR File, Tab 1. Instead, he makes the following arguments: the agency did not have the authority to remove him pursuant to the VA Accountability Act; the administrative judge erred by denying his motion to compel discovery; he was denied due process; and the administrative judge improperly failed to apprise him of the appli cable burdens for the affirmative defenses he identified on his Board appeal form , as required by Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1 985). PFR File, Tab 1 at 1 -5. ¶10 Regarding the appellant ’s argument that the agency did not have the authority to remove him pursuant to 38 U.S.C. § 714 , as the administrative judge correctly noted , the VA Accountability Act applies to all agency employees except those in certain specified categories set forth in 38 U.S.C. § 714(h)(1)(A) -(D). ID at 4; see 38 U.S.C. § 714(a)(1). The administrative judge found that, because the appellant did not belong to any of these categories, the agency had the authority to remove him pursuant to section 714. ID at 4. ¶11 Regarding the appellant ’s argument that the administrative judge abused her discretion by denying his motion to compel discovery , the appellant contends on 5 review that the administrative judge should have granted his motion to compel regarding his requests for the DOJs and IP log s of all Spokane Medical Center Police Department employees for the 2 years preceding his request (document requests 16 and 17, respectively).2 PFR File, Tab 1 at 2 n.2; IAF, Tab 7 at 10. He further asserts that, although the administrative judge denied his motion to compel the agency to provide him these documents, she then identified “this very agency information ” in the initial decision to support the agency ’s action. PFR File, Tab 1 at 2 n.2. The appellant avers that, if he had been allowed to exami ne these documents, “this could have made a difference in this case and affirmative defense(s). ” Id. ¶12 The appellant ’s arguments are unavailing. The record indicates that the appellant did not object below to the administrative judge ’s discovery rulings , and his failure to do so precludes him from raising such an objection on review. See Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579, 581 (1988) (stating that the appellant ’s failure to object to rulings precludes him from doing so on review) ; IAF, Tab 2 at 3 . Moreover, the Board has held that administrative judges have broad discretion in ruling on discovery matters , and absent a showing of an abuse of discretion, the Board will not find reversible error in such rulings. Kingsley v. U.S. Postal Service , 123 M.S.P .R. 365, ¶ 16 (2016); Wagner v. Environmental Protection Agency , 54 M.S.P.R. 447 , 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table). In denying the appellant ’s motion to compel, the administrative judge found that the appellant had not shown that the DOJs and IP logs he requested were relevant and that his request for the DOJs was overly broad. IAF, 2 Although the appellant ’s motion to compel involved 15 other discovery requests (10 other document requests and 5 requests for admission), IAF, Tab 7 at 4, and the administrative judge denied the motion in its entirety, IAF, Tab 9, the only discovery requests that the appellant mentions on review are do cument requests 16 and 17. PFR File, Tab 1 at 2 n.2. Because the appellant has not specifically challenged the administrative judge ’s rulings regarding the other discovery requests at issue in his motion to compel, we do not consider those discovery requests further. 6 Tab 9. Although the appellant disag rees with the administrative judge ’s discovery rulings, he has not alleged that she abused her discretion in denying his motion to compel discovery, and we discern no such abuse in this matter. ¶13 We also find unpersuasive the appellant ’s argument that the ad ministrative judge improperly considered the DOJs and IP logs that were the subject of his motion to compel in deciding to sustain his removal. PFR File, Tab 1 at 2 n.2. The only DOJs and IP logs that the administrative judge considered in reaching her d ecision were those pertaining to the appellant. ID at 8 -11. These documents were part of the record and the agency provided them to the appellant with the proposal notice. IAF, Tab 6 at 54 -67, 75 -118. Thus, the appellant had the opportunity to examine those records, and the administrative judge properly considered them in sustaining his removal. We nevertheless must reverse the removal action . ¶14 Although we agree with the administrative judge ’s finding that the VA Accountability Act applies to the appella nt because he is a “covered individual ” under the Act as set forth in 38 U.S.C. § 714(h)(1), we nonetheless find that his removal was improper under the VA Accountability Act . A fter the initial decision in this appeal was issued, the Board and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued precedential opinions addressing the application of the VA Accountability Act to events that occurred before the d ate of its enactment. We conclude that the appellant ’s removal must be reversed. ¶15 In Sayers v. Department of Veterans Affairs , 954 F.3d 1370 , 1380 -82 (Fed. Cir. 2020) , the court found that 38 U.S.C. § 714 cannot be applied to events occurring before its enactment because Congress did not authorize its retroactive application, and the statute ’s lowered substantial evi dence standard of proof and elimination of the Board ’s authority to mitigate the penalty detrimentally affected Dr. Sayers ’s property right to continued employment. Id. at 1372, 1374, 1380 -82. The court also acknowledged that the notice of proposed remov al in that case had not been issued until after the enactment of the VA Accountability Act but 7 determined that “[s]ection 714 ’s impermissible retroactive effect on Dr. Sayer s’s substantive employment right is not eliminated by the prospective application o f § 714 ’s procedures. ” Id. at 1381. Consequently , the court held that the agency may not use the VA Accountability Act to discipline an employee for matters that occurred before its effective date, June 23, 2017 , and vacated Dr. Sayers ’s removal . Id. at 1380 -82. ¶16 Additionally , in Wilson v. Department of Veterans Affairs , 2022 MSPB 7 , ¶¶ 4, 29, the Board addressed the removal of an em ployee under section 714 based on alleged neglect of duty that both predat ed and postdat ed the effective date of the VA Accountability Act. The Board considered whether it would be possible to sustain the agency ’s action based solely on any alleged post -June 23, 2017 neglect of duty, but it concluded that the action must be reversed because the underlying alleged instances of misconduct by the appellant ’s subordinates “are so factually interrelated that they cannot be fairly separated. ” Id., ¶¶ 29 -33 (quo ting Boss v. Department of Homeland Security , 908 F.3d 1278 , 1279, 1282 -83 (Fed. Cir. 2018)). ¶17 Here, as in Sayers , the agency removed the appellant under the VA Accountability Act based entirely on mis conduct that predated the June 23, 2017 enactment date. IAF, Tab 5 at 18-20, 30 -33. The fact that the removal proposal and decision letters were issued after the enactment date is of no consequence . Instead, as the court held in Sayers , 38 U.S.C. § 714 may not be applied to conduct that predates the passage of the Act , irrespective of the date that the agency action was proposed and effectua ted. Sayers , 954 F.3d at 1380. Accordingly, the agency ’s charge s are not sustained and the appellant ’s removal must be reversed.3 See id. at 1380 -82. 3 The reversal of the appellant ’s removal on the grounds that 38 U.S.C. § 714 cannot be applied retroactively does not preclude the agency from reinitiating a removal action against the appellant for the same conduct under chapter 75. Cf. Jenkins v. Environmental Protection Agency , 118 M.S.P.R. 161 , ¶ 14 (2012) (holding that the 8 The administrative judge correctly determined that the appellant failed to establish any of his affirma tive defenses. The administrative judge correctly found that the agency did not violate the appellant ’s due process rights. ¶18 The appellant reasserts his due process claim on review. PFR File, Tab 1 at 2, 4-5; IAF, Tab 26 at 2, 4 -5. Due process requires th at, before taking an appealable action that deprives a tenured Federal employee of his property right in his employment, an agency must provide the employee with notice and a meaningful opportunity to respond. Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 543 -46 (1985) . The appellant alleges that the agency denied him a meaningful opportunity to respond to the proposal notice when the Director ’s secretary informed him that he must contact her directly to make arrangements for an ora l reply. PFR File, Tab 1 at 4. He contends that, by not allowing his representative to schedule the oral reply on his behalf, the agency hindered his ability to make the necessary arra ngements to present an oral reply to the proposed removal.4 Id. ¶19 The administrative judge considered this argument in the initial decision and correctly found that the appellant ’s assertion that he was not afforded an opportunity to respond to the proposal notice was unsupported by the record. ID at 16. As previously discussed, the notice of proposed removal included explicit instructions for arranging an oral reply; however, the appellant and his representative chose not to follow these instructions even after the agency reversal of the appellant ’s removal on due process grounds did not preclude the agency from reinitiating the action based on the same charges in a constitutionally correct proceeding). 4 The appellant also asserts that requiring him to contact the Director ’s secretary directly to arrange an oral reply “was harmful error in the application of the procedures in arriving at [the agency ’s] decision. ” PFR File, Tab 1 at 5. The appellant has not presented any evidence to suggest that the agency committed an error that caused substantial harm or prejudice to his rights. 5 C.F.R. § 1201.4 (r). Thus, he has failed to show harmfu l procedural error. 9 extended the deadline for presenting an oral reply. Given these circumstances, we find that the appellant failed to show that the agency denied him a meaningful opportunity to respond to the notice of proposed removal. We agree with the administrative judge ’s finding that the appellant failed to prove his remaining affirmative defenses, but we modify the initial decision to clarify the proper standard applicable to the appellant ’s EEO reprisal claim. ¶20 The administrative judge found that th e appellant failed to prove his affirmative defenses of whistleblower retaliation and reprisal for prior EEO activity . ID at 17-21. The appellant has not challenged the administrative judge ’s findings regarding these claims on review. Instead, he argues that the administrative judge failed to provide him with proper Burgess notice before issuing the initial decision despite the fact that he identified these affirmative defenses on his Board appeal form. PFR File, Tab 1 at 5; IAF, Tab 1 at 3. ¶21 If an ap pellant prevails in an appeal before the Board based on a finding of discrimination, he may recover compensatory damages from the agency pursuant to the Civil Rights Act of 1991. Hess v. U.S. Postal Service , 124 M.S.P.R. 40 , ¶ 19 (2016). Thus, reversal of an agency action when an appellant has raised a discrimination -based affirmative defens e does not afford the appellant all possible relief available to him, and the Board must adjudicate the affirmative defense. See Morey v. Department of the Navy , 38 M.S.P.R. 14 , 17 (1988). Here, the appellant could be entitled to compensatory damages if he proved his claim of retaliation for protected EEO activity . See Hess , 124 M.S.P.R. 40 , ¶¶ 9 -19. The appellant also could be entitled to compensatory damages if he proved his claim of reprisal for protected disclosures or activities under 5 U.S.C. § 2302 (b)(8) or (b)(9). 5 U.S.C. § 1221 (g)(1)(A)(ii); see King v. Department of the Air Force , 119 M.S.P.R. 663 , ¶ 15 (2013). ¶22 Regarding the appellant ’s Burgess notice argument, t he Board has consistently required administrative judges to apprise an appellant of the applicable burdens of proving a particular affirmative defense, as well as the kind 10 of evidence the appellant is required to produce to meet h is burden. See Thurman v. U.S. Postal Service , 2022 MSPB 21 , ¶ 17 n.7 (2018); Wynn v. U.S. Postal Service , 115 M.S.P.R. 146 , ¶ 13 (2010 ), overruled on other grounds by Thurman , 2022 MSPB 2 1, ¶ 17. Here, the administrative judge failed to notify the appellant of the applicable law and the means for proving h is affirmative defenses before she issued the initial decision . The administrative judge did, however, address the appellant ’s affirma tive defenses in the initial decision, which set forth the elements and applicable standards for proving his affirmative defenses, thereby affording the appellant the opportunity to meet his burden of establishing these affirmative defenses on review and c uring her failure to provide the appellant notice regarding his affirmative defenses.5 ID at 15 -21; see Sabio v. Department of Veterans Affairs , 124 M.S.P.R. 161, ¶ 6 n.2 (2017) (finding that although the appellant was not notified of the correct standard and burden of proof applicable to her affirmative defense of racial discrimination before the hearing, the initial decision set forth the correct standard , thereby providing her with notice and an opportunity to meet this burden on review) ; Mapstone v. Department of the Interior , 106 M.S.P.R. 691 , ¶ 9 (2007) (stating that an administrative judge ’s failure to provide an appellant with proper Burgess notice can be cured if the initial decision puts the appellant on notice of what he must do to establish jurisdictio n). ¶23 In explaining the analytical framework applicable to the appellant ’s EEO reprisal claim , the administrative judge identified the motivating factor standard set forth in Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶¶ 48-51 (2015) , but then went on to also discuss Warren v. Department of the Army , 804 F.2d 654 , 656 -58 (Fed. Cir. 1986), which applies to alleged retaliation for 5 Because the administrative judge applied the correct standard in analyzing the appellant ’s whistleblower retaliation affirmative defense and the appellant has not challenged her findings on review, we have not addressed that claim f urther. ID at 19-21. 11 “the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulati on” in which an appellant did not allege EEO discrimination or retaliation, or seek to remedy whistleblower reprisal.6 ID at 17-18; see 5 U.S.C. § 2302 (b)(9)(A)(ii) ; Pridgen v. Office of Managemen t and Budget , 2022 MSPB 31, ¶ 32. We find that the administrative judge’s error in providing the Warren standard was harmless because she also provided the correct motivating factor standard. ID at 17. Further, she applied the standard concluding that the appellant had identified his first - and second -line supervisors in the EEO complaint (the latter served as the proposing off icial for his removal ), but he failed to present “evidence of a motive to retaliate” by these officials , or that the deciding official was even aware of his prior EEO activity . ID at 19. Consequently, the administrative judge concluded that the appellant “did not present any evidence to support his claim of retaliation .” ID at 19. ¶24 Following the issuance of the initial decision, the Board issued Pridgen , 2022 MSPB 31 , ¶¶ 20-25, which overruled parts of Savage and clarified the proper analytical framework to be applied to affirmative defenses of Title VII discrimination and retaliation. However, con sistent with Savage and the initial decision, the Board concluded that a motivating factor standard applies to claims of retaliation for EEO activity protected under Title VII and the Age Discrimination in Employment Act. Id., ¶¶ 20-21. Nevertheless, the relief that an appellant receives may be limited unless he proves that the prohibited consideration was a but -for cause of the agency’s action . Id., ¶¶ 20 -22, 30 (citation omitted) ; see Gomez -Perez v. Potter , 553 U.S. 474 , 491 (2008) (finding 6 The requirement s set forth in Warre n, 804 F.2d at 656 -58, state that an appellant must show that (1) he engaged in protected activity; (2) the accused officials knew of the protected activity; (3) the adverse action under review c ould, under the circumstances, have been retaliation; and (4) there was a genuine nexus between the alleged reta liation and the adverse action. 12 that 29 U.S.C. § 633a prohibits not just age -based discrimination, but re taliation for complaints of age -based discrimination as well). ¶25 As previously noted, the appellant ’s prior EEO complaint alleged that he was subjected to a hostile work environment based on age and reprisal.7 IAF, Tab 26 at 19 -33. The appellant does not dispute th e administrative judge’s determination that evidence of retaliatory motive was entirely lacking. Therefore, we affirm her finding as modified to clarify that the motivating factor standard , and not the genuine nexus standard, applies to the appellant’s EE O reprisal claim. Because the appellant failed to prove that his EEO activity motivated his removal, he necessarily failed to meet the more stringent but -for standard. Desjardin v. U.S. Postal Service , 2023 MSPB 6 , ¶ 31. Accordingly, he is not entitled to any relief for this claim. Id. ORDER We ORDER the agency to cancel the removal action and restore the appellant effective September 5, 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. ¶26 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations , no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency ’s efforts to calculate the amount of back pay, interest, and benefits due, and to 7 The only evidence in the record identifying the appellant’s prior EEO activity is a copy of a written affidavit he provided in support of his EEO complaint, which identifies his claim that he was “subjected to a hostile work environment based on age and reprisal ” as the sole claim accepted for investigation in connection with his EEO discrimination complaint. IAF, Tab 26 at 19. We will assume , for the sake of analyzing the appellant’s EEO reprisal claim, that his prior EEO activity concerned a claim of discrimination based on his age. 13 provide a ll 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. ¶27 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board ’s Order and of the actions it has taken to carry out the Board ’s Order. The appellant , if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶28 No later than 30 days after the agency tells the appellant that it has fully carried out the B oard ’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 reaso ns 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). ¶29 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process paym ents 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 APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be pa id, 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 14 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 issu ed the initial decision on your appeal. NOTICE OF APPEAL RIGHTS8 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 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. 15 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono re presentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case, and your representative receives this decision before you do, then you must file 16 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for re view to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 17 (3) Judicial review pursuant to the Whistleblower Protection Enha ncement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of compete nt 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 judi cial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 9 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 18 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 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. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20 Pay%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 determinatio n, 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 ea rned 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’ compen sation, 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). DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations NATIONAL FINANCE CEN TER C HECKLIST FOR BACK PA Y 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 co urts. 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 mu st 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 unemploy ment, 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.	LYNN_DANIEL_SF_0714_17_0702_I_1_FINAL_ORDER_2048962.pdf	2023-07-12	null	SF-0714	NP
2,915	https://www.mspb.gov/decisions/nonprecedential/BRYAN_MARVIN_CLEVELAND_DC_3443_17_0660_I_1_REMAND_ORDER_2048964.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MARVIN CLEVELAND BRY AN, JR., Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DC-3443 -17-0660 -I-1 DATE: July 12, 2023 THIS ORDER IS NONPRECEDENTIAL1 Marvin Cleveland Bryan, Jr., New Rochelle, New York, pro se. Christina Knott , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal regarding the agency’s resci nding its job offer for lack of jurisdiction . For the reasons discussed below, we GRANT the appellant’s petition for rev iew, AFFIRM the initial decision to the extent that it found that the appellant failed to establish jurisdiction over this appeal as a cancellation of 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 id entified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 promotion or appointmen t, MODIFY the initial decision to find that the appellant failed to nonfrivolously allege that the agency took a suitability action because he did not apply for a covered position, and REMAND the case to the regional office for further adjudication of the appellant’s claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301 -4335) (USERRA) in accordance with this Remand Order. BACKGROUND ¶2 The appellant applied and was tentatively selected for the Attorney Advisor GS-0905 -11 position with the Board of Veterans Appeals . Initial Appeal File (IAF), Tab 1 at 5, Tab 3 at 17, 21-26. He was notified of the tentative selection on June 20, 2017, but then the agency notified him on July 10, 2017, that it was rescinding its of fer. IAF, Tab 3 at 17, 28 . ¶3 The appellant filed the instant appeal challenging the agency’s action and requested a hearing. IAF, Tab 1. He argued that he received a final offer of employment that the agency later withdrew and that the agency took a neg ative suitability action against him. IAF, Tab 3 at 12, Tab 10 at 4. He also asserted that the agency’s decision was due in part to his request for benefits because of his status as a combat -injured disabled veteran . IAF, Tab 3 at 11 -12. Namely, he stated that the agency failed to offer him 8 hours per pay period of annual leave that he “gallantly earned while being injured in a combat zone ” and that he notified the agency that, because he was a disabled veteran, he would require a special chair when he entered on duty. Id. at 5, 7 -8. However, the administrative judge did not provide the appellant with notice of his jurisdictional burden under USERRA . IAF, Tabs 9, 16. ¶4 Without holding the appellant’s requested hearing, the administrative judge issued an initial decision that dismissed the appeal for lack of jurisdiction. IAF, Tab 21, Initial Decision (ID). She found that the appellant failed to nonfrivolously allege that he was s ubjected to an appealable action in the form of 3 cancelling a prom otion or appointment because he failed to nonfrivolously allege that a promotion or appointment actually o ccurred and that, even if he were appointed, he failed to nonfrivolously allege that the appointment was not revoked.2 ID at 7 -9. She also found tha t the appellant failed to nonfrivolously allege that the agency took a suitability action . ID at 9 -12. Further, s he stated that the app ellant had not raised claims regarding, among other things, his military service , which could have provided a basis for the Board’s jurisdiction. ID at 2 n.1. Finally, she found that, absent an otherwise appealable action, the Board lacked jurisdiction over any of the appellant’s other arguments . ID at 12. ¶5 The appellant has filed a petition for review , and the agency ha s responded in opposition to his petition. Petition for Review (PFR) File, Tabs 1, 3. DISCUSSION OF ARGUME NTS ON REVIEW We modify th e initial decision to find that an attorney advisor is not a “covered position,” and thus the appellant did not nonfrivolou sly allege that the agency took a suitability action . ¶6 The appellant challenges the administrative judge’s finding that the agency did not take a suitability action against him , asserting that he w as denied discovery and the opportunity to develop the re cord regarding this issue. PFR File, Tab 1 at 5 -6; ID at 9 -12; IAF, Tab 9 at 4 -5. A “suitability action” is defined as a cancellation of eligibility, a removal, a cancellation of reinstatement eligibility, and a debarment. 5 C.F.R § 731.203 (a). Title 5 of the Code of Federal Regulations, section 731.101 (b) de scribes a “covered position” for purposes of defining a suitability action as “a position in the com petitive service, a position in the excepted service where the incumbent can be noncompetitively 2 The appellant does not challenge the finding that he failed to establish jurisdiction on the basis of a cancellation of a promotion or appointment , and we fin d no reason to disturb it. P etition for Review File, Tab 1; ID at 7 -9; see Levy v. Department of Labor , 118 M.S.P.R. 619 , ¶ 10 (2012) (stating that to establish jurisdiction in an appeal from the cancellation of a promotion or appoi ntment as a reduction in grade, the appellant must show that the promotion or appointment actually occurred). 4 converted to the competitive service, and a career appointment to a position in the Senior Executive Service.” Hudlin v. Office of Personnel Management , 119 M.S.P.R. 61 , ¶ 6 n.2 (2012). ¶7 The position at issue is an excepted -service position that does not provide for noncompetitive conversio n to the competitive service . IAF, Tab 3 at 24; see 5 C.F.R. § 213.3102 (d). Thus, it is not a “covered position” for purposes of determining whether a suitability action occurred. Cf. Hopper v. Office of Personnel Management , 118 M.S.P.R. 608 , ¶ 7 n.3 (2012) (finding that, although the appellant was in the excepted service, he was a covered employee for purposes of a suitability action because he could be noncompetitively converted to the competitive service) , aff’d , 786 F.3d 1340 (Fed. Cir. 2015) . Accordingly, although we agree that the appellant has failed to nonfrivolously allege that he was subjected to a suitability action , we modify the initial decision to find that this was because he did not apply for a “covered position.”3 The appellant nonfrivolously alleged a cognizable claim under USERRA when he asserted that the agency rescinded its offer because he is a disabled veteran. ¶8 Under 38 U.S.C. § 4311 (a), “ [a] person who . . . has performed . . . service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that . . . performance of service . . . .” To establish jurisdiction over a USERRA discrimination claim under section 4311(a), the appellant must nonfrivolously allege the following : (1) he performed duty or has an obligation to perform duty in a uniformed service o f the United States; (2) the agency denied him initial employment, reemployment, retention, promotion, or 3 The appellant asserts that the administrative judge improperly denied him discovery on whether the agency took a suitability action against him. PFR File, Tab 1 at 5-6. The Board will not find reversible e rror in an administrative judge’ s discovery rulings absent an abuse of discretio n that prejudiced the appellant’ s substantive rights . See Jones v. Department of Health and Human Services , 119 M.S.P.R. 355 , ¶ 18 (2013), aff’d , 544 F. App’x 976 (Fed. Cir. 2014). Because the appellant did not make a nonfrivolous allegation of jurisdic tion as a matter of law, we find no such prejudice. 5 any benefit of employment; and (3) the denial was due to the performance of duty or obligation to perform duty in the uniformed service.4 Gossage v. Department of Labor , 118 M.S.P.R. 455 , ¶ 10 (2012). A claim of discrimination under USERRA should be broadly and liberally constru ed in determining whether it is nonfrivolous. Id. Allegations of discrimination based on one’s status as a disabled veteran are cognizable under USERRA. Kirkendall v. Department of the Army , 94 M.S.P.R. 70 , ¶ 6 (2003). As discussed below, we find that the appellant has nonfrivolously alleged a cognizable claim under USERRA on the basis of his status as a disabled veteran . ¶9 We find that the appellant performed military duty, that the agency was aware that he did so, and that the agency took an action covered under USERRA. The appellant asserted below , and on review, that he served in co mbat and he is a disabled veteran . PFR File, Tab 1 at 6; IAF, Tab 19 at 6. He also asserted that the agency was aware of his service because his application for employment included his DD Form 214/Certificate of Release or Discharge from Active Duty, 30 percen t disability letter, and co mbat -related special compensation letter . PFR File, Tab 1 at 6; IAF, Tab 19 at 6 . Further, it is undisputed that this constitutes an action cove red under 38 U.S.C. § 4311 (a) because the statute specifies that an agency shall not deny initial employment. ¶10 We also find that the appellant’s claim constitutes a n onfrivolous allegation that his status as a disabled veteran was the reason that the agency revoked his offer of employment . The appellant asserted that the agency discriminated against him when it rescinded its offer of employment on the basis of his status as a disabled veteran, his ability to earn 8 hours of leave because of his service, and his statement that he would need a special chai r because of his status as a disabled veteran. PFR File, Tab 1 at 6; IAF, Tab 3 at 5, 7 -8, 11 -12. He also argues that the agency’s rescinded offer constitutes discrimination against a 4 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4 (s). 6 disabled veteran .5 Because the appellant argues that the agency took its action because of his status as a disabled veteran, we find that he has nonfrivolously alleged a claim under USERRA. See 38 U.S.C. § 4311 (a); Davison v. Department of Veterans Affairs , 115 M.S.P.R. 640 , ¶¶ 12-15 (2011) (finding Board jurisdiction over the appellant’s allegation of retaliation based on use of leave to which he was entitled only due to his status as a disabled veteran) ; Kirkendall , 94 M.S.P.R. 70 , ¶ 6 (finding that the appellant’s claim that the agency did not select him for a position because of his status as a disabled veteran was a claim cognizable under USERRA). Because we find that the appellant has nonfrivolously alleged that the agency rescinded its offer because of his status as a disabled veteran, we find that he is entitled to a hearing on the merits of his USERRA claim. See Gossage , 118 M.S.P.R. 455 , ¶ 10 (explaining that , once an appellant has established Board jurisdiction, he has an unconditional right to a hearing on the merits of his USERRA claim). Thus, we remand the appeal to provide the appellant with his requested hearing. 5 To the extent he is alleging disability discrimination as opposed to discrimination on the basis of his status as a disabled veteran, the Board lacks jurisdiction over this claim. See Mims v. Social Security Administration , 120 M.S.P.R. 213 , ¶ 22 (2013) ( finding that, to the extent the appellant claimed he was discriminated against based on a disability arising from his military serv ice, such a claim was not cognizable under USERRA). 7 ORDER ¶11 For the reasons discussed abo ve, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BRYAN_MARVIN_CLEVELAND_DC_3443_17_0660_I_1_REMAND_ORDER_2048964.pdf	2023-07-12	null	DC-3443	NP
2,916	https://www.mspb.gov/decisions/nonprecedential/GASTON_GARRY_DC_3330_18_0052_I_1_FINAL_ORDER_2048971.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD GARRY GASTON, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER DC-3330 -18-0052 -I-1 DATE: July 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Garry Gaston , Arlington, Virginia, pro se. Jessica A. Neff , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) appeal for lack of jurisdiction . For the reasons set forth below, the appellant ’s 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 dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g). DISCUSSION OF ARGUME NTS ON REVIEW ¶2 The appellant delivered his petition for review to a commercial delivery service on January 10, 2018, and it was received by the Board on January 11, 2018. Petition for Review (PFR) File, Tab 1 at 1 , 13; see 5 C.F.R. § 1201.4 (l) (providing that the date of filing by commercial delivery is the date the document was de livered to the commercial delivery service) . Included with his petition for review, the appellant attached a one -page printout of a partially completed request for an extension of time to file a petition for review. Id. at 2. In the extension request , the appellant stated that he was registered as an e -filer, but that an email notification announcing that the initial decision was issued was the only notification he received and that he did not receive notifications for any of the other orders issued belo w. Id. at 2 -3. The appella nt also stated that on December 24, 2017, he requested to extend the time to file his petition for review until January 10, 2018, and that a decision on the extension request “is still pending at MSPB.” Id. at 3. ¶3 In a January 12, 2018 acknowledgement letter , the Office of the Clerk of the Board notified the appellant that his petition for review was untimely filed and instructed him to file a motion requesting that the Board accept his petition as timely, or as unt imely filed with good cause for the delay. PFR File, Tab 2 at 2. The letter noted that prior to the appellant’s January 10, 2018 filing, the Board did not receive a request for an extension of time to file a petition for review from him, and further, tha t the Board’s e -Appeal Online logs showed that , although the appellant started a pleading in e -Appeal Online on December 24, 2017, the pleading was never actually submitted. Id. Consequently, the letter instructed the appellant to provide additional expl anation for his untimeliness and attached a copy of a motion to accept a filing as timely or to waive the time limits for him to 3 complete. Id. at 1-2, 7-8. In the agency’s response to the petition for review, it requested that the Board deny the petition as untimely filed without good cause shown for the delay. PFR File, Tab 3 at 4-5. The appellant has not filed a reply to the agency’s response and has not filed a motion to accept his untimely petition for review or to waive the time limits. ¶4 The Board ’s regulations provide that a petition for review must be filed within 35 days after the date of issuance of the initial decision or, if the party shows he received the initial decision more than 5 days after it was issued, within 30 days of his receipt of the decision. 5 C.F.R. § 1201.114 (e). The Board will waive the filing deadline for a petition for review only upon a showing of good cause for the untimely filing. Palermo v. Departm ent of the Navy , 120 M.S.P.R. 694, ¶ 4 (2014); 5 C.F.R. § 1201.1 14(g). The party who submits an untimely petition for review has the burden of establishing good cause for the untimely filing by showing that he exercised due diligence or ordinary prudence under the partic ular 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 reaso nableness of his excuse and the party ’s 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 una voidable casualty or misfortune that similarly shows a causal relationship to his inability to timely file his petition. Id. ¶5 Because the December 25, 2017 finality date of the initial decision was a Federal holiday, the appellant’s petition for review wou ld have been due on the following day, December 26, 2017. 5 C.F.R. § 1201.23 ; see Initial Appeal File, Tab 8, Initial Decision at 5. Therefore, the appellant’s January 10, 2018 petition for review was filed 15 days after the filing deadline. The Board has regularly held that a 15 -day delay is not minimal. See Wright v. Department of the Treasury , 113 M.S.P.R. 124 , ¶ 8 (2010) (concluding that an 11 -day delay is not 4 minimal) ; Scott v. Social Security Administration , 110 M.S.P.R. 92 , ¶¶ 8 , 10 (2008) (finding n o good cause for an unexplained 11 -day delay); Allen v. Office of Personnel Management , 97 M.S.P.R. 665 , ¶¶ 8, 10 (2004) (declining to excuse a pro se appellant ’s unexplained 14-day delay in filing a petition for review) ; Crozier v. Department of Transportation , 93 M.S.P.R. 438 , ¶ 7 (2003) ( noting that a 13 -day delay in filing is not minimal) . Additionally, despite being afforded the opportun ity to do so, the appellant has not offered any explanation for his delay in filing. ¶6 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 peti tion for review. The initial decision remains the final decision of the Board regarding the appellant’s request for corrective action under VEOA . NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Fa ilure 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 th e 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 qu estions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 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 t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 6 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 Feder al Circuit or any other circuit court 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 Cir cuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Pet itioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any atto rney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	GASTON_GARRY_DC_3330_18_0052_I_1_FINAL_ORDER_2048971.pdf	2023-07-12	null	DC-3330	NP
2,917	https://www.mspb.gov/decisions/nonprecedential/RAMIREZ_ANTHONY_E_SF_0752_16_0747_I_1_FINAL_ORDER_2049020.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ANTHONY E. RAMIREZ, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER SF-0752 -16-0747 -I-1 DATE: July 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shari Hetzler , Albion, California, for the appellant. Catherine V. Meek , Long Beach, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a peti tion for review of the initial decision, which affirmed his demotion. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required proce dures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting 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 ¶2 The appellant has been employed with the agency since 1982. Initial Appeal File (IAF), Tab 8 at 36. Sinc e March 2010, he has held the position of Postmaster, EAS -20, at the Lahaina Post Office in Hawaii . Id. In that position, he managed the operation of the post office. IAF, Tab 9 at 136. ¶3 In October 2015, the agency’s O ffice of Inspector General began an investigation into a letter carrier after receiving a complaint that he was taking extended lunch breaks at his residence. Id. at 24. The investigation revealed that the carrier took lunch breaks at his home and then reported th at he did not take lunch b reaks to both the appellant, who was his second -level supervisor, and to his first -level supervisor. Id. at 74. Because the carrier and his first -level supervisor were in a relationship and shared a residence , she was not permitted to change his time and attendance records to reflect that he did not take a lunch break. IAF, Tab 8 at 122, Tab 9 at 4. However, the investigation revealed that she used the appellant’s login credentials to make these changes. IAF, Tab 8 at 122. Despite the appellant’s statements to the contrary , the agency concluded 3 that he deliberately provid ed his login credentials to the carrier ’s first -level supervisor . IAF, Tab 8 at 91, 93, Tab 9 at 17-18, 28, 97 . ¶4 In Febr uary 2016, the agency proposed the appellant’s reduction in grade and pay based on three cha rges: (1) unacceptable conduct; (2) negligent performance of duties; and (3) lack of candor. IAF, Tab 8 at 90 -99. The agency sustained the charges and demote d the appellant to Supervisor of Customer Services, EAS -17, at t he Wahiawa Post Office. Id. at 36, 74. ¶5 The appellant filed a Board appeal , alleging, among other things, that he was discriminated against because of his race and age and retaliated against for making disclosures protected under 5 U.S.C. § 2302 (b)(8). IAF, Tabs 1, 15. At the appellant’s request, the administrative judge cancelled the requested hearing. IAF, Tab 15. In her initial decision, the administrative judge sustained each of the agency’s charges, though not all of the specifications; found that the appellant failed to prove his affirmative def enses; and concluded that the imposed penalty was within the bounds of reasonableness. IAF, Tab 26, Initial Decision (ID) at 5-22. The appellant has filed a petition for review, the agency has filed a response opposing the petition , and the appellant has filed a reply to the response . Petition for Review (PFR) File, Tabs 1, 3 -4. DISCUSSION OF ARGUME NTS ON REVIEW ¶6 The appellant argues that the agency was not forthcoming during discovery and requests that we sanction the a gency for disregarding the administrative judge’s orders. PFR File, Tab 1 at 1 -2. Specifically, he refers to the administrative judge’s order that the agency produce any information it had regarding other supervisory personnel in the Honolulu District wh o shared their time and attendance login credentials. Id. at 2; IAF, Tab 15 at 4, Tab 18 at 1. The appellant alleges that , on December 13, 2016, the agency responded to the administrative judge’s order by stating: “After a diligent search, the Agency ha s no responsive documents in its possession, custody or control.” PFR File, Tab 1 4 at 2. There was only one submission entered into the record on that date. IAF, Tab 20. Nowhere in that submission did the agency make such a statement.2 Id. Nor has the appellant produced any other evidence demonstrating that the agency failed to be fully forthcoming in its response to the administrative judge’s order. Accordingly, we deny the appellant’s request for sanctions. ¶7 The appellant also questions the “validity ” of an affidavit provided by the proposing official, wherein the proposing official purportedly stated that there were no other employees in the appellant’s pay location who were treated differently from the appellant regarding being issued discipline for a similar infraction under similar circumstances. PFR File, Tab 1 at 1. An appellant’s arguments and assertions in his petition for review must be supported by specific references to the record and any applicable laws or regulations. Stoglin v. Departm ent of the Air Force , 123 M.S.P.R. 163 , ¶ 6 (2015), aff’d per curiam , 640 F. App’x 864 (Fed. Cir. 2016); 5 C.F.R. § 1201.114 (b). The appellant failed to identify specific evidence in the record demonstrating that the proposing official made such a statement in an affidavit. Accordingly, we find the appellant’s as sertion unpersuasive .3 See Stoglin , 123 M.S.P.R. 163 , ¶ 6; 5 C.F.R. § 1201.114 (b). ¶8 The appellant maintains that he “provided the [B]oard with two separate incidents in which passwords were shared” among the employ ees of the Makawao and Wailuku Post O ffices, and contends that those employees were not disciplined b ecause they were born in Hawaii. PFR File, Tab 1 at 1. The 2 The agency did make the assertion in its October 13, 2016 response to the appellant’s discovery request for a survey of agency employees asking whether they had allowed their credentials to be utilized by someone else “to complete a task, a report or log into a teleconference.” IAF, Tab 13 at 20 -21. The administrative judge then ordered the agency to respond to the request in the manner described above, though she did not require the agency to conduct a survey. IAF, Tab 15 at 4, Tab 18 at 1. 3 It is u nclear what remedy the appellant would ask this Board to grant him if we found his argument persuasive. PFR File, Tab 1 at 1. 5 appellant made this assertion below. IAF, Tab 19 at 2, Tab 21 at 1. Specifically, in one submission he stated that he was “attaching a signed statement from” an employee at the Wailuku Post O ffice that confirmed that supervisors sh ared their passwords. IAF, Tab 19 at 2. The appellant actually attached a summary of an interview of that employee, which the employee signed. Id. at 4 -6. The summary specifies that the Wailuku employee indicated t hat he would have to use a supervisor’s password, “[a]t the beginning,” to run an end -of-day report. Id. at 4. The administrative judge noted that there was no evidence regarding how the Wailuku employee obtained his supervisor’s password and found that the interview summary did not suggest that password sharing was an accepted practice. ID at 9. The Board will normally only consider whether an initial decision contains erroneous findings of material fact if, among other things, the petitioner explains why a challenged factual determination is incorrect and identifies specific evidence in the record that demo nstrates the error. Stoglin , 123 M.S.P.R. 163 , ¶ 6; 5 C.F.R. §§ 1201.114 (b), 1201.115(a)(2). Because the appellant here has failed to do so, and we discern no error with the initial decision in this respect, we affirm the administrative judge’s findings. ¶9 The appellant avers that he has new evidence concerning his claim of discrimination based on national origin. PFR File, Tab 1 at 1. Specifically, he states that an EAS -20 Postmaster a nd EAS -17 Supervisor in Kapaa —who are both native Hawaiian —were charged with sharing confidential login information but only received letters of warning. Id. F or another employee to be deemed similarly situated for purposes of an affirmative defense of discrimination based on disparate treatment he must have reported to the same supervisor, been subjected to the same standards governing discipline, and engaged i n conduct similar to the appellant’s without differentiating or mitigating circumstances. Ly v. Department of the Treasury , 118 M.S. P.R. 481 , ¶ 10 (2012). The proposed letters of warning issued to the appellant’s purported comparators allege that they, like the appellant, shared confidential login information. PFR File, Tab 3 6 at 11-16. However, they were not also charged, as the app ellant was, of lacking candor in statements made to Special Agents with the Office of Inspector General. IAF, Tab 8 at 91. Accordingly, because the appellant engaged in additional, and significant , misconduct, we find that these employees are not similar ly situated to him.4 See Ly , 118 M.S.P.R. 481 , ¶ 10. ¶10 The appellant also references his belief that he was retaliated against for reporting the proposing official’s violation of agency policy to the agency’s headquarters. PFR File, Tab 1 at 2. However, he has failed to explain why we should reverse the administrative judge’s findings that he failed to prove his affirmative defense, or identify specific evidence in the record demonstrating that the administrative judge erred. ID at 17 -20; PFR File, Tab 1 at 1 -3. Accordingly, because we discern no error with the initial decision in this respect, we affirm the administrative judge’s fin dings. See Stoglin , 123 M.S.P.R. 163 , ¶ 6; 5 C.F.R. §§ 1201.11 4(b), 1201.115(a)(2). ¶11 Finally, i n his reply to the agency’s response to the petition for review, the appellant asserts that the agency might have additional evidence regarding another possible comparator at the Wailuku Post Office. PFR File, Tab 4 at 1-2. A reply to a response to a petition for review is limited to the factual and legal issues raised by another party in the response to the petition for review, and may not raise new allegations of error. 5 C.F.R. § 1201.114 (a)(4). Accordingly, to the extent that the appellant raises a new allegation of error, we decline to 4 The appellant does not otherwise challenge the administrative judge’s findings that he did not prove that his race, national or igin, or age was a motivating factor in the agency’s decision to demote him . ID at 14 -17. Because we discern no error with the administrative judge’s motivating factor analy sis or conclusion s regarding these claims , we do not reach the question of whethe r the appellant’s race, national origin, or age was a “but -for” cause of the demotion action. See Pridgen v. Office of Management and Budget , 2022 MSPB 31 . 7 consider it. For the reasons set forth above, we affirm the initial decision and uphold the appellant’s reduction in pay and grade.5 NOTICE OF APPEAL RIG HTS6 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seek ing such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not p rovide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final d ecision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum f or more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the cou rt 5 The appellant has filed a petition for review of another initial decision, which dismissed his appeal of his suspension for lack of jurisdiction. Ramirez v. U.S. Postal Service , MSPB Docket No. SF -0752 -16-0743 -I-1. The Board will issue a separate final decision in that appeal. 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at t he court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Feder al Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition o f your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative 9 receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for rev iew to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhan cement Act of 2012 . This option applies to you only if you have raised 10 claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competen t jurisdiction.7 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Re view Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other ci rcuit court 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 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	RAMIREZ_ANTHONY_E_SF_0752_16_0747_I_1_FINAL_ORDER_2049020.pdf	2023-07-12	null	SF-0752	NP
2,918	https://www.mspb.gov/decisions/nonprecedential/RAMIREZ_ANTHONY_E_SF_0752_16_0743_I_1_FINAL_ORDER_2049024.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ANTHONY E. RAMIREZ, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER SF-0752 -16-0743 -I-1 DATE: July 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shari Hetzler , Albion, California, for the appellant. Catherine V. Meek , Long Beach, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a peti tion for review of the initial decision, which dismissed his appeal of his placement on administrative leave for lack of jurisdiction . On petition for review, the appellant argues that the agency suspended him because of his race and national origin , and in retaliation for his 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 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 Reg ulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.11 5 for granting 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 HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represe nt a statement of how courts will rule regarding which cases fall within their jurisdiction. 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 w hich 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 fin al Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madiso n Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and App ellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives t his decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for revi ew 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 Enhanc ement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in s ection 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 cou rt 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 judici al review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono repr esentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	RAMIREZ_ANTHONY_E_SF_0752_16_0743_I_1_FINAL_ORDER_2049024.pdf	2023-07-12	null	SF-0752	NP
2,919	https://www.mspb.gov/decisions/nonprecedential/COULTER_CHRISTOPHER_SF_1221_17_0522_W_1_REMAND_ORDER_2049091.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHRISTOPHER COULTER, Appellant, v. DEPARTMENT OF THE AI R FORCE, Agency. DOCKET NUMBER SF-1221 -17-0522 -W-1 DATE: July 12, 2023 THIS ORDER IS NONPRECEDENTIAL1 Waukeen Q. McCoy , Esquire, San Francisco, California, for the appellant. Kathryn Price , El Segundo , California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member REMAND ORDER ¶1 The appellant has fi led a petition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review , 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 REVERSE the initial decision, and REMAN D the appeal to the Western Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 At all times relevant to this appeal, the appellant was employed by the agency as an Air Traffic Control (ATC) Specialist at Travis Air Force Base (TAFB), California. Initial Appeal File (IAF), Tab 8 at 41 -45. According to the appellant, in March 2013, he began collecting and compiling information related to ATC operations at TFAB. IAF, Tab 1 at 25. He alleges that, from 2013 to 2015, he tracked and recorded “all safety violations, procedural violations, non-compliance, errors and mishaps to prevent further mishaps/incidents from occurring” in a document called the “Administrative Pro Time Tracker and Daily Extraction Notes [E]xcel spr eadsheet.” IAF, Tab 6 at 4. The appellant asserts that he experienced ongoing retaliatory behavior by his superiors and coworkers for tracking incidents and maintaining the spreadsheet. Id. at 5. ¶3 On February 17, 2016, the agency removed the appellant from his position based on one charge of conduct unbecoming a Federal employee and one charge of failure to follow directives. IAF, Tab 1 at 7-10. On August 3, 2016, the appellant filed a complaint with the Office of Special Counsel (OSC) alleging that he made several protected disclosures and that the agency took several actions against him in retaliation for making those disclosures. Id. at 20 -38. On April 25, 2017, OSC informed the appellant that it had terminated its inquiry into his allegations and was closing his case. Id. at 39 -42. OSC also advised the appellant that he may have a right to seek corrective action before the Board. Id. ¶4 The appellant timely filed an IRA appeal with the Board, IAF, Tab 1, and the administrative judge issued a jur isdictional order informing him of what was required to establish Board jurisdiction over his claims, IAF, Tab 3. Both parties responded to the order, IAF, Tabs 4, 6 -14, and the appellant filed a rebuttal to the agency’s pleading in which he primarily arg ued that his overall tracking in his 3 spreadsheet of alleged safety violations, protocol violations, mishaps, and incidents constituted a protected disclosure, IAF, Tab 15 at 7 -9. More specifically, though, he highlighted six alleged disclosures and five p ersonnel actions that he asserts were taken in retaliation for those disclosures.2 Id. at 16-17. ¶5 In particular, the appellant alleged that he tracked and disclosed the following: (1) a civilian technician violated agency protocol, which resulted in $100,000 worth of damaged equipment; (2) the same civilian technician and two coworkers failed to follow protocol in a separate incident, which resulted in $29,000 worth of damaged equipment ;3 (3) another coworker failed to properly secure modems; (4) in February 2012 , there was a mid -air collision between a light civilian aircraft and a helicopter, and he tracked the incident and kept notes on it in his spreadsheet; (5) in September 2015, th e Chief Master Sergeant (CMSgt) attempted to decertify his ATC ratings; and (6) “in or about 2015,” his supervisor placed him on unauthorized duty restrictions , and he tracked this occurrence in his spreadsheet. Id. The appellant claimed that, in retaliation for these disclosures , the agency: (1) denied him overtime pay despite the fact that he worked overtime hours; (2) denied him a year -end bonus and time -off award in 2013, 2014, and 2015; (3) changed his job dutie s by placing unauthorized restrictions on his duties and responsibilities;4 (4) placed workplace restrictions 2 In the appellant’s initial response to the jurisdiction order, he listed several additional alleged personnel actions. IAF, Tab 6 at 5 -7. It appears that, through the course of the proceedings be low, the appellant narrowed his allegations regarding personnel actions, which he more clearly lays out in his rebuttal to the agency’s response to the jurisdictional order. IAF, Tab 15 at 9 -12. We have relied on the appellant’s rebuttal in analyzing the personnel actions at issue in the appeal. 3 The appellant treats purported disclosures 1 and 2 as one disclosure, IAF, Tab 15 at 16; however, we have separated them on review to adequately analyze each one individually. 4 The appellant broadly alleges that the agency placed unauthorized duty restrictions on him in retaliation for his disclosing his tracking spreadsheet. IAF, Tab 15 at 10 -11. He 4 on him; (5) placed him on administrative leave; and ( 6) removed him from Federal service. IAF, Tab 6 at 7, Tab 15 at 9 -12. ¶6 On August 7, 2017, th e administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 20, Initial Decision (ID). The administrative judge found that the appellant nonfrivolously alleged that purported disclosures 1, 2, 3, and 5 were protected; however, she found that the appellant failed to exhaust those claims before OSC. ID at 8 -13. She also found that the appellant failed to exhaust his remaining disclosures before OSC. ID at 4-13. ¶7 The appellant has filed a petition for review, arguing that the administrative judge erred in dismissing his appeal for lack of jurisdiction, that he made nonfrivolous allegations of protected disclosures, and that he exhausted those claims with OSC. Petition for Review (PFR) File, Tab 6 at 15 -18. I n an affidavit attached to his petition, he alleges an additional 14 claims of either protected disclosures or protected activity.5 Id. at 23 -26. For clarity, w e have numbered the additional allegations raised on review sequentially with the allegations presented below and addressed by the administrative judge. ¶8 In allegation 7, the appellant claimed that he conducted “playbacks” almost once a week between 2012 and 2015 of ATCs failing to give traffic advisories and traffic alerts and that he shared this information with his superiors ; in allegation 8, he detailed a specific “playback ” that he conducted on April 22, 2014, wherein he alleged that ATCs violated an order and that he recorded it in his spreadsheet, which was later sent to his superiors; in allegation 9, he claimed also claims as a separate personnel action that agency officials placed unauthorized duty restrictions on hi m in retaliation for a specific incident in August 2015. Id. at 11. Because the alleged personnel actions taken by the agency are effectively the same, we have combined them. 5 In the affidavit, the appellant also repeats three of the alleged disclosures explicitly made below. PFR File, Tab 6 at 24 -25. Those allegations will not be reiterated here. 5 that, in April 2013, he filed a grievance against his former supervisor and the CMSgt for de nying him overtime pay in violation of agency regulations; in allegation 10, he claimed that, in April 2013, he filed a grievance against his former supervisor for implementing a rotating shift bid process in violation of agency regulations; in allegation 11, he claimed that a coworker failed to provide ATC automation pre -duty briefings, that he logged these failures in his spreadsheet, and that he disclosed this violation to his superiors; in allegation 12, he claimed that two other employees committed sev eral security violations, which included, but were not limited to, leaving equipment room exit doors open, leaving equipment cabinets unlocked, and leaving unsecured laptops unattended overnight; and in allegation 13, he claimed that he tracked coworkers’ failure to provide air traffic control instructions .6 Id. at 17, 23 -25. ¶9 In allegation 14, the appellant claimed that, in October 2014, he filed a grievance against his supervisor for violating the automated time and attendance systems by changing his over time hours to regular hours; in allegation 15, he claimed that, in November 2014, he filed another grievance against his supervisor for placing unauthorized duty restrictions on him; in allegation 16, he claimed that a coworker improperly shared his person al files7 and information in violation of the agency’s Personally Identifiable Information (PII) policy; in allegation 17, the appellant claimed that, in September 2015, he filed a grievance regarding the CMSgt’s attempt to decertify his ratings; in allega tion 18, he claimed that, in October 2015, he filed a grievance against hi s supervisor and the Lieutenant 6 Specifically, the appellant alleged that he tracked his coworkers’ failure to provide merging target procedures. PFR File, Tab 6 at 17. 7 Although the appellant indicates that his “personal files” were shared, he may mean that his “personnel files” were shared; however, we have stated his claim as he asserted it. 6 Colonel (Lt. Col.) for denying him his Weingarten rights8 during an investigatory meeting; in allegation 19, the appellant claimed that the CMSgt and the Lt. Col. forced him to illegally backdate a controller evaluation, and that he eventually filed a grievance on the matter; and in allegation 20, he claimed that between January 2014 and December 2015, he filed multiple inspector general (IG) complaints against his superiors. Id. at 25 -26. ¶10 In his petition for review, the appellant also alleges as an additional personnel action that the agency imposed “restrictions” on him, which included being told that he was not permitted in the break room and the aut omation office and that he could not attend award ceremonies during off -duty hours. Id. at 11. He also alleges that he was required to check in with the watch supervisor before and after his shift and was told not to park in a certain location. Id. The agency has filed a response. PFR File, Tab 8. ANALYSIS ¶11 The Board has jurisdiction over an IRA appeal if the appellant proves by preponderant evidence that he exhaust ed his administrative remedy before OSC and makes nonfrivol ous allegations that: (1) he made a protected disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity described under 5 U.S.C. § 2302 (b)(9) (A)(i), (B), (C), or (D); and (2) the protected disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302 (a). Edwards v. Department of Labor , 2022 MSPB 9 , ¶ 8 , aff’d , No. 2022 -1967 , 2023 WL 4398002 (Fed. Cir. July 7, 2023) ; Chambers v. Department of Homeland Security , 2022 MSPB 8 , ¶ 11; Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016). The Board generally treats OSC exhaustion as a 8 The U.S. Suprem e Court, in National Labor Relations Board v. Weingarten, Inc. , 420 U.S. 251 , 260 (1975), recognized that a member of a bargaining unit has a right to representation at inves tigatory interviews. 7 threshold determination before considering whether the appellant’s claims constit ute nonfrivolous allegations of protected disclosures or protected activities. See Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446 , ¶¶ 4-5 (2014) (stating that the first element to Board jurisdiction over an IRA appeal is exhaustion by the appellant of his administrative remedies before OSC and that the next requirement is that he nonfrivolously allege that he made a prote cted disclosure or engaged in protected activity). Accordingly, our analysis will look first to whether the appellant exhausted his administrative remedy with OSC and, if that threshold requirement is met, then to whether he nonfrivolously alleged that he made a protected disclosure or engaged in a protected activity that was a contributing factor to an agency personnel action. See Salerno , 123 M.S.P.R. 230 , ¶ 5. In determining if an appellant has made nonfrivolous allegation s, the Board looks to his allegations rather than the agency’s contrary evidence or view of the evidence. Hessami v. Merit Systems Protection Board , 979 F.3d 1362 , 1368 -69 (Fed. Cir. 2020). The appellant exhausted 20 claims of alleged protected disclosures or protected activities and 6 alleged personnel actions before OSC .9 ¶12 To satisfy the exhaustion requirement of 5 U.S.C. § 1214 (a)(3), an appellant must have provided OSC with a sufficient b asis to pursue an investigation into his allegations of whistleblower reprisal . Chambers , 2022 MSPB 8 , ¶ 10. Generally, exhaustion can be demonstrated through the appellant’s initial OSC complaint, evidence the original complaint was amended (including but not limited to OSC’s determination letter and other letters from OSC referencing any amended allegations), and the appellant’s wri tten responses to OSC referencing the amended allegations. Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011). Alternatively, exhaustion may be proved through other 9 The appellant appears to have met the timeliness requirements set forth in 5 U.S.C. § 1214 (a)(3) for filing an IRA appeal with the Board. 8 sufficiently reliable evidence, such as an affidavit or declaration attesting that the appellant raised with OSC the substance of the facts in his appeal. Chambers , 2022 MSPB 8 , ¶ 11. ¶13 As briefly noted above, in the initial decision, the administrative judge found that the appellant failed to prove that he exhaust ed any of the six alleged disclosures before OSC that he raised below . ID at 10 -13. On review, the appellant submits an affidavit reiterating his alleged disclosures and activities raised before the administrative judge and, as noted, identifies new disclosures and acti vities . PFR File, Tab 6 at 21 -33. In that affidavit, he states that he had “multiple conversations with the [OSC] investigator where [he] stated the aforementioned disclosures” that he made and “the retaliation” he was receiving. Id. at 33. Although the Board generally will not consider evidence submitted for the first time on review absent a showing that it was unavailable before the record closed below despite the party’s due diligence, Cleaton v. Department of Justice , 122 M.S.P.R. 296, ¶ 7 (201 5), aff’d , 839 F.3d 1126 (Fed. Cir. 2016) , the appellant’s affidavit concerns the exhaustion of administrative remedies, which is a jurisdictional issue , and jurisdiction is always before the Board, see Lovoy v. Department of Health and Human Services , 94 M.S.P.R. 571 , ¶ 30 (2003). Accordingly, we have considered the appellant’s affidavit, and we find that it is sufficient to establish by preponderant evidence that he exh austed his administrative remedy with OSC regarding the 20 alleged disclosures and activities he has raised with the Board. See Chambers , 2022 MSPB 8 , ¶ 11. ¶14 The exhaustion requirement for an IRA appeal also precludes the Board from considering a personnel action that wa s not raised before OSC . Mason , 116 M.S.P.R. 135 , ¶ 8. Here, the appellant allege d below that the agency denied him overtime pay, d enied him year -end bonuses in 2013, 2014, and 2015, restricted his duties , placed him on administrative leave, and removed him from his position . IAF, Tab 15 at 9 -12. On review, he also asserts that the agency placed restrictions on him in the workplace . PFR File, Tab 6 at 11 -15. The 9 appellant’s OSC complaint makes clear that he exhausted his claims that the agency denied him overtime pay and year -end bonuses, IAF, Tab 1 at 25, 35, restricted his duties , id. at 30 -31, placed him on administrative leave, id. at 30, and removed him , id. at 27, 34. Although his OSC complaint does not reference the workplace restrictions, his affidavit submitted on review mentions these restrictions and asserts that he raised this claim with OSC. PFR File, Tab 6 at 28. Thus, between the appellant’s OSC complaint submitted below and his affidavit submitted on review, we find that the appellant exhausted his claims that the agency took the six personnel actions listed above against him. See Chambers , 2022 MSPB 8 , ¶ 11; Mason , 116 M.S.P.R. 135 , ¶ 8. The appellant made nonfrivolous allegations that he made at least one protected disclosure or engaged in at least one protected activity. ¶15 As stated above, to establish jurisdiction before the Board in an IRA appeal, the appellant mu st, after exhausting his administrative remedy before OSC, make nonfrivolous allegations that he made a protected disclosure or engaged in protected activity. Salerno , 123 M.S.P.R. 230 , ¶ 5. A nonfrivolous allegation of a protected whistleblowing disclosure is an allegation of facts that, if proven, would show that the appellant disclosed a matter that a reasonable person in his position would believe evidenced one of the categories of wrongdoing specified in 5 U.S.C. § 2302 (b)(8). Id., ¶ 6. The test to determine whether a putative whistleblower has a reasonable belief in t he disclosure is an objective one: whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the agency evidenced a violation of law, rule, or re gulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. Id. 10 The appellant nonfrivolously alleged that he made a protected disclosure with respect to allegations 2-8, 11-13, and 16. ¶16 As discussed above, i n allegation s 2-4, 7-8, 11 -13, and 16, the appellant asserts that he disclosed to his superiors various incidents in which agency employees failed to follow protocols, policies, and Joint Orders, which resulted in, among other things, damaged equipment, equipment being left unsecured, a mid-air collision, and violations of PII. PFR File, Tab 6 at 17, 21, 23 -26. Regardless of the specific law s, rules, or regulations that the appellant believed were violated, t he gravamen of these allegations is that he disclosed to his superiors several instances in which he believed coworkers engaged in conduct that violated laws, rules, or regulations .10 See Hudson v. Department of Veterans Affairs , 104 M.S.P.R. 283 , ¶ 11 (2006) (stating that there is no de minimis exception to an allegation that an agency violated a law, rule, or regul ation). Although we have concerns about the degree of detail provided in these allegations, as the appellant has not specifically alleged when the disclosures were made or, in some instances, specifically to whom, the burden at the jurisdictional stage is a low one, and we must resolve any doubt or ambiguity in favor of finding jurisdiction. See Usharauli v. Department of Health and Human Services , 116 M.S.P.R. 383 , ¶ 19 (2011) (stating that any doubt or ambiguity as to whether the appellant made a nonfrivolous jurisdictional allegation should be resolved in favor of finding jurisdiction); Jessup v. Department of Homeland Security , 107 M.S.P.R. 1 , ¶ 10 (2007) (observing that the appellant’s burden of 10 Although the appellant has not id entified the specific law, rule, or regulation in each disclosure that he believes was violated, the U.S. Court of Appeals for the Federal Circuit has stated that an appellant need not allege a violation of law with precise specificity when the “statements and circumstances surrounding the making of those statements clearly implicate an identifiable violation of law, rule, or regulation.” See Langer v. Department of the Treasury , 265 F.3d 1259 , 1266 (Fed. Cir. 2001). Here, in light of the low threshold for making a nonfrivolous allegation, the appellant has provided sufficient information to implicate a n identifiable law, rule, or regulation when not otherwise expressly provided. 11 making a nonfrivolous a llegation is low and requires only a minimal sufficient showing). Accordingly, because the appellant provided a brief description of wrongdoing related to a violation of law, rule, or regulation as contemplated in section 2302(b)(8 ) and asserted that he d isclosed this alleged wrongdoing to his superiors , we find that his assertions in this regard constitute nonfrivolous allegations that he made protected disclosures . ¶17 In allegation 5, the appellant asserts that he disclosed that the CMSgt attempted to decertify his ATC ratings, and in allegation 6, he alleges that he disclosed that his supervisor placed him on unauthorized duty restrictions. PFR File, Tab 6 at 25 -26. Of the types of wrongdoing set forth in 5 U.S.C. § 2302 (b)(8), the appellant’s claims in allegations 5 and 6 most closely align with allegation s of an abuse of authority. An employee discloses an abuse of authority when he alleges that a Federal official has arbitrarily or capriciously exercised power which has adversely affected the rights of any person or has resulted in personal gain or advantage to herself or to prefe rred other persons. Webb v. Department of the Interior , 122 M.S.P.R. 248 , ¶ 10 n.3 (2015). Here, the appellant’s allegations that the CMSgt attempted to decertify his ratings and that his supervisor imposed unauthorized duty restrictions on the appellant could both result in an adverse effect on the appellant’s rights , as both concern the appellant’s performance . Thus, we find that the appellant nonfrivolously alleged that he disclosed an abuse of authority with respect to allegations 5 and 6. ¶18 Based on the foregoing, we find that the appellant nonfrivolously alleged that he made a protected disclosure with respect to allegations 2 -8, 11-13, and 16. We now turn to the appellant’s protected activities . The appellant nonfriv olously alleged that he engaged in protected activity with respect to allegations 9, 14 -15, and 20. ¶19 The remainder of the appellant’s allegations are either related t o the filing of grievances or an IG complaint, both of which are considered protected activity under 5 U.S.C. § 2302 (b)(9). As relevant here, however, protected activity under 12 5 U.S.C. § 2302 (b)(9)(A)(i) includes “the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation . . . with regard to remedying a violation of [section 2302(b)(8)]” (emphasis added). Thus, only grievances seeking to remedy whistleblower reprisal are covered under section 2302(b)(9)(A)(i). 5 U.S.C. § 1221 (e)(1); see Mudd v. Departmen t of Veterans Affairs , 120 M.S.P.R. 365 , ¶¶ 6 -7 (2013). ¶20 The appellant claims in allegation 9 that he filed a grievance in April 2013 against his previous supervisor and the CMSgt for denying him overtime pay when he worked overtime hours. PFR File, Tab 6 at 23 -24. The grievance does not appear in the record, but the appellant alleged that he was denied overtime pay due to his trackin g spreadsheet. Id. at 11. Because the appellant has alleged that his tracking spreadsheet included various instances of wrongdoing by coworkers or agency officials and that he provided this spreadsheet to his superiors, we liberally construe the disclosu re of this spreadsheet to constitute whistleblowing activity and, therefore , find that the appellant nonfrivolously alleged that this grievance sought to remedy reprisal for whistleblow ing. Accordingly, we find that the appellant made a nonfrivolous alleg ation that the April 2013 grievance constitutes protected activity. See Mudd , 120 M.S.P.R. 365 , ¶ 7. ¶21 The grievances referenced in al legation 14 (regarding the claim that the appellant’s supervisor improperly logged into the appellant’s timecard and changed his time from unscheduled overtime to regular hours) and allegation 15 (regarding the appellant’s placement on unauthorized duty re strictions by his supervisor) both appear in the record. IAF, Tab 1 at 11 -12, 17 -19. The appellant filed the grievance detailed in allegation 14 to obtain the appropriate overtime pay that he was denied, he claims, as a result of reprisal for maintaining and disclosing his tracking spreadsheet, which, as explained above, when liberally construed, constitutes whistleblowing activity. Id. at 11 -12. The grievance detailed in allegation 15 sought the rescission of a memorandum that imposed 13 duty restrictions , according to the appellant, in reprisal for his maintaining and disclosing the tracking spreadsheet, which, again, when liberally construed, constitutes whistleblowing activity. Id. at 17-19. Because both grievances were filed to remedy personnel actio ns alleged to have been taken in retaliation for whistleblowing activity, we find that the appellant nonfrivolously alleged that the grievances described in allegations 14 and 15 constitute protected activity. See Mudd , 120 M.S.P.R. 365 , ¶ 7. ¶22 Finally, the appellant claims in allegation 20 that he filed several IG complaints between January 2014 and Decem ber 2015, PFR File, Tab 6 at 26 . Based on our review, no IG complaint is included in the record, but the filing of an IG complaint is considered protected activity under 5 U.S.C. § 2302 (b)(9)(C) regardless of whether it was filed in connection with remedying a violation of section 2302(b)(8). See 5 U.S.C. § 1221 (e)(1 ). Accordingly, we find that the appellant made a nonfrivolous allegation that IG reports that he filed from 2014 to 2015 constitute a protected activity. ¶23 In sum, we find that the appellant made nonfrivolous allegations that he engaged in protected activities in allegations 9, 14 -15, and 20. We now address the appellant’s all egations that are not protected. 14 The appellant failed to make a nonfrivolous allegation that he made a protected disclosure or engaged in protected activity with respect to allegations 1, 10, and 17-19.11 ¶24 In allegation 1, the appellant claims that he disclo sed to his superiors that a coworker violated agency protocol s which resulted in $100,000 worth of damaged equipment. IAF, Tab 15 at 16; PFR File, Tab 6 at 24. The administrative judge found that the appellant’s allegations constituted a nonfrivolous allegation of a violation of a law, rule, or procedure.12 ID at 8. We find, however, that the appellant’s allegations are not sufficiently specific or detailed to meet the above -referenced standard, as he does not explain, in contrast with the disclosures discussed above, the underlying conduct that he believes violated the unspecified protocol . Compare Salerno , 123 M.S.P.R. 230 , ¶¶ 2, 6 -7 (finding that an appellant’s disclosure to OSC that an agency’s communication security system was inadequate was not sufficiently specific or detailed to meet the nonfrivolous allegation standard), with Rusin v. Department of the Treasury , 92 M.S.P.R. 298 , ¶¶ 14 -15 (2002) (finding that the appellant’s allegation that his supervisor violated a specific and detailed rule from the a gency’s Procurement Instruction Memorandum constituted a nonfrivolous allegation of a violation of a law, rule, or regulation). Thus, we find that the appellant failed to make a nonfrivolous allegation of a protected disclosure . See Linder v. Department of Justice , 122 M.S.P.R. 14 , ¶ 14 (2014) (stating that disclosures must be specific and 11 As explained below, a finding of jurisdiction over the appellant’s appeal only requires us to find that the appellant nonfrivolously alleged that he made at least one protec ted disclosure or engaged in at least one protected activity that was a contributing factor in at least one personnel action. See Skarada v. Department of Veterans Affairs , 2022 MSPB 17 , ¶ 13; see also infra ¶ 30. Although we have found above that the appellant nonfrivolously alleged that he made at least one protected disclosure or engaged in at least one protected activit y, we nonetheless address the remaining alleged disclosures and activities in order to simplify the administrative judge’s remaining jurisdictional undertaking on remand. 12 Nonetheless, the administrative judge found that the appellant failed to prove th at he exhausted this claim with OSC. ID at 10. 15 detailed, and not simply vague allegation s of wrongdoing); Keefer v. Department of Agriculture , 82 M.S.P.R. 687 , ¶ 10 (1999) (explaining that disclosures must not be broad and imprecise and should be “sufficiently clear” ). ¶25 In allegation 10, the appellant asserts that he filed a grievance in April 2013 against his previous supervisor for implementing a r otating shift bid process. PFR File, Tab 6 at 24. In allegation 17, the appellant asserts that he filed a grievance regarding the CMSgt ’s attempt to decertify his ATC ratings. Id. at 26. In allegation 18, he assert s that he filed a grievance against his superior for denying him his Wein garten rights. Id. In allegation 19, the appellant allege s that he filed a grievance against his superiors because they forced him to illegally backdate a controller evaluation containing false information. Id. As explained above, only grievances seeking to remedy whistleblower reprisal are covered under section 2302(b)(9)(A)(i). 5 U.S.C. § 1221 (e)(1); see Mudd , 120 M.S.P.R. 365, ¶¶ 6 -7. Based on our review of the record, either the referenced grievances do not appear in the record or the appellant has not allege d that they were filed to remedy reprisal for whistleblower activity, as he has not claimed that the implementation of a rotating shift bid , the decertification of his ATC ratings, the denial of his Weingarten rights , or being forced to sign a backdated evaluation constituted personnel actions taken against him by the agency in retaliation for making a protected disclosure or engaging in a protected activity . PFR File, Tab 6 at 24, 26. Accordingly, we find that the appellant failed to make a nonfrivolous allegation that the grievances described in allegations 10 and 17-19 constitute protected activit y under 5 U.S.C. § 2302 (b)(9) . See Mudd , 120 M.S.P.R. 365 , ¶ 7. ¶26 To reite rate, we find that the appellant failed to nonfrivolously allege that he made a protected disclosure or engaged in protected activity with respect to allegations 1, 10, and 17-19. However, we find that the appellant nonfriv olously alleged that he made a p rotected disclosure or engaged in protected activity with respect to allegations 2-9, 11 -16, and 20 . 16 The appellant made nonfrivolous allegations that the agency took at least one personnel action against him. ¶27 As discussed above, the appellant claimed that the agency took six personnel actions against him in reprisal for his protected disclosures or activities . Specifically, t he appellant claimed that the a gency: (1) denied him overtime pay despite the fact th at he worked overtime hours; (2) denied him a year-end bonus and time off award in 2013, 2014, and 2015; (3) changed his job duties by placing unauthorized restrictions on his duties and responsibilities; (4) placed workplace restrictions on him; (5) place d him on administrative leave; and (6) removed him from Federal service. IAF, Tab 6 at 7, Tab 15 at 9 -12. After careful review of the record, w e find that the appellant made nonfrivolous allegations that the denial s of overtime pay and year -end bonuses c onstitute personnel actions because they both concern pay. 5 U.C.S. § 2302(a)(2)(A)(ix). We also find that the appellant made a nonfrivolous allegation of a personnel action regarding the unauthorized duty restrictions because a significant change in dut ies, responsibilities or working conditions is covered under section 2302(a)(2)(A)(xii). Further, the Board has held that placement on administrative leave constitutes a personnel action. Hagen v. Department of Transportation , 103 M.S.P.R. 595 , ¶ 13 (2006). Finally, a removal is an agency action covered under chapter 75. 5 U.S.C. § 2302 (a)(2)(A)(iii). Thus, the appellant has made nonfrivolous allegations that these actions constitute personnel actions under section 2302(a)(2)(A). ¶28 Regarding the appellant’s allegation that the agency imposed workplace restrictions on him, he asserts that he was told by his superiors not to be in the break room or the automation office, or to attend award ceremonies during off-duty hours. PFR File, Tab 6 at 11. He also claims that he was told not to park in a certain location and that he w as the only employee who had these restrictions placed on him. We find that these assertions do not rise to the level of a nonfrivolous allegation that the agency took a personnel action against him 17 under 5 U.S.C. § 2302 (a)(2)(A) . The only category encompassed by the appellant’s allegation is a “significant change in duties, responsibilities, or working conditions” under section 2302(a)(2)(A)(xiii). In interpreting this phase, the Board has expla ined that “only agency actions that, individually or collectively, have practical and significant effects on the overall nature and quality of an employee’s working conditions, duties, or responsibilities will be found to constitute a personnel action cove red by section 2302(a)(2)(A)(xii) .” See Skarada v. Department of Veterans Affairs , 2022 MSPB 17 , ¶ 16 (2022). The appell ant’s allegations that he could not park in a certain location or be present in certain rooms do not affect his duties or responsibilities, and the appellant has not alleged how these restrictions have a significant effect on his working conditions. Accor dingly, we find that the appellant failed to nonfrivolously allege that the agency’s imposition of workplace restrictions amounts to a personnel action under section 2302(a)(2)(A). The appellant made nonfrivolous allegations that at least one protected disclosure or activity was a contributing factor to at least one personnel action. ¶29 The next step in the analysis of an IRA appeal is to determine whether the appellant nonfrivolously alleged that the above -discussed protected disclosures or activities wer e contributing factors in a personnel action . Salerno , 123 M.S.P.R. 230, ¶ 5. To satisfy the contributing factor criterion at the jurisdictional stage of an IRA appeal, the appellant only need raise a nonfrivolous allegation that the fact of, or the content of, the protected disclosure or protected activity was one factor that tende d to affect the personnel action in any way. Id., ¶ 13. One way to establish this criterion is the knowledge/timing test, under which an employee may nonfrivolously allege that the disclosure or activity was a contributing factor in a personnel action th rough circumstantial evidence, such as evidence that the official who took the personnel action knew of the disclosure or activity and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosu re or activity was a contributing factor in 18 the personnel action. Id. With regard to the knowledge prong of this test, an appellant may establish, for jurisdictional purposes, that a disclosure or activity was a contributing factor in a personnel action by nonfrivolously alleging that the official taking the personnel action had constructive knowledge of the disclosure or activity . See Wells v. Department of Homeland Security , 102 M.S.P.R. 36 , ¶ 8 (2006). Constructive knowledge may be established by demonstrating that an individual with actual knowledge of the disclosure or activity influenced the official accused of taking the ret aliatory action. Id. Regarding the timing prong of the test, the relevant inquiry is the time between when the agency official taking the action had actual or constructive knowledge of the disclosure or activity —not necessarily the date of the disclosure or activity itself —and the time that the action was taken. See i d. ¶30 Due to the complexity and volume of the appellant’s claims, our discussion here is limited to address ing our ultimate inquiry of whether the appellant has establis hed jurisdiction over his appeal , to wit, whether he has nonfrivolously alleged that at least one protected disclosure or activity was a contributing factor in at least one personnel action . See Skarada , 2022 MSPB 17 , ¶ 13 (explaining that, in cases when an appellant has alleged multiple personnel actions, the Board has jurisdiction over the appeal when the appellant exhaust s his administrative remedy and makes a nonfrivolous allegation that at least one alleged personnel action was taken in reprisal for at least one alleged protected disclosures). As further discussed below, however, on remand, the administrative judge shou ld address each disclosure and personnel action over which the Board has jurisdiction, in addition to considering the merits of the appellant’s claims. The appellant nonfrivolously alleged that at least one protected disclosure or activity was a contribut ing factor in the denial of overtime pay. ¶31 Regarding the appellant ’s first alleged personnel action, the denial of overtime pay, it appears that the appellant alleged two different instances for when he was not properly compensated for overtime hours; the i nstance that led 19 to the filing of the April 2013 grievance (the subject of another alleged protected activity), for which he does not provide a date, and the instance that occurred in September 2014. IAF, Tab 1 at 11 -12; PFR File, Tab 6 at 23 -24. Further , he has alleged that the CMSgt, the Major, and his supervisor were the agency officials responsible for the denial of overtime pay. PFR File, Tab 6 at 23 -24, 28. ¶32 Because the alleged 2013 denial of overtime pay predates many of the appellant’s alleged p rotected disclosures and protected activities, for the sake of efficiency, we consider here the alleged September 2014 denial of overtime pay.13 Regarding allegation 9 (concerning the April 2013 grievance related to the initial denial of overtime pay), this grievance was filed in April of 2013, which was followed within 2 years by the September 2014 denial of overtime pay. Thus, the appellant’s assertions in allegation 9 meet the timing prong of the knowledge/timing test with respect to the 2014 denial of overtime pay . See Salerno , 123 M.S.P.R. 230 , ¶ 14 (holding that a personnel action taken within approximately 1 to 2 years of the protected disclosure or activity satisfies the knowledge/timing test) . Additionally, the appellant alleges that he logged “this information” in his tracking spreadsheet and that he disclosed the spreadsheet to his superiors. Id. at 23 -24. Although th e appellant’s reference to “this information” and to his “superiors” is not precise, at the jurisdictional stage of the proceedings, it is reasonable to construe this assertion as one alleging that he disclosed the grievance and the subject matter of the g rievance to a category of agency officials that includes, at least , the CMSgt and the appellant’s supervisor. See Usharauli , 116 M .S.P.R. 383 , ¶ 19; Jessup , 107 M.S.P.R. 1 , ¶ 10 . As such , we find that the appellant also nonfrivolously alleged that at least two of the agency officials responsible for the November 2014 denial of overtime pay had knowledge of the April 2013 grievance detailed in allegation 9. Thus, the 13 On remand, the administrative judge should include in the jurisdictional consideration the 2013 denial of overtime pay. 20 appellant has also me t the knowledge prong of the knowledge/timing test. Accordingly , we find that the appellant nonfrivolously alleged that at least one protected disclosure or protected activity was a contributing factor in the agency’s decision to deny him overtime pay in November 2014 . See Salerno , 123 M.S.P.R. 230 , ¶ 13. The appellant nonfrivolously alleged that at least one protected disclosure or activity was a contributing factor in the agency’s decision to deny him a year -end bonus in 2014 and 2015 , but failed to nonfrivolously allege the same with respect to the 2013 denial of a year -end bonus . ¶33 The appellant has alleged that the agency denied him year -end bonuses in 2013, 2014, and 2015 . PFR File, Tab 6 at 11-12. Although the appellant failed to explicitly name the agency official responsible for the denials, the record suggests that his direct supervisor denied those year -end bonuses. IAF, Tab 1 at 31, Tab 8 at 24. Regarding the 2013 denial, the appellan t has not asserted when in 2013 this denial occurred. Because this allegation lacks sufficient specificity to more fully assess the appellant’s claim , we only consider allegations of alleged protected disclosures and activities that occurred prior to 2013, as those that occurred after the 2013 denial of overtime could not have been contributing factors to it. See Lu v. Department of Homeland Security , 122 M.S.P.R. 335 , ¶ 11 (2015) (explaining that events that preceded an appellant’s disclosures will have “little to no releva nce”); Mason , 116 M.S.P.R. 135 , ¶ 27 (finding that disclosures occurring after the personnel actions at issue could not have been con tributing factors in those actions). The only alleged protected disclosure or protected activity that occurred prior to the relevant time period is the appellant’s disclosure detailed in allegation 4. In allegation 4, he alleges that he disclosed to the Major and flight security officers that a midair collision occurred as a result of his coworkers’ failure to provide traffic alerts and traffic advisories in violation of an agency Joint Order. PFR File, Tab 6 at 21. However, he has not alleged that he m ade this disclosure to his supervisor, who was responsible for the denial of the 2013 year -end bonus, nor has he alleged that the officials to whom 21 he made the disclosure had any influence on the appellant’s supervisor’s decision. Thus, the appellant’s al legations do not meet the knowledge/timing test. ¶34 However, t he knowledge -timing test is not the only way for an appellant to satisfy the contributing factor element. See Stiles v. Department of Homeland Security , 116 M.S.P.R. 263 , ¶ 24 (2011) . If the appellant fails to make nonfrivolous allegations that satisfy that test, we must consider other factors, such as that pertaining to the strength or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing was p ersonally directed at the proposing or deciding officials, and whether those individuals had a desire or motive to retaliate against the appellant. Id. Here, the appellant’s challenge to the agency’s basis for denying him the year -end bonus is a generic accusation that simply repeats his belief of reprisal. PFR File, Tab 6 at 11 -12. Further, by the appellant’s own admission, his alleged disclosure in allegation 4 did not implicate his direct supervisor. Id. at 9 -10. Based on the foregoing, we find tha t the appellant failed to nonfrivolously allege that he made at least one protected disclosure or engaged in at least one protected activity that was a contributing factor in the agency’s decision to deny him a year -end bonus in 2013. ¶35 Turning to the appe llant’s allegation that the agency also denied him a 2014 year-end bonus, we again observe that the appellant has not asserted a specific date on which this denial occurred. However, it is reasonable to assume that it occurred sometime in 2014. In allega tion 9, the appellant alleges that he filed a grievance regarding the denial of overtime pay in April of 2013, and as discussed above, we have found that he nonfrivolously alleged that that grievance was protected under 5 U.S.C. § 2302 (b)(9). Because an April 2013 grievance occurred within 1 -2 years of the 2014 denial of the appellant’s year -end bonus, we find that the appellant has met the timing prong of the knowledge /timing test. See Salerno , 123 M.S.P.R. 230 , ¶ 14 . Additionally, as discussed above, the appellant has alleged that he tracked the information related to the grievance in his spreadsheet, and that he shared the spreadsheet with his superiors. Again, at 22 this stage of the proceedings, we construe this assertion as one alleging that he disclosed the information in allegation 9 to at least his direct supervisor, w ho was the agency official responsible for the denial of the appellant’s 2014 year -end bonus. See supra , ¶ 34 ; see also Usharauli , 116 M.S.P.R. 383 , ¶ 19; Jessup , 107 M.S.P.R. 1 , ¶ 10 . As such, we find that the appellant also met the knowledge prong of the know ledge/timing test. Accordingly, we find that the appellant nonfrivolously alleged that he made at least one protected disclosure or engaged in at least one protected activity that was a contributing factor in the agency’s decision to deny his year -end bonu s in 2014. ¶36 Regarding the 2015 denial, the appellant again does not allege specifically when in 2015 this denial occurred. However, in allegation 14, the appellant alleged that he filed a grievance in October of 2014, and we have found above that he nonf rivolously alleged that that grievance was protected under 5 U.S.C. § 2302 (b)(9). Because a n alleged protected activity that occurred in October of 2014 occurred within 1 -2 years of any date in 20 15, we find that the appellant has established the timing prong of the knowledge/timing test. See Salerno , 123 M.S.P.R. 230 , ¶ 14 . Additionally, as noted above, the appellant’s supervisor was responsible for the 2015 denial of overtime pay, and the record makes clear that the October 2014 grievance was sent directly to him . IAF, Tab 1 at 11 -13. Thus, we find that the appellant’s allegations also meet the knowledge prong of the knowledge/timing test. Accordingly, we find that the appellant nonfrivolously alleged that he made at least one protected disclosure or engaged in at least one protected activity that was a contributing factor in the denial of his 2015 year -end bonus. The appellant nonfrivolously alleged that at least one protected disclosure or activity was a contributing factor in the agency’s decision to impose unauthorized duty restrictions on him . ¶37 Regarding the alleged unauthorized duty restrictions, the appellant has alleg ed that his supervisor placed him on unauthorized duty restrictions on 23 November 13, 2014. I AF, Tab 1 at 17 -19. As explained above, in allegation 14, the appellant alleges that he engaged in protecte d activity in October 2014 by filing a grievance covered under 5 U.S.C. § 2302 (b)(9). Again, because a protected activity that occurred in October of 2014 proceeded by 1 month the November 2014 re striction on his duties, we find that the appellant has established the timing prong of the knowledge/timing test with respect to the duty restrictions action See Salerno , 123 M.S.P.R. 230 , ¶ 14 . Further, because the October 2014 grievance described in allegation 14 was sent directly to the appellant’s supervisor and that supervisor was responsible for this acti on, we also find that the appellant’s allegations meet the knowledge prong of the knowledge/timing test. Accord ingly, we find that the appellant nonfrivolously alleged that he made at least one p rotected disclosure or engaged in at least one protected activity that was a contributing factor in the agency’s decision to place him on unauthorized duty restrictions. The appellant nonfrivolously alleged that at least one protected disclosure or protect ed activity was a contributing factor in the agency’s decision to place him on administrative leave. ¶38 The appellant alleged that the Lt. Col. placed him on administrative leave in October 2015. IAF, Tab 15 at 12. Regarding allegation 16, the appellant alleged that he disclosed that a coworker had improperly accessed and shared his personal files in violation of the agency’s PII policy to his direct supervisor and the Lt. Col. on or around October -November 2014. PFR File, Tab 6 at 26. Becaus e the appellant has alleged that the Lt. Col. was responsible for his placement on administrative leave and the Lt. Col. had knowledge of the disclosure contained in allegation 16, we find that the appellant’s allegations meet the knowledge prong of the know ledge/timing test. Additionally, because the appellant has alleged that his placement on administrative leave occurred approximately 1 year after the disclosure, we find that his allegation s meet the timing prong of the knowledge/timing test. See Salerno , 123 M.S.P.R. 230 , ¶ 14. Accordingly, we 24 find that the appellant nonfrivolously alleged that he made at least one protected discl osure or engaged in at least one protected activity that was a contributing factor in the agency’s decision to place him on administrative leave. The appellant nonfrivolously alleged that at least one protected disclosure or activity was a contributing fa ctor in the agency’s decision to remove him. ¶39 The record shows that the Colonel (Col.) issued the notice removing the appellant on February 17, 2016. IAF, Tab 1 at 7, 10. Looking again at the appellant’s allegation 16 , which is discussed directly above, the appellant asserted that he made this disclosure sometime in October or November 2014 to his direct supervisor and the Lt. Col. PFR File, Tab 6 at 26. Because this time period is within 2 years of the date of his removal, we find that the appellant ha s met the timing prong of the knowledge/timing test. See Salerno , 123 M.S.P.R. 230, ¶ 14 . Further, although the appellant has not alleged that the Col. himself was aware of this disclosure, he has alleged that it was actually the Lt. Col. who prompted the removal action and that the Lt. Col . was aware of this disclosure. PFR File, Tab 6 at 26. As we explained above , an agency official responsible for the action has constructive knowledge of a disclosure if a person with actual knowledge influenced the responsible official’s action. See Wells , 102 M.S.P.R. 36, ¶ 8. Here, because the appellant has alleged that the Lt. Col. influenced the ultimate decision to remove him from his position and that he had actual knowledge of this disclosure , PFR File, Tab 6 at 26 , we find that the appellant has alleged that the Col. had constructive knowledge of the disclosure , see Wells , 102 M.S.P.R. 36 , ¶ 8 . Thus, the appellant’s allegations also meet the knowledge prong of the knowledge /timing test. Accordingly, we find that the appellant nonfrivolously alleged that he made at least one protected disclosure or engaged in at least one protected activity that was a contributing factor in the agency’s decision to remove him. 25 CONCLUSION ¶40 Based on the foregoing, we find that the appellant proved by preponderant evidence that he exhausted 20 allegations of protected d isclosures and activities with OSC and made a nonfrivolous allegation that at least one personnel action was taken in retaliation for at least one alleged protected disclosure or protected activity. See Skarada , 2022 MSPB 17 , ¶ 13 . Specifically, we find that the appellant nonfrivolously alleged that (1) his April 2013 grievance, as discussed in allegation 9, was a contribut ing factor in the agency’s decision to deny him overtime pay in November of 2014 and a year -end bonus in 2014; (2) his October 2014 grievance , as discussed in allegation 14 , was a contributing factor in the agency’s decision to deny him a year -end bonus in 2015; (3) his October 2014 grievance, as discussed in allegation 14, was a contributing factor in the agency’s decision to place him on duty restrictions in November of 2014; and ( 4) his disclosure regarding a coworker’s improper access and sharing of per sonal files in violation of the agency’s PII policy, as detailed in allegation 16, was a contributing factor in the agency’s decision to place him on administrative leave and to remove him. Although we have not considered here whether the appellant has no nfrivolously alleged that all of his alleged protected disclosures and protected activities were contributing factors to the personnel actions set forth above , we find that the appellant established Board jurisdiction over his IRA appeal. See id . ¶41 Because we have not fully resolved the Board’s jurisdiction with respect to each of the appellant’s individual claims, we remand the appeal to the administrative judge for a full and complete discussion of whether the appellant nonfrivolously alleged that t he remainder of his alleged protected disclosures and protected activities were contributing factors in the personnel actions discussed above. Thereafter , the administrative judge should hold a hearing on the merits where the appellant must prove by prepo nderant evidence that he made a protected disclosure or engaged in a protected activity that was a contributing 26 factor in a personnel action.14 If the appellant makes such a showing, the agency shall have the opportunity to prove by clear and convincing ev idence that it would have taken the personnel action even in the absence of the appellant’s protected disclosure or protected activity.15 See 5 U.S.C. § 1221 (e); Lu, 122 M.S.P.R. 335 , ¶ 11. ORDER ¶42 For the reasons discussed above, we grant the appellant’s petition for review, reverse the initial decision, find that the Boa rd has jurisdiction over his appeal, and remand this case to the Western Regional Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennife r Everling Acting Clerk of the Board 14 The merits hearing should be limited only to the claims over which the administrat ive judge finds jurisdiction and the claims over which we have found jurisdiction here. 15 We have reviewed the relevant legislation enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal.	COULTER_CHRISTOPHER_SF_1221_17_0522_W_1_REMAND_ORDER_2049091.pdf	2023-07-12	null	SF-1221	NP
2,920	https://www.mspb.gov/decisions/nonprecedential/RACHOR_WILLIAM_SF_0752_17_0599_I_1_FINAL_ORDER_2048437.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD WILLIAM RACHOR, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER SF-0752 -17-0599 -I-1 DATE: July 11, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charles F. Lee , Esquire, Roseburg, Oregon, for the appellant. Mandeev Singh Brar , Portland, Oregon, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a p etition for review of the initial decision, which affirmed the agency’s removal action. On petition for review, the appellant challenges the administrative judge’s finding that the agency proved its charge of failure to follow standard operating procedure s. Petition for Review File, Tab 1. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 d iscretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulat ions, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 fo r granting 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). NOTI CE 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 appropria te forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which opti on is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately r eview 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 w hich 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) Judici al review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.usco urts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither en dorses 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 you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for rev iew 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 Enhan cement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competen t 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, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower 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 judic ial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Pract ice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono rep resentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD : Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	RACHOR_WILLIAM_SF_0752_17_0599_I_1_FINAL_ORDER_2048437.pdf	2023-07-11	null	SF-0752	NP
2,921	https://www.mspb.gov/decisions/nonprecedential/CULLENS_CEVEN_T_DA_0752_17_0280_I_2_FINAL_ORDER_2048464.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CEVEN T. CULLENS, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DA-0752 -17-0280 -I-2 DATE: July 11, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jeff T. Schrameck , Esquire and Joel J. Kirkpatrick , Esquire , Plymouth, Michigan, for the appellant. Gloria Briseno , Texarkana, 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 affirmed his removal . On petition f or review, the appellant reasserts his arguments that the agency failed to prove all three charges and that removal is an unreasonable and disparate penalty . Generally, we grant petitions such as this 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evi dence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review.2 Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit 2 In analyzing the appellant’s disparate penalty claim, the administrative judge cited Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657 (2010). Refiled Appeal File, Tab 19, Initial Decision (ID) at 21 . The Board has since overruled Lewis 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. Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 14. Nevertheless, t he administrative judge’s reference to the standard set forth in Lewis was not prejudicial in this case beca use she properly found that the appellant failed to satisfy even that less onerous standard. ID at 20-22. 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 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and req uirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final B oard order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Pl ace, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appella nts,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 4 http://w ww.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept rep resentation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based , in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calen dar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer a nd to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decisio n. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, 5 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washingt on, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial pet ition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 6 review within 60 days of the date of issuance of this deci sion. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services p rovided by any attorney nor warrants that any attorney will accept representation in a given case. 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. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CULLENS_CEVEN_T_DA_0752_17_0280_I_2_FINAL_ORDER_2048464.pdf	2023-07-11	null	DA-0752	NP
2,922	https://www.mspb.gov/decisions/nonprecedential/HARPER_KENDALL_DC_0752_21_0560_I_1_FINAL_ORDER_2048582.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KENDALL HARPER, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER DC-0752 -21-0560 -I-1 DATE: July 11, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Matthew D. Estes , Esquire, Washington, D.C., for the appellant. Anakah Harrison , Esquire, Jennifer B. Toler , Esquire, and Ralph H. Kohlmann , Esquire, Cherry Point, North Carolina, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which reversed the appellant’s removal . On petition for review, the agency argues that the administrative judge improperly added an intent element to the dereliction of duty charge and in correctly weighed the evidence with respect to the dereliction 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decis ions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 of duty and lack of candor charges . Petition for Review (PFR) File, Tab 1. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains e rroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the a ppeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitione r’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the 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). 2 Regarding the agency’s argument that the administrative judge added an intent element to the dereliction of duty charge, PFR File, Tab 1 at 9, 16 -22, we recognize that a charge of dereliction of duty, similar to a charge of negligence in t he performance of duties, does not contain an intent element, see Thomas v. Department of Transportation , 110 M.S.P.R. 176 , ¶ 9 (2008) (explaining that, to prove negligence, the agency must show a failure to exercise the degree of care required in the circumstances, which a person of ordinary prudence in the same situation and with equal experience would not omit ), aff’d , 330 F. App’x. 9 20 (Fed. Cir. 2009) . However, the administrative judge’s principal finding was that the agency failed to prove that the appellant was derelict in his duties by failing to confirm from any markings or labeling on the sealant bag that he had obtained and pr ovided to his coworkers the correct sealant. Initial Appeal File, Tab 27, Initial Decision at 13 -14. This finding is not dependent on the appellant’s intention. Any discussion regarding the appellant’s intent does not appear to be germane to this dispos itive finding. Thus, to the extent the administrative judge’s discussion of the appellant’s good faith and genuine belief constitutes error, such error did not prejudice the agency’s substantive rights, and thus, does not provide a basis for reversal of t he 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 n ot prejudicial to a party’s substantive rights provides n o basis to reverse an initial decision). 3 ORDER ¶2 We ORDER the agency to cancel the removal and to retroactively restore appellant t o duty effective June 30, 2021. See Kerr v. National Endowment for the Ar ts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶3 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to coopera te 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 p ay, 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. ¶4 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶5 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board ’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182 (a). ¶6 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or t he Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision 4 are attached. The agency is ORDERED to timely provide DFAS or NFC with all docum entation 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 APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND COS TS 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 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 and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 filing time limits and re quirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representati ve receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, nati onal origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for re view 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 Enha ncement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of compete nt 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 origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 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 fol lowing 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 d ocumentation 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. TS P, 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/rec ords, 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 Payme nt 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 payrol l 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 mu st 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 unemploy ment, 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 informati on 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.	HARPER_KENDALL_DC_0752_21_0560_I_1_FINAL_ORDER_2048582.pdf	2023-07-11	null	DC-0752	NP
2,923	https://www.mspb.gov/decisions/nonprecedential/PRYSTALSKI_SHARON_M_SF_0752_16_0577_I_1_FINAL_ORDER_2048590.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SHARON M. PRYSTALSKI , Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER SF-0752 -16-0577 -I-1 DATE: July 11, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Bradley R. Marshall , Charleston, South Carolina, for the appellant. Douglas W. Frison , Esquire, APO /AP, for the agency. BEFORE Cathy A. Harris, Vice Ch airman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained her removal for failure to follow instructions. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of materi al 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 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 law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decisi on were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting 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 ¶2 Effective June 17, 2016, the agency removed the appellant from her School Psychologist position with the Daeg u American School, Department of Defense Education Activity (DODEA ), based on a charge of failure to follow instructions (2 specifications) . Initial Appeal File (IAF), Tab 5 at 12, 24 . In support of the charge, the agency alleged that the appellant twice failed to comply with the Assistant Pr incipal’s instruction s to provide him the following information: an updated list of the students for whom she was providing services at the school; the reason each ch ild was referred for services; the start date of s ervices for each child; and the total number of sessions she provided for each child. IAF, Tab 6 at 12, 15 -16, 21. ¶3 The appellant filed a Board appeal challenging her removal , and she requested a hearing. IAF, Tab 1. She raised several affirmative defenses but withdrew them during the hearing. IAF, Tab 1 at 5; Tabs 21, 25 ; Hearing Transcript (HT), December 5, 2016, at 5. ¶4 Following a hearing, the administrative judge issued an initial decision that affirmed the appellan t’s removal. IAF, Tab 32, Initial Decision (ID) at 1, 14. 3 The administrative judge found that the agency proved the charge and both specifications. ID at 12. The administrative judge also found that the agency proved nexus and that the penalty of remov al is reasonable. ID at 13 -14. ¶5 The appellant has filed a petition for review , Petition for Review (PFR) File, Tab 3 ,2 to which t he agency has respon ded in opposition , PFR File, Tab 4. The appellant has filed a reply to the agency’s response. PFR File, T ab 6. DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge correctly found that the agency proved the charge by preponderant evidence. ¶6 To prove a charge of failure to follow instructions, an agency must establish that the employee was given proper instructions and she failed to follow the instructions, without regard to whether the failure was intentional or unintentional. Archerda v. De partment of Defense , 121 M.S.P.R. 314 , ¶ 16 (2014). Even when the employee may have substantial reason to question the instructi ons, absent unusual circumstances, such as when obedience would cause her irreparable harm or place h er in a clearly dangerous situation or when the instructions are clearly unlawful, she must first comply with the instructions and then, if she disagrees w ith them, register h er complaint or grievance later. Pedeleose v. Department of Defense , 110 M.S.P.R. 508 , ¶¶ 16, 18, aff’d , 343 F. App’x 605 (Fed. Cir. 2009); Larson v. Department of the Army , 91 M.S.P.R. 511, ¶ 21 (2002). ¶7 Applying th ese standard s, the administrative judge found that the Assistant Principal gave the appellant proper instructions and that she failed to fully comply with them . ID at 7 . The administrative judge further found that the appellant did not show that providing the requested inf ormation was clearly 2 With her petition for review, the appellant submits the hearing transcript in this appeal. PFR File, Tab 3 at 28 -244. Because the transcript is already part of the record, IAF, HT, it does not co nstitute new evidence. See Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980). 4 unlawful so as to excuse her noncompliance with the instructions. ID at 9. The administrative judge therefore sustained the charge. ID at 12. ¶8 On review, the appellant argu es that the Assistant Principal’s instructions violated vario us laws, agency policies, and professional ethics standards that prohibit psychologists from disclosing confidential information. PFR File, Tab 3 at 10-23. The administrative judge thoroughly addressed th is argument in the initial decision and found that the appellant was not precluded by law or professional ethics from providing the Assistant Principal with the requested information. ID at 8 -12. In making this finding, the administrative judge considered each item of information that the Assistant Principal asked the appellant to provide and found that none of the requested information is confidential. ID at 9-10. For example, the administrative judge found that the reason for counseling is not confidential to the school psychologist inasmuch as DODEA Manual 2946.4 contains a form for requesting services from the school psychologist which directs the individual completing the form to identify the reason for the request . ID at 9. The administrative judge further f ound that for school personnel to work collaboratively and manage resources, the information at issue must be shared with administrators when requested. ID at 10. ¶9 Although the appellant clearly disagrees with the administrative judge’s finding that disclosing the information would not be clear ly unlawful, she has failed to show any legal error in the administrative judge’s analysis. See 5 C.F.R. § 1201.115 (b). Therefore, she has failed to provide a reason to disturb the administrative judge’s finding that the agency proved the charge. 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 references, and made reasoned conclusions); see also 5 Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same).3 The administrative judge correctly found that the pena lty of removal is reasonable. ¶10 The appellant also argues on review that the agency improperly applied the Douglas factors4 in deciding to remove her and that the penalty of removal is too severe .5 PFR File, Tab 3 at 23 -25. Whe n, as here, the agency’s charge is sustained, the Board will review the agency -imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion within tolerable limits of reasonableness. Wiley v. U.S. Postal Service , 102 M.S.P.R. 535 , ¶ 14 (2006), aff’d , 218 F. App’x 1001 (Fed. Cir. 2007). In reviewing such a penalty, 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. Miles v. Department o f the Navy , 102 M.S.P.R. 316 , ¶ 12 (2006). The Board will modify a penalty only when it finds that the agency failed to weigh the r elevant factors or that it clearly 3 To the extent the appellant may be arguing that her decision to not follow the Assistant Principal’s instructions was covered by the Follow the Rules Act, Pub. L. No. 115-40, 131 Stat. 861 (2017) , which states that Federal workers are now protected under w histleblower laws from retaliation for refusing to obey orders that violate rules and regulations and not just statutes, the Board, in Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 19, determined that this Act —which was signed into law on June 14, 2017 —would not be applied retroactively. See 5 U.S.C. § 2302 (b)(9)(D). For that reason, we have not applied this law to this case. 4 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981), the Board articulated a nonexhaustive list of 12 factors that are relevant in assessing the appropriate penalty for an act of misconduct. These so -called Douglas factors include the nature and seriousness of the offense, the appellant’s past disciplinary record, her past work record, her potential for rehabilitation, and mitigating circumstances surrounding the offense. Id. 5 The appellant does not challenge the administrative judge’s finding that the agency proved nexus. ID at 13. We discern no reason to disturb this finding. 6 exceeded the bounds of reasonableness in determining the penalty. Adam v. U.S. Postal Service , 96 M.S.P.R. 492 , ¶ 5 (2004). ¶11 The decision letter and the deciding official’s written analysis of the Douglas factors demonstrate that she properly weighed these factors in deciding to remove the appellant. IAF, Tab 5 at 24 -33. The deciding offi cial found that the appellant’s misconduct was “very serious” as it relates to the appellant’s duties and responsibilities. Id. at 24. The deciding official also considered that the appellant had two recent instances of prior discipline (a letter of repr imand and a 5 -day suspension) for similar misconduct and that removal is within the range of penalties set forth in the D ODEA Schedule of Offenses and Recommended Penalties. Id. at 24 -25, 28 -29, 146; IAF, Tab 6 at 24 -25, 31 -32. ¶12 The deciding official also found that, although the appellant had over 13 years of Federal service, she is not dependable or reliable. IAF, Tab 5 at 28. In addition, the deciding official concluded that the appellant’s misconduct caused management to los e all trust and confidence in her ability to perform her assigned duties and that her potential for rehabilitation was doubtful, given her disciplinary record and her repeated failure to follow instructions. Id. at 25, 29. ¶13 In assessing the reasonableness of the agency’s penalty, the administrative judge noted the factors that the deciding official considered in making her penalty determination and found that the agency showed that removal was within the bounds of reasonableness. ID at 14. Recognizing tha t the Board must accord proper deference to the agency’s primary discretion in managing its workforce, we see no reason to disturb this finding. See Douglas , 5 M.S.P.R. at 306. ¶14 Accordingly, we affirm the initial decision. 7 NOTICE OF APPEAL RIG HTS6 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for yo ur situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to y our claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of rev iew below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a g eneral rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this dec ision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receiv es this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national orig in, or a disabling condition, you may be entitled to representation by a court ‑appointed lawyer and to waiver of any 9 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. d istrict courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, yo u may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request wi th the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative recei ves this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office o f Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federa l Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 10 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Fede ral Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are intere sted in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appel lants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the Presiden t on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent juris diction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	PRYSTALSKI_SHARON_M_SF_0752_16_0577_I_1_FINAL_ORDER_2048590.pdf	2023-07-11	null	SF-0752	NP
2,924	https://www.mspb.gov/decisions/nonprecedential/ANYAOHA_CYRIL_R_SF_844E_18_0424_I_1_REMAND_ORDER_2048617.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CYRIL R. ANYAOHA, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER SF-844E -18-0424 -I-1 DATE: July 11, 2023 THIS ORDER IS NONPRECEDENTIAL1 Henry E. Leinen , Pacific Grove, California, for the appellant. Cynthia Reinhold , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member REMAND ORDER ¶1 The appellant has filed a petit ion for review of the initial decision, which dismissed his disability retirement annuity appeal for lack of jurisdiction, finding that the Office of Personnel Management (OPM) had failed to issue a requisite final decision. For the reasons discussed belo w, we GRANT the appellant’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). 2 petition for rev iew, VACATE the initial decision, and REMAND the case to the Western Regional O ffice for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 OPM approved the appellant’s disability retirement based on depression and post-traumatic stress disorder (PTSD) conditions in 2012 . Initial Appeal File (IAF) , Tab 1 at 8 . It terminated his disability retirement annuity on June 30, 2015 , based on its determination that the appellant had returned to earning capacity . Id. at 7-8. After the appellant contacted OPM about reinstating his disability annuity, OPM provided him with information on how to apply for reinstatement. Id. at 7. On March 27, 2017, OPM issued an initial decision stating that it had n ot received the required documentation from the appellant , and thus he had not met all requirements for reinstatement of his disability annuity . Id. at 8. OPM’s initial decision stated that the appellant had 30 calendar days to request reconsideration of the decision. Id. The decision further stated that if the appellant failed to submit his request for reconsideration within the time limit, OPM would dismiss his request as untimely unless he can show that he was unaware of the time limit, not notified of the time limit, or prevented from responding by circumstances beyond his control. IAF, Tab 5 at 7. The initial decision was signed by a Legal Administrative Specialist within the Disability, Reconsideration and Appeals division of OPM. Id. ¶3 Although not stated in the record, the 30 -calen dar-day time limit in which the appellant had to request reconsideration of the initial decision lapsed on April 26, 2017. Apparently in response to the Mar ch 27, 2017 letter, o n May 2, 2017, the appellant emailed the same Legal Administrative Specialist who issued the initial decision stating : I would like to have some extra time to provide the [information requested]. I am receiving care from the [Veterans Administration ] Oakland mental health program. I am rec eiving help with a social 3 worker and clinical psychiatrist nurse practitioner who would like to know if they can contact you to see what you need in terms of providing [the requi site documentation you need]. IAF, Tab 3 at 7 -8. That same day, the Legal Adm inistrative Specialist responded to his email saying that “there is no need to worry because this is just the initial decision” and that, if the appellant cannot get the requisite documents wi thin the 30-day time limit, he could “ request reconsideration wh ich is very easy to do.” Id. at 7. The Legal Administrative Specialist went on to state that, in order to do so, the appellant only need ed to “sign and date the reconsideration request and fax or mail it back to the office within 30 days.”2 Id. ¶4 The fo llowing day, on May 3, 2017, the appellant responded to the chain of emails saying that, per their conversation, he had attached a signed and dated letter requesting reconsideration. Id. The Legal Administrative Specialist responded , saying that she is n o longer involved in the appellant’s case. Id. at 6. She also provided an address to which the appellant needed to send his request for reconsideration and stated that “[a] request for reconsideration must be received in OPM within 30 calendar days of th e date of this letter .” Id. (emphasis added). The appellant responded , saying that it “sounds to me that I need to submit a letter to request a reconsideration to the addre ss you provided below within 30 days of this letter to review the decision to my case.” Id. The Legal Administrative Specialist responded “correct.” Id. ¶5 On May 30, 2017, the appellant formally requested reconsideration of the reinstatement decision regarding his disability annuity. IAF, Tab 1 at 9. The agency appears to have conceded below that the appellant requested reconsideration on May 30, 2017. IAF, Tab 5 at 4. The request stated that it was filed late due to processing of the appellant’s documents through the Department of Veterans Affairs (VA) and attached documentation from the VA stating that he 2 This entire email conversation took place after the original 30 -day time limit on the initial decision had already lapsed. 4 continued to receive therapy, treatment, and medication for his PTSD and depression. IAF, Tab 1 at 9-10. ¶6 On August 29, 2017, seemingly in response to an email from the appella nt, a different Legal Administrative Specialist with OPM emailed the appellant , saying that she was not assigned to his case but would forward his email to the correct party and that, “[a]ccording to the system, your case is active.” IAF, Tab 3 at 9. On September 14, 2017, the appellant emailed OPM retirement services , stating “I’m not sure what’s going on, I’ve tried several times to inquiry from [sic] OPM” and that “I need my disability annuity and I’m not sure if the request I sent to restore my annuit y is still pending for reconsideration.” Id. at 10-11. He received an automated response from OPM. Id. ¶7 On October 27, 2017, the appellant emailed a third Legal Administrative Specialist , stating that he was trying to get reinstatement of his disability annuity and was enclosing clinical documentation detailing the status of his depression and PTSD conditions. IAF, Tab 1 at 13. He further stated that he had not returned to his prior earning capacity , and he attached his Leave and Earning s statement from his current employer. Id. Over the next several days, the appellant exchanged emails with this third Legal Administrative Specialist , ironing out the specific documents the appellant needed to provide. Id. at 12 -13. The appellant provided his 2016 W -2 tax return and offered to provide any other requisite documentation . Id. On November 22, 2017, the third Legal Administrative Specialist informed the appellant that his “case is in our Disability, Reconside ration, & Appeals Branch for a medical review. A decision has not yet been made.” Id. at 12. On January 10, 2018, the appellant emailed the third Legal Administrative Specialist , inquiring about the status of his case and again offer ing to provide any a dditional documents as needed. Id. The record does not show any response to this last email. ¶8 On April 4, 2018, the appellant filed an appeal with the Board stating that OPM had failed to issue a final decision “for reasons unknown” and asked the 5 Board to order OPM to reinstate his disability annuity. IAF, Tab 1 at 6. On April 17, 2018, OPM filed a motion to dismiss for lack of jurisdiction. IAF, Tab 5 at 4-5. According to OPM, “the appellant requested reconsideration of the initial decision on May 3 0, 2017; however the appellant has not received any appealable decision from OPM.” Id. at 4. Because OPM had not issued a final decision on the appellant’s request for reconsideration, OPM argued, the Board lacked jurisdiction. Id. at 4-5. ¶9 The administrative judge issued an initial decision declining to find that OPM had refused or improperly failed to issue a final decision. IAF, Tab 6, Initial Decision (ID) at 6. Rather, due to the emails and communications between the appellant and various persons at OPM, the administrative judge found that OPM had his reconsideration request before it and was working towards a decision. ID at 6 -7. Accordingly, the administrative judge granted OPM’s motion to dismiss and dismissed the appeal for lack of ju risdiction without a hearing. ID at 7. ¶10 On June 15, 2018, OPM issued its final decision in the matter. Petition for Review (PFR) File, Tab 3 at 6. The final decision state d that the appellant’s request for reconsideration was received by OPM beyond the allowable time limit. Id. It further state d that, because his request for reconsideration was untimely, OPM could only reconsider its initial determination if he could show either (1) that he was not notified of the time limit o r otherwise aware of it, or (2) that he was prevented by circumstances beyond his control from making the request within the time limit. Id. According to OPM, they sent the appellant a letter on May 10, 2018, requesting evidence to show why his request for reconsideration was un timely, but he failed to respond.3 Id. Because he failed to present sufficient evidence on the timeliness issue , his request for reconsideration 3 Other than this reference in OPM’s final decision, this May 10, 2018 communication from OPM to the appellant is absent from the record. 6 was dismissed as untimely filed. Id. The final decision stated that the appellant may appeal the matter to the Board within 30 calendar days. Id. at 6-7. ¶11 Following OPM’s final decision, on July 9, 2018, the appellant filed a petition for review, to which OPM has resp onded . PFR File, Tab s 3, 5. The appellant reiterates his claims on the merits of his annuity determination and additionally states that his request for reinstatement was delayed because he had to produce medical records from the VA, which was a circumstance beyond his control. PFR File, Tab 3 at 4-5. The appellant alternatively requests that his petition for review be considered an appeal from OPM’s final decision. Id. at 5. DISCUSSION OF ARGUME NTS ON REVIEW ¶12 When OPM dismisses an individual’s request for reconsideration of an initial decision as untimely, the Board has jurisdiction over an app eal regarding the timeliness determination. Kent v. Office of Personnel Management , 123 M.S.P.R. 103 , ¶ 7 (2015). The Board will rev erse a decision by OPM dismissing a reconsideration request on timeliness grounds only if it finds that the dismissal was unreasonable or an abuse of discretion. Id. If the Board determines that OPM’s timeliness determination was unreasonable or an abuse of discretion, Board jurisdiction then attaches to the merits of the appeal. Id. ¶13 Under both the Civil Service Retirement System (CSRS) and the Federal Employees ’ Retirement System (FERS) , a request for reconsideration of an initial decision issued by O PM regarding retirement benefits generally must be r eceived by OPM within 30 calendar days from the date of the initial decision. Id.; 5 C.F.R. §§ 831.109 (e)(1), 841.306(d)(1).4 OPM’s regulations provide that OPM may extend the time limit when the individual shows either that (1) he was not 4 It is not clear from the record whether the appellant is covered under CSRS or FERS; however, this distinction is no t relevant for purposes of our analysis here as the applicable regulatory standards governing the timeliness of reconsideration requests under CSRS and FERS are essentially identical. See Kent , 123 M.S.P.R. 103 , ¶ 8 n.5 (citing 5 C.F.R. §§ 831.109 (e), 841.306(d)). 7 notified of the time limit and was not otherwise aware of it, or (2) he was prevented by circumstances beyond his control from making the re quest within the time limit. Kent , 123 M.S.P.R. 103 , ¶ 8; 5 C.F.R. §§ 831.109 (e)(2), 841.306(d)(2). In relevant part, the regulation s state that an “[OPM] representative . . . may extend the time limit.” 5 C.F.R. §§ 831.109 (e)(2), 841.306(d)(2 ). If an appella nt show s that he qualified for an extension of the time limit under OPM’s regulations, the Board will then consider whether OPM acted unreasonably or abused its discretion in refusing to extend the time limit and dismissing his request for recon sideration as untimely filed. Kent , 123 M.S.P.R. 103 , ¶ 8. ¶14 Here, 6 calendar days after his request for reconsideration was due, the appellant asked OPM for “extra time .” IAF, Tab 3 at 7 -8. OPM responded that the request must be received by OPM “within 30 calendar days of the date of this letter .”5 Id. at 6 -7 (emphasis added) . Accordingly, we find that the OPM representative extended the time limit for the appellant to request reconsideration to 30 days after the May 3, 2017 email exchange, or June 2, 2017. Although OPM is aware of the timeliness issue on review , it has not addressed it. PFR File, Tab 5. Instead, it argues that the appellant must file a new appeal of the reconsideration decision. PFR File, Tab 5 at 6. OPM is mistaken. The Board’s practice is to adjudicate an appeal that was premature when it was filed but becomes ripe while pending with the Board. Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313 , ¶ 9 (2010). ¶15 Our conclusi on that OPM extended the appellant’s time to request reconsideration is further supported by the fact that a t no point throughout the appellant’s case, including in OPM’s responses to his Board appeal, did any representative from OPM reference that his ori ginal request for reconsideration was untimely. Rather, the various OPM representatives continually sought to 5 The date of that “letter” was May 3, 2017. IAF, Tab 3 at 6. 8 work with the appellant to compile the requisite information and documents necessary to make a final decision on the merits of his disability ret irement annuity. IAF, Tab 3 at 6 -9, 12 -14. It was n ot until after the administrative judge issued the initial decision , and more than 1 year after OPM’s initial decision, that OPM first referenced the untimeliness of the appellant’s request for reconside ration. PFR File, Tab 3 at 6 -7. ¶16 Because the appellant filed his request for reconsideration within the extended time limit provided by OPM , the Board’s jurisdiction attaches to the merits of the appeal. Kent , 123 M.S.P.R. 103 , ¶ 7. The Board will now consider the disability retirement eligibility issue de novo . See Licausi v. Office of Personnel Management , 350 F.3d 1359 , 1364 (Fed. C ir. 2003) (“Because the Board engages in de novo consideration of the [disability retirement] eligibility issue, it is not c onfined to either upholding OPM’ s decision on the ground invoked by OPM or remanding to OPM for further proceedings.”); Ancheta v. Office of Personnel Management , 95 M.S.P.R. 343 , ¶¶ 18 -19 (2003) (finding under Licausi that it was unnecessary to remand a disability retirement appeal to OPM for a new reconsideration de cision addressing the appellant’ s ability to render useful and efficient service and instead remanding to the Board’ s regional office for further proceedings) . Thus, on remand, if the administrative judge “is persuaded that the employee has met his or her burden of showing entitlement to benefits, [he] will dire ct that benefits be awarded; otherwise, [he] will sustain the denial of benefits.” Licausi , 350 F.3d 1359 , 1364. 9 ORDER ¶17 For the reasons discussed above, we remand this case to the Western Regional O ffice for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ANYAOHA_CYRIL_R_SF_844E_18_0424_I_1_REMAND_ORDER_2048617.pdf	2023-07-11	null	SF-844E	NP
2,925	https://www.mspb.gov/decisions/nonprecedential/OXBERRY_CAMERON_C_SF_0752_17_0350_I_1_FINAL_ORDER_2047841.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CAMERON C. OXBERRY, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER SF-0752 -17-0350 -I-1 DATE: July 10 , 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Cameron C. Oxberry , Solana Beach, California, pro se. Nelson Wong , Esquire, San Diego, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has file d a petition for review of the initial decision, which dismissed his appeal as untimely filed. Generally, we grant petitions such as this one only in the following circumstances : the initial decision contains erroneous findings of material fact; the init ial 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 dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c). 2 interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge ’s rulings during either the course of the appeal or the initial decision were not consi stent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner ’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in th is appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. However, for the reasons set forth below, we VACATE the initial de cision and DISMISS the appeal for lack of jurisdiction . BACKGROUND ¶2 On August 3, 2009, t he appellant entered on duty as a Border Patrol Agent in Calexico, California . Initial Appeal File (IAF), Tab 5 at 106. Effective August 12, 2012, he resigned from the agency to go to law school. Id. at 128, 145. In January 2015, after he had graduated from law school, the appellant submitted a request for reinstatement to his former position. Id. at 123 -24. The San Diego Sector Chief Patrol Agent approved the appellant ’s req uest for reinstatement on or about October 28, 2015. Id. at 10. On or about March 23, 2016, the Minneapolis Hiring Center extended the appellant an offer of employment as a Border Patrol Agent, noting that it was contingent upon his successful completion of all preemployment requirements, including a background investigation and a polygraph examination. Id. at 99 -100. The appellant accepted the conditional offer the same day. Id. at 99. ¶3 On or about June 2, 2016, the agency ’s Office of Professional Responsibility informed the agency ’s Office of Human Resources Management that the appellant did not s uccessfully complete a polygraph examination, id. 3 at 32, and, on or about June 9, 2016, the agency notified the appellant that his tentative offer of empl oyment was rescinded for that reason, id. at 30 -31. ¶4 On April 5, 2017, the ap pellant filed this Board appeal. IAF, T ab 1. He requested a hearing. Id. The administrative judg e issued a jurisdictional order informing the appellant that the Board may not h ave jurisdiction over his 2012 resignation and ordering the appellant to file evidence and argument establishin g a nonfrivolous allegation of Board jurisdiction. IAF, Tab 2. The appellant responded. IAF, Tabs 4, 10, 11. The reafter, the administrative j udge issued an initial decision that dismissed the appeal as untimely filed. IAF, Tab 14, Initial Decision (ID). Relying on Popham v. U.S. Postal Service , 50 M.S.P.R. 193 , 197 (1991), the administrative judge found that, in light of his finding on the timeliness issue, he need not address the issue of Board jurisdiction. ID at 6. ¶5 In his petition for review,2 the appellant argues, as he did below, that he established good cause for his delay in filing an appeal. Petition for Review (PFR) File, Tab 1 . The agency has responded in opposition to the petition. PFR File, Tab 3. ANALYSIS ¶6 The existence of Board jurisdiction is the threshold issue in adjudicating an appeal. However, in an untimely appeal, a jurisdictional determination is not deemed to be in the Board ’s interests of adjudicatory efficiency and fairness to the parties involved if the record is sufficiently developed to show that th e appeal should be dismissed because no good cause exists for the untimely filing. See 2 Attached to the appellant ’s petition for review are records of emails and telephone calls that he made to the agency ’s Human Relations Office showing that he consulted them before he resigned. 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 par ty’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). The records from 2012 submitted by the appellant were ava ilable before the record closed; thus, we will not consider them. 4 Higgins v. U.S. Postal Service , 86 M.S.P.R . 447 , ¶ 6 (2000 ). Such an approach is not appropriate , however, if the jurisdictional and timeliness issues are “inextricably intertwined ”; that is, if resolution of the timeliness issue depends on whether the appellant was subjected to an appealable act ion. Id. Because the issues of timeliness and jurisdiction are inextricably intertwined in th is case, it was error for the administrative judge to dispose of the appeal on timeliness grounds. See id . ¶7 An appellant is entitled to the hearing on the issue of B oard jurisdiction if he makes a nonfrivolous allegation that his resignation was involuntary . See Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643 (Fed. Cir. 1985 ). For the reasons stated below , we find that the undisputed facts preclude a finding that the appellant made a nonfrivolous allegation of jurisdiction over this appeal ; thus, he has not established a right to the h earing that he request ed. ¶8 A decision to resign is presumed to be a voluntary act outside of the Board ’s jurisdiction, and the appellant bears the burden of showing that his resignation was involuntary and therefore tantamount to a forced removal. Garcia v. Department of Homeland Security , 437 F.3d 1322 , 1329 -30 (Fed. Cir. 2006). One means by which an appellant may overcome the presumption of involuntariness is by showing that the resignation was obtained by agency misinformation or deception. Covington v. Department of Health and Human Services , 750 F.2d 937 , 942 (Fed. Cir. 1984) . When an appellant claims that his decision to resign was the result of agency misinformati on, he must show the following: (1) the agency made misleading statements; and (2) he reasonably relied on the misinformation to his detriment. Salazar v. Department of Army , 115 M.S. P.R. 296 , ¶ 9 (2010). ¶9 On appeal, t he appellant a sserted that, before resigning in 2012 to go to law school , he spoke to a n agency Human Resources (HR) representative who advised him that he would “not be subject to new hire parameters like a new applicant ” if he applied for reinstatement. IAF, Tab 1 at 5. The appellant contends that the 5 HR representative did not advise him that he would have to undergo a background investigation and take a polygraph examination if and when he would seek reinstat ement . Id. He contends that, a week before resigning in 2012 , he spoke to an Indianapolis Hiring Center representative who told him that he would not need to undergo a background investigation if he requested reinstatement. Id. at 6. The appellant alle ges that, if he had been told before he resigned that he would have to undergo a lengthy background investigation, including a polygraph examination, upon applying for reinstatement, he would not have resigned in 2012 . Id. ¶10 We find that the appellant has failed to nonfrivolously allege that he reasonably relied on agency misinformation to his detriment in making his decision to resign. First, while the appellant appears to allege that the agency’s HR representative provided him with misinformation, the a ppellant’s statements more accurately indicate that the HR representative did not provide him with a ny information regarding the background investigation. See Gaudette v. Department of Transportation , 832 F.2d 1256 , 1258 -59 (1987) (discussing the distinction between misinformation and “lack of information”) . We find no evidence in the record th at the agency knew that the appellant was operating under a misapprehension based upon the HR representative’s omission of information that would have required the agency to affirmatively correct his misunderstanding. See Johnson v. U.S. Postal Service , 66 M.S.P.R. 620 , 628 (1995). While the appellant contends that the Indianapolis Hiring Center representative explicitly advised him that he w ould not need to undergo a background investigation if he later applied f or reinstatement, we find that he failed to nonfrivolously allege that he reasonably relied on this information to his detriment. ¶11 Available to the appellant prior to his resignation in August 2012 was t he U.S. Custom and Border Protection (CBP) regulation on the agency ’s Reinstatement Program, issued on October 21, 2011 . The regulation provides that, before obtaining reinstatement : 6 [T]entative selectees must receive a favorable suitability adju dication for employment with [the agency] based on a completed 10-year Single Scope Background Investigation (SSBI) within the preceding five years. There is a high probability that any applica nt not cur rently employed by [the agency] may be required to successfully complete a polygraph examination. IAF, Tab 5 at 1 50. The Board may rely on the CBP regulation even though the agency submitted it because , in determining whether the appellant has made a nonfrivolous allegation of jurisdiction entitling him to a hearing, the Board may consider the agency ’s documentary submissions to the extent that the agency ’s evidence does not constitute mere factual contradiction of the appellant ’s otherwise adequate prima facie showing of jurisdiction . Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 , 329 (1994). The content of the agency ’s regulation is undisputed. ¶12 The appellant was aware that he had an SSBI in 2009, before the agency hired him . He should have known that , as set forth in the CBP regulation on the agency’s Reinstatement Program, he would have to complete an SSBI and a polygraph examination if he s ought reinstatement more than 5 years after 2009 . Here, he sought reinstatement in 2 015. Under the circumstances, we find that the appellant failed to make a nonfrivolous allegation that he reasonably relied on agency misinformation to his detriment in making his decision to resign in 2012 . Thus, he has failed to make a nonfrivolous allegation of Board jurisdiction entitling him to a jurisdictional hearing . Accordingly, we dismiss the appeal for lack of jurisdiction. ¶13 In light of our finding that the Board lacks jurisdiction over this appeal, we do not reach the timeliness issue. See Checketts v. Department of the Treasury , 91 M.S.P.R. 89 , ¶ 7 n.1 , aff’d, 50 F. App’x 979 (Fed. Cir. 2002) . Thus, we do not address the appellant ’s assertions in his petition for review that the administrative judge erred in finding that the petition was untimely filed. 7 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 th e appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each o f the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition t o 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 advis e which option is most appropriate in any matter. 8 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, ww w.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a re presentative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimi nation based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 9 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts. gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for revi ew to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 10 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 Circu it 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorn ey 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 A ct, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	OXBERRY_CAMERON_C_SF_0752_17_0350_I_1_FINAL_ORDER_2047841.pdf	Date not found	null	SF-0752	NP
2,926	https://www.mspb.gov/decisions/nonprecedential/SHARP_KAUFMAN_VICTORIA_M_NY_3330_17_0118_I_1_FINAL_ORDER_2047847.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD VICTORIA M. SHARP KA UFMAN, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER NY-3330 -17-0118 -I-1 DATE: July 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Victoria M. Sharp Kaufman , Woodmere, New York, pro se. Katie A. Chillemi , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such as 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 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 interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with requi red procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulati ons, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Bo ard’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 In December 2016, the appellant applied for a Paralegal Specialist position with the agency and claimed veterans ’ preference based on her spouse’s military service. Initial Ap peal File (IAF), Tab 10 at 36-54. The agency selected her for the position and provi ded her with a tenta tive offer. IAF, Tab 1 at 13 -15, Tab 10 at 34. The agency subsequently notified the appellant that it had determined that she was not entitled to the veteran s’ preference it ha d afforded her in the selection process and rescinded the offer . IAF, Tab 10 at 34. ¶3 The appellant filed a Board appeal alleging that the agency had erroneously determined that she was not entitled to veterans ’ preference in the selection process and req uested a hearing . IAF, Tab 1 at 2, 8-9. The administrative judge issued an order notifying the appellant of the requirements to establish Board jurisdiction over her claim under the Veterans Employment Opportunities Act of 1998 (VEOA) and directing the p arties to address jurisdiction , to which both parties responded . IAF, Tab s 3, 6-8. Based on the written record , the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID). Specifically, the administrative 3 judge found that the appellant had not made a nonfrivolous allegation that she was a preference eligible because she did not submit evide nce of her spouse’ s service -connected disability, a determination that he had a service -connected disability, or evidence that he was receiving compensation in connection with a disability. ID at 3-4. She further found that, although the appellant assert ed that her spouse had trouble retaining employment with the City of New York, she did not submit any evidence that her spouse was unable to qualify for employment with the Federal civilian service or the District of Columbia. ID at 4. ¶4 The appellant has f iled a petition for review, to which the agency has filed an opposition. Petition for Review (PFR) File, Tabs 1, 3. The appellant has filed a reply to the agency’s opposition. PFR File, Tab 6. As set forth below, we affirm t he initial decision. DISCUSS ION OF ARGUMENTS ON REVIEW ¶5 To establish Board jurisdiction over a VEOA appeal alleging a violation of veterans’ preference rights , an appellant must (1) show that she exhausted her remedy with the Department of Labor (DOL) ; and (2) make nonfrivolous allega tions that (i) she is a preference eligible within the meaning of VEOA, (ii) the action at issue took place on or after the October 30, 1998 enactment date of VEOA, and (iii) the agency violated her rights under a statute or regulation relating to veterans ’ preference.2 Lazaro v. Department of Veterans Affairs , 666 F.3d 1316 , 1319 (Fed. Cir. 2012) ; see 5 U.S.C. § 3330a (a)(1)(A). 2 An appellant also may establish Board jurisdiction over a “right to compete” VEOA appeal brought under 5 U.S.C. § 3330a (a)(1)(B); in orde r to establish jurisdiction, she must (1) show that she exhausted her remedy with DOL; and (2) make nonfrivolous allegations that (i) she is a preference eligible or veteran within the meaning of 5 U.S.C. § 3304 (f)(1), (ii) the action at issue took place on or after the enactment date of the Veterans’ Benefits Improvement Act of 2004, and (iii) the agency, in violation of 5 U.S.C. § 3304 (f)(1), denied her the opportunity to compete under merit promotion procedures for a vacant position for which the agency accepted applications from individuals outside its own workforce. Becker v. Department of Veterans Affairs , 115 M.S. P.R. 409 , ¶ 5 (2010). The appellant has not alleged such a claim in her appeal. 4 ¶6 It is undisputed, and the record reflects, that the appellant showed that she exhausted her remedy with DOL . IAF, Tab 8 at 6. It is also undisputed that the appellant made nonfrivolous allegations that her nonselection for the vacancy at issue took place after October 30, 1998 , and that the agency failed to consider her a preference eligible as defined by 5 U.S.C. § 2108 (3)(E) . IAF, Tab 10 at 34. We find , however, that the administrative judge properly concluded that the appellant did not make a nonfrivolous allegation that she was a preference eligible within the meaning of 5 U.S.C. § 2108 (3)(E). ¶7 To establish Board jurisdiction over her VEOA claim, the appellant need not prove that she is a preference eligible but must make an assertion that, if proven, could establish that she is a preference eligible. 5 C.F.R. § 1201.4 (s); see Badana v. Department of the Air Force , 104 M.S.P.R. 182 , ¶ 10 (2006). However, the appellant must make more than conclusory allegations to establish jurisdiction over her appeal. See Marcino v. U.S. Postal Service , 344 F.3d 1199 , 1204 (Fed. Cir. 2003) (recognizing that mere conclusory allegations, unsupported by affidavits or other evidence, do not constitute nonfrivolous allegations); Briscoe v. Department of Veterans Affairs , 55 F.3d 1571 , 1573 (Fed. Cir. 1995) (explaining that “[a]lthough an appellant need not prove her entire case before she is entitled to a hearing, the [B]oard may request sufficient evidence to determine if, in the first instance, there is any support for what otherwise might be bald allegations”) . ¶8 On review, the appellant argues that she submitted sufficient evidence of her spouse’s service -connect ed disability and that 5 U.S.C. § 2108 (3)(E) does not require that an agency , such as the Department of Veterans Affairs or a military department, make a det ermination regarding a service -connected disability in order for the appellant to esta blish the presence of a service -connected disability . PFR File, Tab 1 at 2 -4. Un der 5 U.S.C. § 2108 (3)(E), a preference eligible is “t he wife or husband of a service -connected disabled veteran if the veteran has been unable to qualify for any appointment in the civil service or in the government of 5 the District of Columbia [.]” A disabled veteran is an individual “who has served on active duty in the armed forces, . . . has been separated therefrom under honorable conditions, and has established the present existence of a service -connected disability or is receiving compensation, disability retirement benefits, or pension because of a public statute administered by the Department of Veterans Affairs or a military department[.]” 5 U.S.C. § 2108 (2). The statute and its implementing regulations are silent as to what is required to establish a service -connected disa bility if the veteran is not receiving one of the specified types of compensation. 5 U.S.C. § 2108 ; 5 C.F.R. p art 211. ¶9 Regardless, the appellant’s argument fails because she has not produced any evidence to establish that her spouse presently has a service -connected disability or is receiving the aforementioned compensation. The appellant provided evidence that her spouse served on active duty in the military and was discharged under honor able conditions on August 31, 1990 . IAF, Tab 1 at 43 -44. She also provided documentation showing that her spouse was diagnosed with a medical condition in May 2016 . IAF, Tab 6 at 16 -18. She has not, however, offered any evidence, beyond her bare assertions, that her spouse’s medical condition is connected to his military service. I AF, Tabs 1, 6, 8. The appellant asserts that, under 38 C.F.R. § 3.309 , which pertains to the Department of Veterans Affairs’ evaluating a service -connected disability, her spouse suffers from a medical condition for which a service connection is pre sumed. PFR File, Tab 1 at 2 -3. However, under 38 C.F.R. § 3.307 (a)(3), her spouse’s particular condition must have manifested itself “to a degree of 10 percent or more” within 1 year from the date of separation from service. The appellant has not set forth any facts that could show that such a manifestation occurred within 1 year of her spouse’s separation from service. Accordingly, she has not asserted facts that could show that her spouse suffers from a service -connected disability. ¶10 We also agree with the administrative judge’s finding that the appellant did not provide any evidence that her spouse was unable to qualify for an 6 appointment in the Federal civil service or in the G overnment of the District of Columbia (D.C.) . ID at 4. Although 5 U.S.C. § 2108 (3)(E) is silent as to the requirements to prove an inability to qualify for a Federal civil service or D .C. Government appoin tment, the Office of Personnel Management has promulgated guida nce that provides that a disabled veteran is presumed to be disqualified for a Federal position because of a service -connected disability when the veteran is unemployed and (1) “is rated by [the] appropriate military or Department of Veterans Affairs authorities to be 100 percent disabled and/or unemployable ”; (2) “has retired, been separated, or resigned from a civil service position on the basis of a disability that is service -connected in ori gin”; or (3) “ has attempted to obtain a civil service position or other position along the lines of his or her usual occupation and has failed to qualify because of a service -connected disability.”3 U.S. Office of Personnel Management , Vet Guide, https://www.opm.gov/policy - data-oversight/veterans -services/v et-guide -for-hr-professionals (last visited July 7, 2023 ). This guidance provides that veterans’ preference may be allowed in other circumstances but anything less “ warrants a more careful analy sis.” Id. ¶11 Here, the appellant’s spouse appeared to be employed by the City of New York when she applied for the Paralegal Specialist position . IAF, Tab 6 at 65-66. The appellant submitted evidence that her spouse had been repeatedly terminated from, a nd rehired to, positions within the City of New York, but this evidence alone does not suggest that the appellant was unable to qualify for a Federal civil service or D.C. G overnment position. IAF, Tab 1 at 48 -50. The appellant offered no evidence that h er spouse was completely disabled or was unable to qualify for or maintain employment in the Federal civil service or D.C. 3 While not entitled to the deference accorded to regulations, the Board has found the Vet Guide to be entitled to some weight when it does not conflict with statute. See, e.g., Vassallo v. Department of Defense , 122 M.S.P.R. 156 , ¶ 4, aff’d , 797 F.3d 1327 (Fed. Cir. 2015). 7 Government .4 Accordingly, we agree with the administrative judge’s finding that the appellant failed to make a nonfrivolous allegation that she was a preference eligible and affirm the dismissal of the appeal for lack of jurisdiction. See Lewis v. Merit Systems Protection Board, 62 F. App’x 94 5, 949 n.2 (Fed. Cir. 2003)5 (nonprecedential) (observing that the appellant’s evidence that her spouse was partially disabled was insufficient, on its own, to demonstrate that he was unable to qualify for an appointment in the civil service or D.C. Govern ment); cf. Redus v. U.S. Postal Service , 88 M.S.P.R. 193 , ¶¶ 11-12 (finding the appellant was entitled to preference -eligible status when she presented evidence that, due to a service -connected 100% disability rating for mental incompetence, her spouse would not have qualified for any position in the civil service or in D.C. Government), aff’d , 25 F. App’x 904 (Fed. Cir. 2001). ¶12 The appe llant does not challenge the administrative judge’s refusal to address her claims of prohibited personnel practice s, harmful procedural error , and violations of common law contract principles, and we discern no reason to disturb these findings. ID at 4 n. 2; see Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (explaining that prohibited per sonnel practices under 5 U.S.C. § 2302 (b) are no t an independent source of Board jurisdiction) , aff’d , 681 F.2d 867 (D.C. Cir. 1982) ; see also Ward v. Office of Personnel Management , 103 M.S.P. R. 24 , ¶ 5 (2006) (finding that the Board properly concluded that it lacked jurisdiction over contract claims with the United States) , 4 In fact, on the Standard Form 15 the appellant submitted in support of her entitlement to veterans’ preference with the application for the Paralegal Specialist position, when asked whether her spouse had resigned from, been disqualified for, or separat ed from a position in the Federal civil service or D.C. G overnment along the lines of his usual occupation because of service -connected disability , the appellant responded in the negative. IAF, Tab 6 at 65-66. 5 The Board may follow a nonprecedential de cision of the U.S. Court of Appeals for the Federal Circuit when, as here, it finds its reasoning persuasive. Morris v. Department of the Navy , 123 M.S.P.R. 662 , ¶ 13 n.9 (2016). 8 aff’d , 217 F. App’x 937 (Fed. Cir. 2007) . The initial decision therefore is affirmed. NOTICE OF APPEAL RIG HTS6 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that f orum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 9 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposi tion of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action in volves a claim of discrimination based on 10 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other secur ity. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial deliver y or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protectio n Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 11 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice descri bed in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 7 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 12 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SHARP_KAUFMAN_VICTORIA_M_NY_3330_17_0118_I_1_FINAL_ORDER_2047847.pdf	2023-07-10	null	NY-3330	NP
2,927	https://www.mspb.gov/decisions/nonprecedential/ST_AMOUR_DAVID_A_DE_0752_17_0339_I_1_FINAL_ORDER_2047879.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DAVID A. ST. AMOUR, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER DE-0752 -17-0339 -I-1 DATE: July 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 David A. St. Amour , Aurora, Colorado, pro se. Brian J. Odom , Esquire, Denver, Colorado, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his removal appeal for failure to prosecute . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statut e 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 dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 discret ion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for gran ting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to clarify the nature of the appellant’s noncompliance with the administrative judge’s orders , we AFFIRM the initial decision. BACKGROUND ¶2 Effective Jun e 20, 2017, the agency removed the appellant from his Maintenance Mechanic position based on a single charge of failure to be regular in attendance/absence without leave. Initial Appeal File (IAF), Tab 6 at 13 -15, 18-22. The appellant filed the instant appeal of the agency’s removal action, in which he raised affirmative defenses of disability discrimination and harassment based on perceived sexual orientation . IAF, Tab 1 at 3, 5. He also requested a hearing and elected to e -file. Id. at 2. The Board received no further submissions from the appellant before the initial decision’s issuance. ¶3 The administrative judge issued a June 29, 2017 order setting forth the appellant’s burden on his affirmative defenses and directing him to identify the factual base s for , and to submit evidence in support of , those defenses; however, it did not advise him that he could be sanctioned for failing to respond. IAF, Tab 3. On July 10, 2017, the administrative judge issued a hearing order, in which he schedul ed a telephonic status conference for July 20, 2017. IAF, Tab 5. The hearing order did not notify the parties that they could be sanctioned for failing to appear at the status conference . Id. at 1. 3 ¶4 The appellant did not respond to the affirmative defenses order. The administrative judge issued a show cause order on July 19, 2017, directing the appellant to file argument and evidence showing good cause why his appeal should not be dismissed for his failure to comply with the affirmative defenses order and notifying him that his appeal could be dismissed if he repeatedly failed to comply with Board orders. IAF, Tab 10 at 1. The following day, on July 20, 2017, the appellant failed to appear for the scheduled telephonic status conference. IAF, Tab 11 at 1. The administrative judge issued an order, observing the appellant’s failure to appear at the status conference and warning him that his appeal would be dismissed for failure to prosecute if he did not respond to the show cause order by the July 21, 2017 deadline . Id. ¶5 On July 21, 2017 , the appellant contacted the Denver Field Office and received guidance on using the Board’s e -Appeal Online system to electronically file case -related documents. IAF, Tab 12 at 1-2. That same day , the administrative judge issued a confirming order, w arning the appellant for a third time that his appeal would be dismissed for failure to prosecute if he did not respond to the show cause order that day. Id. at 1. As with all of the prior orders, the Board ’s e-Appeal Online system notified the appellant of its issuance via email because he registered as an e -filer. IAF, Tab 1 at 2, Tab 2 at 17, Tab 3 at 11, Tab 5 at 5, Tab 10 at 3, Tab 11 at 2, Tab 12 at 3. The appellant did not file a response. ¶6 After waiting a week without a response from the appellant, the administrative judge issued an initial decision on July 28, 2017, dismissing the appeal for failure to prosecute. IAF, Tab 13, Initial Decision (ID) at 1 -3, 2 n.1. He determined that dismissal with prejudice was a justi fied sanction because the appellant failed to respond to the affirmative defenses order, the order to show cause , and the confirming order and did not appear at the status conference . ID at 2. 4 ¶7 The appellant has filed a petition for review , which does not contain any argument or evidence . Petition for Review (PFR) File, Tab 1, Tab 2 at 1. The agency has not filed a response to the petition for review. DISCUSSION OF ARGUME NTS ON REVIEW ¶8 The appel lant’s single filing on review fails to meet the criteria for a petition for review. PFR File, Tab 1 . A petition for review must state a party’s objections to the initial decision, including h is legal and factual arguments, and must be supported by specific references to the record and any applicable laws or regulations. Stoglin v. Department of the Air Force , 123 M.S.P.R. 163 , ¶ 6 (2015), aff’d per curiam , 640 F. App’ x 864 (Fed. Cir. 2016); 5 C.F.R. § 1201.114 (b). Moreover, the record does not support a finding that the administrative judge abused his discretion in dismissing the appeal for failure to prosecute, given the appellant’s repeated failures to comply with Board orders and to take any measures to pursue his appeal. ¶9 An administrative judge has the authority to order compliance with his orders and to enforce compliance through sanctions. 5 C.F.R. § 1201.43 . The administrative judge may impose such sanctions upon the parties as necessary to serve the ends of justice. Id. The sanction of dismissal with prejudice may be imposed if a party fails to prosecute or defend an appeal. Turner v. U.S. Postal Service , 123 M.S.P.R. 640, ¶ 14 (2016) , aff’d per curiam , 681 F. App’x 934 (Fed. Cir. 2017) . Imposing such a severe sanction shoul d be used only when a party has failed to exercise basic due diligence in complying with Board orders or a party has exhibited negligence or bad faith in his efforts to comply. Id. Appellants are expected to comply with all orders issued by the Board’s administrative judges. Heckman v. Department of the Interior , 106 M.S.P.R. 210, ¶ 16 (2007 ). When an appellant completely fails to respond to any of the Board’s orders, as here, the Board has found the sanction of dismissal appropriate. Turner , 123 M.S.P.R. 640, ¶¶ 15-16. Absent a showing of an abuse of discretion, 5 the Board will not reverse an administrative judge’s determination regarding sanctions. Id., ¶ 14. ¶10 The administrative judge based his dismissal for failure to prosecute on the appellant’s failure to comply with the affirmative defense s order, the status conference order, the show cause order, and the confirming order. ID at 2. We modify the initial decision to find that the appellant ’s failure to participate in this appeal between the time he filed the initial appeal and his petition for review likewise is a valid basis for finding that he failed to prosecute his appeal . The appellant has not sought to explain this failure on review. PFR File, Tab 1. ¶11 Although the appellant initially may not have been on notice of the consequences for failing to respo nd, the show cause order, status conference summary, and confirming order all clearly and expressly apprised the appellant that his appeal would be dismissed for failure to prosecute if did not respond.2 IAF, Tabs 10 -12. Thus, the appellant was on notice of those possible sanctions before he failed to appear for the status conference and to re spond to the show cause order. ¶12 There is no indication that the appellant failed to receive any of the administrative judge’s orders. The Board served him a copy o f each order by electronic mail, in accordance with his status as an e -filer. IAF, Tab 1 at 2, Tab 2 at 17, Tab 3 at 11, Tab 5 at 5, Tab 10 at 3, Tab 11 at 2, Tab 12 at 3; see 5 C.F.R. § 1201.14 (j)(1) (explaining that email messages will be sent to e -filers , notifying them when the Board issues orders and containing links to the e-Appeal Online Repository where the documents can be viewed and downloaded , and that paper 2 While, under 5 C.F.R. § 1201.43 , the administrative judge must provide appropriate prior warn ing and allow a response to the actual or proposed sanction when feasible, that Board regulation does not mandate that an appellant be on notice of t he possibility of sanction before failing to comply with an order for that noncompliance to serve as a reason justifying the sanction. The administrative judge warned the appellant no less than three times about possible sanctions and allowed him an opportunity to respond before dismissing the appeal with prejudice as a sanction for his noncompliance. IAF, Tabs 10 -12. 6 copies of these doc uments ordinarily will not be served on e -filers). The appellant is deemed to have received the administrative judge’s orders on the date of electronic submission.3 See Mills v. U.S. Postal Service , 119 M.S.P.R. 482 , ¶ 6 (2013) ; 5 C.F.R. § 1201.14 (m)(2) . ¶13 We recognize that the administrative judge had the discretion to issue lesser sanctions such as deny ing the appellant’s affirmative defenses or , alternatively, drawing an inference in favor of the agency as to any information that the appellant failed to provide. Simon v. Department of Commerce , 111 M.S.P.R. 381, ¶¶ 14 -15 (2009); see 5 C.F.R. § 1201.43 (a)(1) -(2) (authorizing the administrative judge to infer in favor of the requesting party regarding the information sought or to prohibit the noncomplying party from introducing evidence on the information sought). However, w e find that the administrative judge did not abuse his discre tion by declining to impose those lesser sanction s. This is not a circumstance where by the appellant merely has failed to respond to a single order or has provided an incomplete response. See Turner , 123 M.S.P.R. 640, ¶ 14 (explaining that a dismissal for failure to prosecute an appeal should not be imposed when a pro se appellant has given incomplete responses to the Board’s orders but he has not exhibited bad faith or evidenced any intent to abandon his appeal , and appears confused by the Board’s procedures ); Heckman , 106 M.S.P.R. 210 , ¶ 16 (explaining that failure to obey a single order does not 3 The administrative judge afforded the appellant only 3 days to respond to the show cause order, which may not have been a sufficient amount of time to respond if the administrative judge had not also waited an additional week before issuing the initial decision . See Holland v. Department of Labor , 108 M.S.P.R. 599 , ¶ 11 (2008) (affording the appellant 2 days to respond to the show ca use order did not allow sufficient time for the mailed order to be received by her and for her mailed response to be received); 5 C.F.R. § 1201.14 (f) (providing that registere d e-filers may elect to file pleadings by mail or other non -electronic means) . If an appellant is not given enough time to respond, a subsequent untimely response does not necessarily evidence a lack of diligence or negligence . Holland , 108 M.S.P.R. 599 , ¶ 11. Here, however, the appellant failed to submit any response below or on review explaining his failure to comply with the adm inistrative judge’s orders or providing the other requested information. 7 ordinarily justify dismissal for failure to prosecute). Rather, the appellant failed to participate in the proc eedings below and does not explain on review why he did not respond to the administrative judge’s orders or participate in the status conference. See Leseman v. Department of the Army , 122 M.S.P.R. 139 , ¶ 7 (2015) ( finding that, by not taking any steps to pursue her appeal until she filed her petition for review, despite being warned that her failure to participate may result in dism issing her appeal with prejudice, the appellant failed to exercise due diligence in pursuing her appeal ). The appellant has failed to exhibit basic due diligence in complying with the administrative judge’s orders or in pursuing his appeal . ¶14 Accordingly, w e find that the administrative judge did not abuse his discretion in imposing the severe sanction of dismissal with prejudice , and we affirm the initial decision , except as expressly modified. NOTICE OF APPEAL RIG HTS4 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 bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filin g time limits and requirements. Failure to file 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to yo ur particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action in volves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other secur ity. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 10 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial deliver y or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protectio n Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice descri bed in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower 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. 11 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ST_AMOUR_DAVID_A_DE_0752_17_0339_I_1_FINAL_ORDER_2047879.pdf	2023-07-10	null	DE-0752	NP
2,928	https://www.mspb.gov/decisions/nonprecedential/HOIN_MATTHEW_J_PH_0752_18_0019_I_1_FINAL_ORDER_2048197.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MATTHEW J. HOIN, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER PH-0752 -18-0019 -I-1 DATE: July 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Randolph Elliott , Camp Hill, Pennsylvania, for the appellant. John D. Fritz , Esquire and Karen L. Saxton , Esquire, New Cumberland, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINA L ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his indefinite suspension appeal for lack of jurisdiction on the basis that he had made a prior binding election under 5 U.S.C. § 7121 (e)(1) to proceed through the negotiated grievance process. On petition for review, the appellant 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 argues, as he did below, that his grievance and his Board appeal pertain to two diffe rent matters. He also makes arguments related to the timeliness of his appea l—an i ssue that the administrative judge expressly declined to reach. Generally, we grant petitions such as this one only in the following circumstances: the initial decision co ntains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the p etitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the fil ings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final deci sion. 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 summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is mos t 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 informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono re presentation 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 revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives t his decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 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 revi ew to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhanc ement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in s ection 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain 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 judici al review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono repr esentation for Merit Systems Protection Board appellants before the 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 Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HOIN_MATTHEW_J_PH_0752_18_0019_I_1_FINAL_ORDER_2048197.pdf	2023-07-10	null	PH-0752	NP
2,929	https://www.mspb.gov/decisions/nonprecedential/STANISLAW_REBECCA_CB_7121_23_0001_V_1_ORDER_2047529.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD REBECCA STANISLAW, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER CB-7121 -23-0001 -V-1 DATE: July 7, 2023 THIS ORDER IS NONPRECEDENTIAL1 Nicole M. Ferree , Esquire, Las Vegas, Nevada, for the appellant. Arnulfo Urias , Esquire, Los Angeles, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member ORDER ¶1 The appellant has filed a request for review of an arbitration decision that sustained the agency’s decision to remove h er for unacceptable performance under chapter 43. For the reasons set forth below, we GRANT the request 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 review under 5 U.S.C. § 7121 (d), VACATE the arbitration decision, and FORWARD the matter to the W estern Regional Office for further adjudication . ANALYSIS The Board has jurisdiction to consider the appellant’s request for review . ¶2 The Board has juris diction to review an arbitrator’ s decision under 5 U.S.C. § 7121 (d) when the following conditions are met: (1) the subject matter of the grievance is one over which the Board has jurisdictio n; (2) the appellant either (i) raised a claim of discrim ination under 5 U.S.C. § 2302 (b)(1) with the arbitrator in connection wit h the underlying action or (ii) raises a claim of discrimination in connection with the und erlying 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). ¶3 Here , we find that all of these conditions have been met. First, it is undisputed that the appellant’ s grievance concern ed her removal for unacceptable performance under 5 U.S.C. chapter 43, a subject matter over which the Board has jurisdiction. See 5 U.S.C. § 4303 (e); Galloway v. Social Security Administration , 111 M.S.P.R. 78 , ¶ 11 (2009) . Second, the appellant alleged before the arbitrator that the agency’ s action was precipitated by disability discrimination . E.g., Reques t for Review (RFR) File, Tab 1 at 86. Finally, the arbitrat or has issued a final decision. Id. at 51-66. Consequently, we find that the Board has jurisdiction to review the arbitration decision. The standard of review for an arbitration decision is limited . ¶4 The standard of the Board’s review of an arbitrator’ s award is limited; indeed, 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 3 aside such an award only when the arbitrator has erred as a matter of la w in interpreting a civil se rvice law, rule, or regulation. Id. Even if the Boa rd disagrees with an arbitrator’ s decision, absent legal error, the Board cannot substitute its conclusio ns for those of the arbitrator. Id. Thus, the arbitrator’ s factual d eterminations are entitled to deference unless the arbitrator erred in his legal analysis, for example, by misallocating the burdens of proof or employing the wrong analytical framework. Id. Nevertheless, the Board can defer to the arbitrator’ s findings and conclusions only if the arbitrator makes specific find ings on the issues in question. Id. Further, the Board may make its own findings when the arbitrator failed to cite any legal standard or employ any analytical framework for his evaluation of the evidence. Id. We vacate the arbitrator’s conclusion that the agency proved its charge of unacceptable performance and forward the matter to the regional office . ¶5 To defend an action under chapter 43, the agency must prove the following by substantial evide nce:2 (1) the Office of Personnel Management approved its performance appraisal system and any significant changes thereto; (2) the agency communicated to the appellant the performance standards and critical elements of her position; (3) the appellant’s p erformance stand ards are valid under 5 U.S.C. § 4302 (c)(1); (4) the appellant’s performance during the appraisal period was unacceptable in one or more critical elements; (5) the agency warned the appellant of the inadequacies in her performance during the appraisal period and gave her an adequate opportunity to demonstrate acceptable performance; and (6) after an adequate improvement period, the appellant’s performance remained unacceptable in at l east one critical element. Lee v. Department of Veterans Affairs , 2022 MSPB 11 , ¶ 15. 2 Substantial evidence is the 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 rea sonable persons might disagree. 5 C.F.R. § 1201.4 (p). 4 ¶6 Here, the arbitration decision did not set forth the above analytical framework for chapter 43 performance -based actions ; indeed, it is unclear from the decision what legal standard the arbitrator employed in finding that the agency proved its charge of unacceptable performance . Additionally, it is difficult to distill from the decision the arbitrator’s specific findings on the issues in question , if any .3 Although the arbitrator ultimately stated that he “firmly believe [d] that the [a]gency met the substantial burden of proof of showing that the removal based on [the appellant’s] substan dard performance was reasonable,” RFR File, Tab 1 at 66 , this statement does not equate to a finding that the agency proved the six elements of a chapter 43 performance -based action by substantial evidence , see Hollingsworth v. Department of Commerce , 115 M.S.P.R. 636 , ¶¶ 7-8 (2011) ( explaining that an arbitrator’s decision is not en titled to deference when the arbitrator decides an issue without making specific findings on the issues in question , citing the correct legal standard, or employing the proper analytical framework ). Moreover, as discussed herein, we find that further adju dication is warranted regarding the appellant’s discrimination -based affirmative defenses . These claims, if proven, are relevant as to whether the agency proved its charge ; indeed, the appellant argued that the agency’s discriminatory actions deprived her of a meaningful opportunity to demonstrate successful performance. RFR File, Tab 1 at 73; see Viana v. Department of the Treasury , 114 M.S.P.R. 659 , ¶¶ 1, 8 (2010) (vacating an administrative judge’s finding that the agency proved its charge when the appeal was remanded for further adjudication of the appellant’s affirmative defense of discrimination). Accordingly, we vacate the ar bitrator’s conclusion that the agency proved its charge of unacceptable performance and forward th e matter to the regional office for adjudication. 3 It was often unclear whether the arb itrator intended to make findings of fact or merely summariz e the evidence in the record . E.g., RFR File, Tab 1 at 5 8. 5 We vacate the arbitrator’s conclusion that the appellant failed to prove her failure to accommodate disability discrimination claim . ¶7 An agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship on its business operations. Miller v. Department of the Army , 121 M.S.P.R. 189 , ¶ 13 (2014); 29 C.F.R. § 1630.9 (a). Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essent ial job functions. Miller , 121 M.S.P.R. 189 , ¶ 13. In order to establish disability discrimination based on a failure to acco mmodate , an employee must show the following : (1) she is an individual with a disability, as define d by 29 C.F.R. § 1630.2 (g); (2) she is a qualified individual with a disability, as def ined by 29 C.F.R. § 1630.2 (m); and (3) the agency failed to provide a reasonable accommodation. Id. ¶8 Here, although the arbitrator concluded that the appellant did not prove her failur e to accommodate disability discrimination claim , RFR File, Tab 1 at 65, it is unclear what analytical framework he employed in reaching this conclusion . To this end, although he summarized the appellant’s arguments regarding her medical condition , id. at 53, the arbitrator did not discernably issue a finding regarding whether she is a qualified individual with a disability under 29 C.F.R. § 1630.2 (m), or whether she is an individual with a disability under 29 C.F.R. § 1630.2 (g). Moreover, i n analyzing the appellant’s failure to accommodate claim, the arbitrator stated as follows: “The arbitrator clearly believes that t he [a]gency was doing everything within their control and ability to operate efficiently in granting the accommodations.” Id. at 65. This statement seemingly invokes the concept of undue hardship ; however, undue hardship exc uses an agency from providing an accommodation, and the arbitrator seemingly found 6 that the agency had granted the appellant’s accommodation requests .4 Id. at 65-66. Accordingly, because it is unclear what legal standard the arbitrator used , we vacate the arbitr ator’s findings and forward the appellant’s failure to accommodate disability discrimination claim to the regional office for adjudication. See B rookens v. Department of Labor , 120 M.S.P.R. 678 , ¶ 15 (2014) (forwarding the appellant’ s claims of discrimination to the regional office for further adjudication because the arbitrator did not set forth any analytical framework for his determinations ); see also Pace v. Department of the Treasury , 118 M.S.P.R. 542 , ¶ 9 (2012) ( declining to defer to the arbitrator’s deci sion regarding the appellant’s discrimination claims when the arbitrator failed to analyze the claims under any recognizable legal standard or framework) . The arbitration decision did not address the appellant’s claim that the agency engaged in equal employment opportunity (EEO) reprisal ; accordingly, we forward this claim for adjudication . ¶9 In her request for review, the appellant assert s that the arbitrator failed to consider her claim that the agency engaged in disability reprisal . RFR File, Tab 1 at 5-10. We interpret this assertion as an argument that the arbitrator failed to consider her claim of EEO reprisal .5 E.g., id. at 2, 92. Of 4 The arbitrator later stated as follows: In the arbitrator’ s opinion the [a]gency bent over backwards to accommodate [the appellant] and help her with her performance. It appeared that the [appellant] was unable to perform the essential functions of her job even though she was provi ded accommodations to do that. RFR File, Tab 1 at 66. Although this statement raises the specter of a dispositive finding that the appellant failed to show that she is a qualified individual with a disability, see Haas v. Department of Homeland Security , 2022 MSPB 36 , ¶ 28 , given the arbitrator’s failure to discernably identify the applicable legal framework or burden of proof for this claim and his statement regarding operat ional efficiency, we conclude that further adjudication is warr anted . 5 The appellant also argues that the arbitrator failed to consider her claims of “per se violations” of antidiscrimination law. RFR File, Tab 1 at 5. The appellant’s claims in 7 note, shortly before the issuance of the arbitration decision, the Board clarified that a “but -for” standard is applicable to retaliation claims under the Americans with Disabilit ies Act Amendments Act of 2008. Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 43 -47. Accordingly, we forward this claim to the regional office for adjudicat ion. We clarify that the appellant’s due process claim constitute s a claim of harmful procedural error and find that the appellant failed to prove this claim . ¶10 The appellant argued before the arbitrator that the agency had violated her due process rights . RFR File, Tab 1 at 83-85. Specifically , she contended that the agency violated a provision of the parties’ collective bargaining agreement (CBA) pertaining to the timeframe within which she could respond to the agency’s notice of proposed removal. Id. at 84 -85. In his decision, the arbitrator first summarized this purported due process claim, id. at 51 -52, and t hereafter stated that “there [did] not appear to be any type of violation when the [a]gency failed to extend the [response] time period” for the appellant, id. at 66. ¶11 We clarify that a llegations of agency error in applying CBA provisions in chapter 43 actions constitute claims of procedural error . See Slavich v. Social Security Administration , 102 M.S.P.R. 171 , ¶ 8 (2006) (indic ating that allegations of agency error in applying CBA provisions in chapter 43 actions are treated as claims of procedural error ); DeSousa v. Agency for International Development , 38 M.S.P.R. 522 , 526 (1988) (same). Pursuant to 5 U.S.C. § 7701 (c)(2)(A), the Board will not sustain an agency’ s decision if the appellant “shows harm ful error in the application of the agency’ s procedures in arriving at such decision.” A procedural error is harmful when the record shows tha t an error by the agency was likely to have caused the agency to reach a conclusion different from the one it would have reached in th e absence or cure of the error. Pumphrey v. Department of Defense , 122 M.S.P.R. 186 , ¶ 10 (2015); 5 C.F.R. § 1201.4 (r). this regard appear to be tethered to her claims of failure to accommo date di sability discrimination and EEO reprisal . 8 Here, because the arbitrator found that the agency had not , as alleged, violated the CBA , the appellant failed to identify any procedural error ; thus, she necessaril y failed to prove the affirmative defense of harmful procedural error. RFR File, Tab 1 at 66; see Sadiq , 119 M.S.P.R. 450 , ¶ 7 (expl aining that an arbitrator is uniquely qualified to interpret a CBA, which is the source of the arbitrator’s authority). ORDER ¶12 For the reasons set forth above, we forward this matter to the Western Regional Office for further adjudication. The administrative judge assigned to the matter shall conduct further proceedings as necessary, consistent with this Order. After the administrative judge issues the recommended decision, the case will be forwarded back to the Board. The parties may file exceptions to the administrative judge’s recommended decision with the Clerk of the Board within 20 days of the da te of the recommended decision. The parties may respond to any submission by the other party within 15 days of the date of such submission. The Board will subsequently issue a final decision on the merits of the appellant’s request for review . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	STANISLAW_REBECCA_CB_7121_23_0001_V_1_ORDER_2047529.pdf	2023-07-07	null	CB-7121	NP
2,930	https://www.mspb.gov/decisions/nonprecedential/BREWER_BRENDA_DC_0752_17_0093_I_1_FINAL_ORDER_2047535.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BRENDA BREWER, Appellant, v. DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER DC-0752 -17-0093 -I-1 DATE: July 7, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Brenda Brewer , Springfield, Virginia, pro se. Pegah Yazdy Gorman and Virginia Fritchey , 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 her removal. On petition for review, the appellant disputes many of the administrative judge’s findings , including his finding that the appellant did not establish her claim of disability discrimination. The appellant also argues that the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 administrative jud ge did not consider all of the evidence presented. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interp retation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved a n abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Fed eral Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to correct the administrative judge’s analysis of the appellant’s claim of discrimination based on race and age, we AFFIRM the initia l decision. ¶2 Although the appellant failed to raise this issue on review, in analyzing he r claim that the agency discriminated against her based on race and age, and in finding that she did not establish that claim, the administrative judge cited and applied the burden -shifting analysis set forth by the Supreme Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792 , 802 (1973). Initial Decisio n (ID) at 14-16. The administrative judge found that the appellant did not prove that the agency’s action “was the result of” discrimination based on race or age because she did not establish that similarly situated employees that did not share her protec ted characteristics were not disciplined or removed, nor did she prove that the agency’s explanation was a pretext for discrimination. ID at 16. ¶3 Since the initial decision was issued, the Board has clarified the standards for proving disparate treatment discrimination. Title VII of the Civil Rights Act of 1964, as amended, requires that actions “shall be made free from any 3 discrimination based on race, color, religio n, sex, or national origin.” 42 U.S.C. § 2000e -16(a); see Desjardin v. U.S. Postal Service , 2023 MSPB 6 , ¶ 31; Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶ 20. Similarly, in Babb v. Wilkie , 140 S. Ct. 1168 (2020), the U.S. Supreme Court interpreted the identical statutory language in 29 U.S. C. § 633a , which prohibits Federal sector age discrimination. Pridgen , 2022 MSPB 31 , ¶ 20. Considering this sweeping statutor y language, the Court held that a plaintiff may prove a claim of age discrimination by showing that such discrimination “play[ed] any part in the way a decision [was] made.” Pridgen , 2022 MSPB 31 , ¶ 21 (citing Babb , 140 S. Ct. at 1173 -74). A finding that prohibited discrimination played “any part” in the contested action may be the same as a finding of “motivating factor.” Prid gen, 2022 MSPB 31 , ¶ 21. To obt ain the full measure of relief, including status quo ante relief, compensatory damages, or other forms of relief related to the end result of an employment decision, an appellant must show that discrimination was a “but -for” cause of the action. Desjardin , 2023 MSPB 6 , ¶ 31; Pridgen , 2022 MSPB 31 , ¶¶ 20 -22. ¶4 The McDonnell Douglas burden -shifting framework , on which the administrative judge relied in part , is one of several ways to prove disparate treatment discrimination under Title VII or the Age Discrimination in Employment Act . Pridgen , 2022 MSPB 31 , ¶¶ 20, 24. Here, in support of her discrimination claims , the appellant pointed to other employees who were either not removed for serious misconduct or were otherwise treated more favorably than her. Initial Appeal File (IAF), Tab 22 at 6. We have considered the appellant’s arguments, however, and we agree w ith the administrative judge that these employees were not valid comparators.2 The appellant presented no other 2 The appellant cited a Caucasian male who allegedly committed very serious misconduct that was not at all similar to the misconduct underlying the appellant’s removal. IAF, Tab 22 at 6. The appellant does not alleg e that the younger employees she identifies as comparators committed any misconduct; rather, she contends that they were allowed to telework and were generally treated more respectfully. Id. 4 evidence in support of either her race or her age discrimination claims . Accordingly , her claim s fail, and any error the administrative judge may have committed in adjudicating her discrimination claims did not prejudice her substantive rights . 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 Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial re view in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at t he fo llowing address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts. gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorse s the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, 6 and your representative receives this decision before you do, t hen you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at th eir respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal O perations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Emplo yment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 7 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i ), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302( b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 w ithin 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must subm it your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison 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. 4 The original statutory provision that provided for judicial review of ce rtain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 11 5-195, 132 Stat. 1510. 8 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal C ircuit. 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 acc essed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BREWER_BRENDA_DC_0752_17_0093_I_1_FINAL_ORDER_2047535.pdf	2023-07-07	null	DC-0752	NP
2,931	https://www.mspb.gov/decisions/nonprecedential/DIAZ_DIEGO_CH_0752_20_0060_I_1_FINAL_ORDER_2047567.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DIEGO DIAZ, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER CH-0752 -20-0060 -I-1 DATE: July 7, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Donna Drake -Davis , Chicago, Illinois, for the appellant. Hannah C. Brothers , Chicago, Illinois, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which mitigated the appellant’s removal for unacceptable conduct to a demotion to the next lower -graded nonsupervisory agency position . On petition for review, the agency argues that the administrative judge erred in finding that it failed to prove 1 A nonprecedential order is one that the Board has determined does not add significant ly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 its third specification and in mitigat ing the penalty .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 re sulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.11 5 (5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petiti on 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 ¶2 We ORDER the agency to mitigate the appellant’s removal to the next lower -graded nonsupervisory position with the agency and to restore the appellant effective October 15, 2019. See Kerr v. National Endowment for the Arts , 2 The agency established, among other things, that the appellant took an item of minimal value from the undeliverable bulk business mail for his personal use. Initial Appeal File, Initial Decision, Tab 55 at 3 -5. Although a serious offense, t he Board has found removal unreasonable in other Postal Service cases involving the taking of undeliverable mail or property of de mini mis value. See Jefferson v. U.S. Postal Service , 73 M.S.P.R. 376 , 382 (1997). In light of the appellant’s supervisory status, his demotion to the next lower -graded nonsupervisory position is an appropriate penalty. Jackson v. U.S. Postal Service , 48 M.S.P.R. 472 , 476 -77 (1991) (finding that demotion to a nonsupervisory position, rather than removal, was the appropriate penalty for a Postal Service supervisor ’s falsification of time records, in light of her 12 years of service with the agency, excellent performance evaluations, and good potential for rehabilitation ). 3 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶3 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal Service regulations, as appropriate, 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 effo rts 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 benefi ts, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶4 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶5 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that the agency d id 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). ¶6 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Ser vice (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 payment s and adjustments resulting from the 4 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 APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be ent itled 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 DECIS ION. 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 of fer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rul e regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file withi n the applicable time limit may result in the dismissal of your case by your chosen forum. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whe ther a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition f or review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 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 t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 6 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess 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 ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 whis tleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB deci sions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 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. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20 Pay%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 noti fied 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 ea rnings 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 l ater 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 fr om 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 CEN TER CHECKLIST FOR BA CK 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 Seve rance 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 a pplicable). 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.	DIAZ_DIEGO_CH_0752_20_0060_I_1_FINAL_ORDER_2047567.pdf	2023-07-07	null	CH-0752	NP
2,932	https://www.mspb.gov/decisions/nonprecedential/DIONNE_CHRISTOPHER_AT_0752_20_0151_I_1_FINAL_ORDER_2047110.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHRISTOPHER DIONNE, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER S AT-0752 -20-0151 -I-1 AT-0752 -20-0359 -I-1 DATE: JULY 6, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Christopher Dionne , Millington, Tennessee, pro se. Carol M. Lynch , Pensacola, Florida, for the agency. Marcus S. Lawrence, Jr. , NAS Pensacola, Florida, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed petition s for review of two initial decision s, one of which was dismissed for lack of jurisdiction, and the other of which was dismissed as withdrawn based on the appellant’s voluntary request 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 withdrawal . Dionne v. Department of the Navy , MSPB Docket No AT-0752 -20- 0359 -I-1, Petition for Review (0359 PFR) File, Tab 1; Dionne v. Department of the Navy , MSPB Docket No. AT-0752 -20-0151 -I-1, Petition for Review (0151 PFR) File, Tab 1. For the reasons set forth below, we JOIN these appeals2 and DISMISS the appellant’s petition s for review as untimely filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g). BACKGROUND ¶2 The appellant is employed as a GS -12 Operations Res earch Analyst with the agency. Dionne v. Department of the Navy , MSPB Docket No. AT-0752 -20- 0151 -I-1, Initial Appeal File (0151 IAF), Tab 5 at 42. By a letter dated October 8, 2019, the agency proposed to suspend the appellant’s access to classified information and national security sensitive information systems, pending final adjudication of the eligibility determination by the Department of Defense Consolidated Adjudication Facility (DoDCAF) . Id. at 39-40. In a letter dated October 9 , 2019, the agency also proposed to indefinitely suspend the appellant based on the suspension of his access to classified information and national security sensitive information systems . Id. at 36-37. The notice informed the appel lant that, if the decision to suspend him was reached, the suspension would remain in effect until a final eligibility determination by DoDCAF. Id. Effective that same day, the agency placed the appellant on p aid administrative leave for 30 days. Id. at 33-34. ¶3 The appellant provided written and oral responses to the interim suspension notice. Id. at 24, 28 -31. After considering the appellant’s reply, by a letter dated 2 Joinder of two or more appeals filed by the same appellant may be appropriate when joinder would expedite processing of the appeals and would not adversely affect the interests of the parties. Boechler v. Department of the Interior , 109 M.S.P.R. 542 , ¶ 14 (2008), aff’d , 328 F. App’x 660 (Fed. Cir. 2009); 5 C.F.R. § 1201.36 (a)(2), (b). We find that these appeals meet the regulatory criteria, and therefore, we join them. 3 October 31, 2019, the deciding official sustained the proposal, imposing the indefini te suspension, effective immediately. Id. at 21 -22. The appellant timely filed a Board appeal challenging his indefinite suspension and requested a hearing. 0151 IAF, Tab 1. The appellant subsequently requested to withdraw his appeal, stating that he i nstead intended to challenge the suspension of access determination with DoDCAF or the Personnel Security Appeals Board . 0151 IAF, Tab 16. Based on the appellant’s request, on March 9, 2020, the administrative judge issued an initial decision dismissing the appeal as withdrawn, concluding that t he appellant’s request was “clear, unequivocal, and decisive.” 0151 IAF, Tab 17, Initial Decision (0151 ID) at 1 -2. ¶4 On March 16, 2020, the appellant filed a separate Board appeal purportedly challenging his “suspension without cause,” and identified May 9, 2019 as the effective date of the agency action. Dionne v. Department of the Navy , MSPB Docket No. AT -0752 -20-0359 -I-1, Initial Appeal File (0359 IAF), Tab 1. In response, the agency moved to dismiss the appeal for lack of jurisdiction, arguing that the appellant had not suffered an appealable adverse action, or in the alternative, that the appeal was untimely filed without good cause for the delay. 0359 IAF, Tab 5 at 6 -8. Specifically, the agency noted that the appellant was placed on paid administrative leave for 10 day s from May 13, 2019 through May 22, 2019, which the appellant incorrectly identified as a “suspe nsion,” and that the appellant did not file a Board appeal challe nging the action until nearly 1 year later. Id. at 6. Because the appellant had not assert ed that he was subject to an appealable adverse action, the agency argued that the Board should dis miss the appeal for lack of jurisdiction. Id. at 7. The appellant did not file a response to the agency’s motion. In an initial decision dated May 15, 2020, the administrative judge dismissed the appeal, concluding that the appellant had not suffered an appealable adverse action when he was placed on administrative leave for 10 days, with pay, and so the Board lacked jurisdiction over the appeal. 0359 IAF, Tab 6, Initial Decision ( 0359 ID) at 1 -3. 4 ¶5 On October 1, 2020, the appellant filed a pleading with the regional office titled “ Reopening an Appeal Dismissed Without Prejudice,” challenging the merits of the agency’s decision suspending his access to classified information and arguing that the agency violated his right to due process . 0151 PFR File, Tab 1; 0359 PFR File, Tab 1 . Because it was unclear whether the appellant intended his pleading as a petition for review of the 0359 appeal or the 0151 appeal, or both , the Office of the Clerk of the Board sought clarification of the intent of the appellant’ s filing. 0151 PFR File, Tab 2 ; 0359 PFR File, Tab 2 . The appellant filed a response clarifying that he intended his pleading as a petition for review of both appeal s. 0151 PFR File, Tab 3 ; 0359 PFR File, Tab 3 . Consequently, the Clerk’s Office issued an order acknowledging the appellant’s October 1, 2020 filing as a petition for review of both initial decision s. 0151 PFR File, Tab 5 ; 0359 PFR File, Tab 4 . Because the pleading was received after the April 13, 2020 and June 19, 2020 initial decision finality date s, respectively, the Clerk’s Office informed the appellant that his petition s for review were untimely and that he must submit a “Motion to Accept Filing as Timely or to Waive Time Limit” either by an affidavit or a statement signed under pena lty of perjury. 0151 PFR File, T ab 5 at 2 -3; 0359 PFR File, Tab 4 at 2-3. Blank sample motion s were attached to both acknowledgment letter s. 0151 PFR File, Tab 5 at 8 -9; 0359 PFR File, Tab 4 at 8-9. The acknowledgment letter s further stated that the ap pellant’s motion s must be submitted on or before November 24, 2020 . 0151 PFR File, Tab 5 at 3; 0359 PFR File, Tab 4 at 2. The acknowledgment letter s informed the appellant that he must show good cause for the Board to waive his untimeliness, and instruct ed him on how to do so. 0151 PFR File, Tab 5 at 2 -3, 8; 0359 PFR File, Tab 4 at 2, 8 . The appellant did not file motion s to accept his untimely petition s for review or to waive the time limit. 5 DISCUSSION OF ARGUME NTS ON REVIEW ¶6 A petition for review generally must be filed within 35 days after the date of the issuance of the initial decision or, if the party filing the petition shows that the initial decision was received more than 5 days after it was issued, within 30 days after the party received the initial decision. Palermo v. Department of the Navy , 120 M.S.P.R. 694 , ¶ 3 (2014); 5 C.F.R. § 1201.114 (e). Here, t he initial decision s stated that they would become final on April 13, 2020 and June 19, 2020 , respectively, unless petition s for review were filed by those respective dates. See 0151 ID at 2; 0359 ID at 3. The appellant makes no allegation that he did not receive either of the initial decision s or that he received them more than 5 days after they were issued . The appellant’s petition s for review were sent to the Atlanta Regional Office on October 1, 2020, and were referred to the Office of the Clerk of the Board on October 21, 2020. See 0151 PFR File, Tab 5 at 1; 0359 PFR File, Tab 4 at 1. Therefore, the appellant’s petition s for review were filed ov er 5 months late and over 3 months late, respectively. ¶7 The Board will waive the filing deadline for a petition for review only upon a showing of good cause for the untimely filing. Palermo , 120 M.S.P.R. 694 , ¶ 4; 5 C.F.R. §§ 1201.113 (d), 1201.114(f). The party who submits an untimely petition for review has the bu rden of establishing good cause for the untimely filing by showing that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Palermo , 120 M.S.P.R. 694 , ¶ 4. To determine whether a party has shown good cause, the Board will consider the length of the delay, the reasonableness of his excuse and the party ’s 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. 6 ¶8 We conclude that the appellant has failed to show good cause for a waiver of the filing deadline. Even considering the appellant’s pro se status, the appellant’s minimum 3 -month delay is not minimal. See Wright v. Department of the Treasury , 113 M.S.P.R. 124 , ¶ 8 (2010) (concluding that a n 11 -day delay is not minimal); Allen v. Off ice of Personnel Management , 97 M.S.P.R. 665 , ¶¶ 8, 10 (2004) (declining to excuse a pro se appellant ’s 14-day, unexplained delay in filing a petition for review); Crozier v. Department of Transportation , 93 M.S.P.R. 438 , ¶ 7 (2003) (noting that a 13 -day de lay in f iling is not minimal). Additionally, th e appellant has not presented evidence of due diligence or the existence of circumstances beyond his control that affected his ability to file his petition s. Further , despite being afforded the opportunity to do so, the appellant has not offered any explanation for his delay in filing. Accordingly, we dismiss the petition s for review as untimely filed. This is the final decision of the Merit Systems Protection Board regarding the timeliness of the se petition s for r eview. The initial decision s remain the final decision s of the Board regarding the withdrawal of the appeal challenging his indefinite suspension (0151 appeal) and the appellant’s challenge to his placement on paid administrative leave (0359 appeal) .3 3 In his petition for review t he appellant also appears to argue that n ew and materi al evidence exists that warrant reopening his appeal . See 0151 PFR File, Tab 1 at 4 -6; 0359 PFR File, Tab 1 at 4 -6. Although the appellant has not provided copies of the documents he refers to with his petition for review, none of the docume nts he references are new or material and so we have not considered them. See Okello v. Office of Personnel Management , 112 M.S.P.R. 563, ¶ 10 (2009) (noting that under 5 C.F.R. § 1201.115 (d), the Board will not consider evidence submitted for the first time with a petition for review absent a showing th at it is both new and material). The document identified as “CNRC Suspension of Access to Classified Material dated 8 Oct 2019,” appears to refer to material already included in the record below, and thus is not new. 0151 IAF, Tab 5 at 39 -40; see Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (explaining that evidence that is already a part of the record is not new). The document titled “ A Report to the President and the Congress of the United States by the U.S. Merit Systems Protection Board May 2015 ,” is dated to well before 7 NOT ICE 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 summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. the close of record in these cases, and therefore is not “new.” See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) (explaining that, under 5 C.F.R. § 1201.115 , the Board generall y will not consider evidence submitted for the first time on review absent a showing that it was unavailable before the record was closed despite the party’s due diligence). Finally, regarding the document titled “ JG FOIA Email dated 25 Sep 2020 ,” which a ppears to be a 286 -page document the appellant may have received as a result of a Freedom of Information Act (FOIA) request, the appellant has not explained how the document is material , and therefore it does not warrant a different outcome in these appeal s. 0151 PFR File, Tab 1 at 4 -5; 0359 PFR File, Tab 1 at 4 -5; see Okello , 112 M.S.P.R. 563 , ¶ 10. Specifically, the appellant has no t explained how the document has any bearing on the voluntariness of his withdrawal in the 0151 appeal, or on the dispositive jurisdictional issue in the 0359 appeal. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono re presentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 9 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action inv olves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other securi ty. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEO C via commercial delivery or by a method requiring a signature, it must be addressed to: 10 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protecte d activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited pe rsonnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or an y 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 clai ms by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certa in whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DIONNE_CHRISTOPHER_AT_0752_20_0151_I_1_FINAL_ORDER_2047110.pdf	2023-07-06	null	S	NP
2,933	https://www.mspb.gov/decisions/nonprecedential/DIONNE_CHRISTOPHER_AT_1221_22_0036_W_1_FINAL_ORDER_2047121.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHRISTOPHER DIONNE, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER AT-1221 -22-0036 -W-1 DATE: July 6, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Christopher Dionne , Millington, Tennessee, pro se. Carol M. Lynch and Marcus S. Lawrence, Jr. , Pensacola, 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 dismissed his individual right of action appeal for lack of jurisdiction. On petition for review, the appellant reargues that the agency violated his right to due process in connection with its decision to suspend his access to classified 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 information, but he does not address the dispositive jurisdictional issue in this appeal . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, d espite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully conside ring the filings in this appeal, we c onclude that the petitioner has not established any basis under section 1201.115 for granting 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 HTS2 You may obtain review of this final decisi on. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the foll owing summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. 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 mos t appropriate in any matter. 3 filing time limits and requirements. Failure to file within the applic able time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particu lar forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 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 t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the 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 unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, cost s, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after yo ur representative 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. C ourt 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, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower 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 court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DIONNE_CHRISTOPHER_AT_1221_22_0036_W_1_FINAL_ORDER_2047121.pdf	2023-07-06	null	AT-1221	NP
2,934	https://www.mspb.gov/decisions/nonprecedential/MIN_DEBRA_SF_1221_17_0119_W_1_FINAL_ORDER_2047298.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DEBRA MIN, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency. DOCKET NUMBER SF-1221 -17-0119 -W-1 DATE: July 6, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Debra Min , Vancouver, Washington, pro se. Gerald J. Hill , Esquire, and Jeffrey R. McClain , Esquire , Seattle, Washington, 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 he r 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 init ial 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 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 initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during eit her the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that , despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulati ons, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully cons idering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to clarify that, to es tablish that she made a protected disclosure, the appellant need not prove that the matter disclosed actually established one of the types of wrongdoing set fort h in 5 U.S.C. § 2302 (b)(8)(A) , we AF FIRM the initial decision. BACKGROUND ¶2 The appellant serves as a Claims Represen tative in the agency’s Longview, Washington , field office . Initial Appeal File (IAF), Tab 5 at 84 , Tab 55 at 4 . On October 30, 2015, she filed a complaint with the Office of Special Counsel (OSC) alleging that, in retaliation for disclosing to her supervisors, the agency’s Office of Inspector General (OIG), and two members of Congres s that her supervisor authorized the issuance of a child’s Social Security card without suff icient documentation , agency officials took actions against her that , among other things, affected her performance evaluations and job duties and created a hostile work environment . IAF, Tab 16 at 4 -25. She also supplemented her OSC complaint with additional claims of retaliatory personnel actions regarding , among other things, her performance evaluations and changes in job duties on January 19, 3 2016, May 19, 2016, and August 29, 201 6.2 Id. at 165-83, 327 -31, 516, 529-36. By letter dated October 31, 2016, OSC informed the appellant that it was closing its file regarding her complaint. IA F, Tab 1 at 26-27. ¶3 On November 24, 2016, the appellant filed an IRA appeal with the Board and requested a hearing. IAF, Tab 1. In prehe aring orders issued on December 20, 2016 , and February 21, 2017, the administrative judge found that the appellant had shown that she had exhausted her administrative remedies before OSC and that she made nonfrivolous allegations that she engaged in protected activity under 5 U.S.C. § 2302 (b)(9)(C) by disclosing information to the agency’s OIG and that the alleged protected activity was a contributing factor in her 2015 performance rating and changes in her job duties and responsibili ties. IAF, Tab 7 at 2 -3, Tab 65 at 2. The administrative judge also found that the appellant had not shown that she exh austed her administrative remedies concerning her claim that her statements to the OIG were a contributing factor in her 2016 performa nce rating. IAF, Tab 65 at 2. ¶4 Following a hearing, the administrative judge issued an initial decision denying the appellant’s request for corrective action. IAF, Tab 76, Initial Decision (ID). In denying the request, the administrative judge first found that the appellant asserted during the proceedings that the agency had purged her informal personnel file in violation of the collective bargaining agreement (CBA) covering the appellant , but she did not r aise this allegation before OSC, and thus she had not exhausted administrative remedies regarding this claim. ID at 2 n.2. The administrative judge then found that the appellant had filed a grievance regarding her 2015 performance rating prior to raising with OSC that her alleged disclosures and activity were a contributing factor in the rating , and had made a valid election to pursue her disagreement regarding her 2015 rating through the 2 On November 23, 2015, the appellant made a disclosure of information to OSC’s disclosure unit, again setting forth her claim of an improperly issued Social Security card. IAF, Tab 16 at 27 -60. 4 negotiated grievance procedure ; thus, the Board lacked jurisdiction over the claim. ID at 5 -7. Next, although the administrative judge found that the appellant had exhausted administrative remedies regarding her 2015 and 2016 mid-year performance reviews, she concluded that the appellant did not make nonfrivolous allegations that the reviews were covered personnel actions because they did not contain ratings or any threat to lower the appellant’s rating , and she reiterated her finding that the appellant failed to exhaust adm inistrative remedies regarding her 2016 performance rating . ID at 7 n.6 , 10. She found that the appellant showed that she exhausted administrative remedies before OSC as to the remaining alleged personnel actions: a requirement that she vet monthly meet ing topics , the temporary reassignment of her workload in iAppeal, a 1-hour reduction in weekly adjudication duties, a meeting with her second -level supervisor regarding her equal employment opportunity complaint, and an instruction to report to duty 30 minutes later than her previous report time. ID at 10. ¶5 The administrative judge further determined that the appe llant did not show by preponderant evidence that she had a reasonable belief that her supervisor’s authorization of the issuance of a child’s Soc ial Security card was a violation of a law, rule , or regulation, gross mismanagement, or an abuse of authority ; thus, none of her disclosures were protected under 5 U.S.C. § 2302 (b)(8) . ID at 10-15. However, she found that the appellant engaged in activity protected under 5 U.S.C. § 2302 (b)(9)(C) when she disclosed this information to the agency’s OIG. ID at 15. According to the administ rative judge, all but one supervisor implicated in the appellant’s allegations had knowledge of her statements to the OIG within close proximity to the alleged personnel actions ; thus, the appellant established that her protected activity was a contributing factor in the alleged 5 personnel actions .3 ID at 16 -18. Finally, the administrative judge considered all of the alleged personnel actions for which the appellant had exhausted her administrative remed ies, including her 2015 and 2016 mid-year performance reviews and her encounter with her former first -level supervisor regarding the OIG complaint . The administrative judge concluded , however, that the appellant had not proven that any of the se actions, alone or collectively, constituted a significant change in duties, responsibilities, or working conditions or a hos tile work environment that could be considered a significant change in working conditions . ID at 18 -30. Thus, she found t hat the appellant did not show that she was subjected to a personnel action and was not entitled to corrective action. ID at 30. ¶6 The appellant has timely filed a petition for review, to which the agency has filed an opposition. Petition for Review (PFR) File, Tabs 1, 3. The appellant has filed a reply to the agency’s opposition. PFR File, Tab 4. On review , the appellant argues that her appea l should be remanded to OSC, the administrative judge applied an incorrect standard in finding that she did not s how that she was subjected to a significant change in working conditions , the agency did not show by clear and convincing evidence that it would have taken a personnel action in the absence of whistleblowing, and the administrative judge did not consider a ll 3 The administrative judge did not explicitly find that the alleged personnel actions took place within a period of time such that a reasonable person could conclude that the protected activity was a contributing factor in the actions. See 5 U.S.C. § 1221 (e)(1)( B). However, the administrative judge found that all but one of the appellant’s supervisors were aware of the appellant’s OIG complaint at the time of their involvement in the alleged personnel actions, and each of the actions complained of occurred less than 2 years after the OIG complaint ; thus, each supervisor would have been aware of the disclosure within a period of time such that a reasonable person could conclude that the protect ed activity was a contributing factor in the alleged personnel actions. ID at 3, 10, 17 -18; see Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 16 (2012) (noting that the Board has found that a personnel action taken within 1 to 2 years of a disclosure meets the knowledge/timing test). 6 of the evidence. PFR File, Tab 1. As set forth below, we find that the appellant’s arguments are without merit. DISCUSSION OF ARGUME NTS ON REVIEW The Board lacks the authority to take any action regarding the appellant’s claim that the agency purged her informal personnel file. ¶7 On review, the appellant does not challenge the administrative judge’s dismissal of certain claims for failure to exhaust administrative remedies or the election of the negotiated grievance procedure, as discussed above. ID a t 2-7. She also does not dispute the administrative judge’s finding that she did not make a protected disclosure under 5 U.S.C. § 2302 (b)(8) or that her 2015 and 2016 mid-year performance reviews , her interactions with supervisors, and an instruction to report to duty 30 minutes later did not constitute a significant change in working conditions . ID at 7 -15, 23-29. These well -reasoned findings are supported by the record , and we discern no reaso n to disturb them . See Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016) (finding no reason to disturb the administrativ e judge’s findings whe n she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on the issue of credibility); Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987) (same). ¶8 Although the appellant does not challenge the administrative judge’s finding that she did not exhaust administrative remedies as to her claim that the agency purged her informal personnel file in violation of the CBA , she requests that the claim be remanded to OSC for an investigation and that the case be remanded as a whole to OSC because the agency took a “materially adverse action” against her . PFR File, Tab 1 at 9 -10, 13; ID at 2 n.2 . The Board does not have jurisdiction over a whistleblower reprisal claim involving an action that is not otherwise appealable to the Board for which the appellant has not exhausted administrative remedies before OSC . T hus, we lack the authority to take any 7 further action regarding the appellant’s claim about her informal personnel file .4 5 U.S.C. §§ 1214 (a)(3) , 1221 (a); see Miller v. Fed eral Deposit Insurance Corporation , 122 M.S.P.R. 3 , ¶¶ 6-10 (2014) ( finding that the Board lacked jurisdiction to review claims in an IRA appeal that the appellant did not raise before OSC ), aff’d , 626 F. App’x 261 (Fed. Cir. 2015). Should the appellant wish to furt her pursue this claim, she may seek redress from OSC pursuant to the procedures set forth at 5 C.F.R. part 1800. The administrative judge correctly found that the appellant failed to establish that she was subjected to a significant change in duties, responsibilities, or working conditions . ¶9 The appellant contests the administrative judge’s findings that the vetting of monthly meeting topics, the temporary reassignment of her workload in iAppeal, and the 1-hour reduction in weekly adjudication duties were not covered personnel actions. PFR File, Tab 1 at 10 -14; ID at 18 -30. She contends that the administrative judge shou ld have applied the standard to evaluate whether she suffered an actionable personnel action set forth in Burlington Northern & Santa Fe Railroad Company v . White , 548 U.S. 53 (2006) , asserting that this standard places a lower burden on her to prove that an actionable personnel action occurred . PFR File, Tab 1 at 4 -14. In White , the Supreme Court held that, to prevail on a retaliation claim, a privately employed plaintiff need not show an “adverse employment action ”; rather, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ” meaning that “[the action] might well hav e dissuaded a reasonable worker from making or supporting a charge of discrimination. ” White , 548 U.S. at 60, 6 7-68 (citing Rochon v. Gonzales , 438 F.3d 1211 , 1219 (D.C. Cir. 2006)) . However, White 4 The reason that an employee must exhaust her remedies before OSC before appealing to the Board is to give OSC the opportunity to take corrective action before involving the Board in the case. Ward v. Merit Systems Protection Board , 981 F.2d 521 , 526 (Fed. Cir. 1992). For the exhaustion remedy to serve its intended purpose, the employee must inform OSC of the precise ground of her charge of whistleblowing. Id. 8 addressed the extent to which activity constitutes action able retaliation under the anti-retaliation provision of Title VII of the Civil Right s Act of 1964 and is thus inapplicable to the appellant’s IRA appeal. See generally id. at 59 -70. ¶10 The appellant’s IRA appeal is brought pursuant to the Whistleblower Protection Enhancement Act of 2012 (WPEA) , which provides its own statutory definition of an actionab le personnel action, codified at 5 U.S.C. § 2302 (a)(2)(A) . Section 2302(a) (2)(A) defines a “personnel action” as any 1 of 11 enumerated actions and “any other significant change in duties, responsibilities, or working conditions [.]”5 The appellant does not appear to dispute that the challenged actions do not fall under an enumerated action and that the administrative judge appropriately considered whether the actions constituted a significant change in duties, responsibilities, o r working conditions. ID at 18-20. We held in Skarada v. Department of Veterans Affairs , 2022 MSPB 17 , ¶ 23, that “ only agency actions that, individually or collectively, have practical and significant effects on the overall nature and quality of an employee’s working conditions, duties, or responsibilities, and are likely to have a chilling effect on whistleblowing or otherwise undermine the merit system will be found to constitute a covered personnel action under section 2302(a)(2)(A)(xii). ” Although the administrative judge did not have the benefit of our decision in Skarada when she issued the initial decision, she evaluated whether the appellant showed such a significant change in a manner consistent with the standard set forth in Skarada and concluded that none of the challenged actions rose to the level of a significant change in duties, responsibilities, or work ing conditions . ID at 19-23; see, e.g. , White v. Social Security Administration , 76 M.S.P.R. 447 , 461-62 (199 7) (finding that the reassignment of cases within an office was not a 5 During the pendency of this appeal, the National Defense Authorizatio n Act for Fiscal Year 2018 (NDAA), Pub. L. No. 115 -91, 131 Stat. 1283, was signed into law on December 12, 2017. Section 1097 of the NDAA amended various provisions of Title 5 of the U nited States Code. Our decision would be the same under both pre - and post-NDAA law. 9 significant change in duties, responsibilities, or working conditions) , aff’d , 152 F.3d 948 (Fed. Cir. 1998) (Table) .6 ¶11 We similarly find that the administrative judge properly evaluate d whether the challenged actions collectively constituted a hostile work environment but concluded that they did not constitute severe, pervasive, or humiliating conduct sufficient to establish a significant change in wor king conditions. ID at 23 -30; see, e.g., Skarada , 2022 MSPB 17, ¶¶ 26-29 (determin ing that the appellant’s claims t hat certain agency officials told him to stop attending certain meetings, excluded him from the hiring process for two new hires, avoided him, failed to provide him with a dequate guidance, excluded him from meetings, would not support his request for a review of his position, yelled at him, and c onvened investigations against him were not sufficiently severe or pervasive to significantly impact the appellant’s working conditions). On review, the appellant’s arguments to the contrary merely reiterate her arguments below and do not establish a basi s for review. PFR File, Tab 1 at 10 -14. The appellant’s additional arguments regarding the administrative judge’s findings are unsupported by the record . ¶12 The appellant’s argument that the agency did not meet its burden by clear and convincing evidence does not serve as a basis for review . PFR File, Tab 1 at 14-16, Tab 4 at 7-34. Because the appellant did not meet her burden to show by preponderant evidence that her statements to the agency’s OIG were a contributing factor in the agency’s decision to t ake a personnel action, the burden did not shift to the agency to show by clear and convincing evidence that it would have taken the same personnel action in the absence of the protected activity. See 6 The WPEA, which became effective on December 27, 2012, does not affect the relevant holding in the cited authority, nor does it affect the relevant holdings in the other authorities cited herein that were issued prior to the effective date of the WPEA. See Pub. L. No. 112 -199, 126 Stat. 1465 (2012). 10 5 U.S.C. § 1221 (e)(1) -(2); Corthell v. Department of Homeland Security , 123 M.S.P.R. 417 , ¶ 8 (2016). ¶13 The appellant’s reply to the agency’s opposition to her petition for review contains arguments that appear to be outside the scope of the petition for review. PFR File, Tab 4 . Although we need not consider arguments outside the scope of the petition, we have nevertheless reviewed the appellant’s additional arguments and find them without merit. See 5 C.F.R. § 1201.114 (a)(4) (limiting a reply to a response to a petition for review to th e factual and legal issues raised by another party in the response to the petition for review). Contrary to the appellant’s assertions, there is no evidence that the administrative judge did not consider all of the record evidence a s a whole. PFR File, T ab 4 at 6. The administrative judge made detailed credibility and factual findings supported by the record, and we discern no reason to disturb these findings. See Clay , 123 M.S.P.R. 245 , ¶ 6. The initial decision is modified to clarify that, to establish that she m ade a protected disclosure, the appellant need not prove that the matter disclosed actually established one of the types of wro ngdoing set forth in 5 U. S.C. § 2302 (b)(8)(A). ¶14 In finding that the appellant did not show that her disclosu res were protected under 5 U.S.C. § 2302 (b)(8), the administrative judge found that “the appellant has not proven by preponderant evidence that there was a violation of a rule.” ID at 11. We modify the initial decision to clarify that, to establish that she made a protected disclosure, the appellant need not prove that the matter disclosed actually established one of the types of w rongdoing set forth at 5 U.S.C. § 2302 (b)(8)(A); 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 section 2302(b)(8). Scoggins v. Department o f the Army , 123 M.S.P.R. 592 , ¶ 11 (2016). Despite the administrative judge ’s finding, she went on to analyze the remainin g evidence regarding whether the disclosure was protected and ultimately concluded that a reasonable person would not have concluded that the matter disclosed evidenced a violation of a law, rule, or 11 regulation, gross mismanagement, or an abuse of authority . ID at 11 -15. Accordingly, we find that the administrative judge applied the correct standard to find that the appellant’s disclosure was not protected, and the administrative judge’s initial finding is of no consequence because it did not adve rsely affect the appellant’s substantive rights. Cf. Karapinka v. Department of Energy , 6 M.S.P.R. 124 , 127 (1981) (holding that the administr ative judge’s procedural error is of no legal consequence unless it is shown to have adversely affected a party’s substantive rights). Accordingly, we affirm the initial decision as modified herein. NOTICE OF APPEAL RIG HTS7 The initial decision, as supp lemented 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 Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described below do not represent a stateme nt of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirement s. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 12 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain 13 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representati ve receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, nati onal origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information f or U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternat ively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 14 If you submit a request for review to the EEO C via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited p ersonnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or a ny 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: 8 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 15 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for inf ormation regarding pro bono representation for Merit Systems Protection Board appellants before the 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/Cour tWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MIN_DEBRA_SF_1221_17_0119_W_1_FINAL_ORDER_2047298.pdf	2023-07-06	null	SF-1221	NP
2,935	https://www.mspb.gov/decisions/nonprecedential/COY_WILLIAM_DC_0752_18_0528_I_1_REMAND_ORDER_2046620.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD WILLIAM COY, Appellant, v. DEPARTMENT OF THE TR EASURY, Agency. DOCKET NUMBER DC-0752 -18-0528 -I-1 DATE: July 5, 2023 THIS ORDER IS NONPRECEDENTIAL1 Alexis N. Tsotakos , Esquire, and Christopher H. Bonk , Esquire, Silver Spring, Maryland, for the appellant. Christopher Sterbenz , Gabriel A. Hindin , and Michael Morelli , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member REMAND ORDER ¶1 The agency has filed a petition for review and the appellant has filed a cross petition for review of the initial decision, which reversed the appellant’s removal on due process grounds and concluded that the appellant did not prove any of his reprisal claims. For the reasons d iscussed below, we DENY the petition for 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 review and the cross petition for review. We AFFIRM the administrative judge’s decision to reverse the removal on due process grounds. We further MODIFY the administrative judge’s analysis of the appellant’s claim of reprisal for whistleblowing disclosures and protected activity ( filing Office of Special Counsel (OSC) complaints), still finding that the appellant did not prove these claims. We VACATE the administrative judge’s analysis of the appellant’s claims of reprisal for prior equal employment opportunity (EEO) activity and for filing an appeal pursuant to the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), and we REMAND these claims to the Washington Regional Office for notice and further adjudication in accordance with this Remand Order. We also DENY the appellant’s petition to enforce the administrative judge’s interim relief order . BACKGROUND ¶2 The following facts, as recited in the initial decision, are generally undisputed. I nitial Appeal File (IAF), Tab 38, Initial Decision (ID). The appellant filed a USERRA appeal in which he asserted that his starting salary as a Supervisory Human Capital Specialist (Director of Compensation and Benefits), should have been increased becaus e of his status as a military veteran. ID at 3; Coy v. Department of the Treasury , MSPB Docket No. DC -4324 -17-0272 -I-1. During the appellant’s sworn deposition in the USERRA appeal, the agency learned that he used his status as an agency employee to acce ss agency electronic systems to misappropriate confidential employee data, which he emailed to his home computer and used to prosecute lawsuits against the agency. ID at 3 -4. The administrative judge dismissed the USERRA appeal as withdrawn in May 2017. ID at 4. However, the agency determined that the appellant’s admission of such misconduct had formed the factual basis for a removal action, and it removed him on a single charge of misuse of Government property supported by three specifications. ID at 3-4. 3 ¶3 The appellant filed a Board appeal and raised claims of a due process violation, harmful procedural error, and reprisal for prior EEO activity, for his OSC complaints, and for his prior USERRA appeal. ID at 4; IAF, Tab 1. He subsequently withdrew hi s hearing request. ID at 1 -2; IAF, Tabs 29 -30. In the initial decision, the administrative judge reversed the removal action on due process grounds. ID at 4 -13. In particular, the administrative judge noted that the deciding official, in her deposition , identified numerous facts regarding the appellant’s alleged performance deficiencies that she considered in the penalty analysis that were not specifically articulated in the proposal notice or decision letter. ID at 9 -13. The administrative judge dete rmined in the alternative that the appellant proved his claim of harmful procedural error. ID at 13. The administrative judge further found that the appellant did not prove any of his reprisal claims. ID at 13 -18. The administrative judge ordered the a gency to cancel the removal action and retroactively restore the appellant, effective April 13, 2018, and pay him the appropriate amount of back pay with interest and other adjustments. ID at 19. The administrative judge also ordered the agency to provid e interim relief if either party filed a petition for review. ID at 20. ¶4 The agency has filed a petition for review, and the appellant has filed a response. Petition for Review (PFR) File, Tabs 1, 3. The appellant has filed a cross petition for review, to which the agency has filed a response. PFR File, Tabs 3, 7. The appellant has also filed a petition to enforce the interim relief order , the agency has responded to this petition, and the appellant has replied. PFR File, Tabs 5 -6, 8-10. ¶5 While this mat ter was pending on review, the agency removed the appellant based on the same misuse of Government property charge and specifications, effective December 28, 2019, and a different administrative judge sustained this second removal action. Coy v. Departmen t of the Treasury , MSPB Docket No. DC-0752 -20-0325 -I-1, Initial Decision (Apr. 15, 2021). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) found that the second removal 4 action was permissible while the first removal action was still pen ding before the Board because the second removal action cured the procedural deficiency of the first removal action and did not “evade ” the first decision, and it upheld the removal. Coy v. Department of the Treasury , 43 F.4th 1334 , 1337 -40 (Fed. Cir. 2022) . DISCUSSION OF ARGUME NTS ON REVIEW We affirm the administrative judge’s decision to reverse the removal on due process grounds. ¶6 In the initial decision, the administrative judge made the following findings: (1) the deciding official’s consideration of the appellant’s subordinates’ concerns about his management style and/or competence and the deciding official’s own concerns about his performance deficiencies were not raised in either the proposal or decision letters; (2) the appellant never had a chance to respond to or address these considerations before the removal was effected; (3) these considerations were not cumulative; and ( 4) they were the type of information likely to result in pressure on the deciding official to rule in a particular manner. ID at 9 -12. The administrative judge therefore concluded that the deciding official’s consideration of such information without not ice to the appellant violated his due process rights. ID at 4 -13. She also determined in the alternative that the deciding official’s consideration of such evidence amounted to harmful procedural error. ID at 13. ¶7 In its petition for review, the agency a rgues that the administrative judge erred when she determined that the deciding official violated the appellant’s due process rights when she considered his job performance in setting the penalty, the appellant knew that the deciding official would conside r his job performance because the proposing official told him so, and the administrative judge incorrectly applied the rule on ex parte communications. PFR File, Tab 1 at 6 -7. The agency also contends that the administrative judge’s harmful procedural er ror analysis was erroneous. Id. at 7-8. 5 ¶8 The U.S. Court of Appeals for the Federal Circuit has held that , “[t]he introduction of new and mater ial information by means of ex parte communications to the deciding official undermines the public employee ’s constitutional due process guarantee of notice (both of the charges and of the employer ’s evidence) and the opportunity to respond.” Stone v. Fed eral Deposit Insurance Corporation , 179 F.3d 1368 , 1377 (Fed. Cir. 1999). Not every ex parte communication is a procedural defect so substantial and so likely to cause prejudice that it undermines the due process guarantee and entitles the claimant to an entirely new administrative proceeding; rather, only ex parte communications that introduce new and material information to the deciding official will violate the due process guarantee of notice. Id. The Board will consider the following factors, among others, to determine whether an ex parte contact is constitutionally impermissi ble: (1) whether the ex parte communication merely introduces “cumulative” information or new information; (2) whether the employee knew of the error and had a chance to respond to it; and (3) whether the ex parte communications were of the type likely to result in undue pressure upon the deciding official to rule in a particular manner. Id. at 1377. Ultimately, the inquiry of the Board is whether the ex parte communication is so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances. Id. The Board has held that this analysis applies to penalty considerations. Wilson v. Department of Homeland Security , 120 M.S.P.R. 686, ¶ 9 (2014), aff’d , 595 F. App’x 995 (Fed. Cir. 2015). For the following reasons, we agree with the administrative judge that the agency violated the appellant’s due process rights. ¶9 In the proposal notice, the proposing official advised the appellant that she considered his job performance, among other things. IAF, Tab 5 at 83. In the decision letter, the deciding official noted that she considered the appellant’s “lack of any prior disciplinary record,” “[his] record of job performance,” and “[his] 15 years of Federal service.” Id. at 15. However, during her deposition, 6 the deciding official testified that she considered that his “direct reports were all very, very upset,” “had significant concerns about [him],” and “many felt very demoralized by him, not supported, no engagement on actually understanding the programs and . . . what our processes are.” IAF, Tab 32 at 311 -12 (deposition testimony of the deciding off icial). ¶10 We have considered the agency’s contention that the appellant had notice that his job performance would be considered. We agree that the appellant did have general notice that his job performance would be considered, and he stated in his response to the notice of proposed removal that he had a “sterling” 15 -year record of Federal service and noted that his supervisors across “multiple agencies . . . unanimously elected to rate him at the highest performance level available.” IAF, Tab 5 at 50. How ever, there is little, if any, evidence that the appellant had any meaningful knowledge of any of the subordinates’ stated concerns or that the agency would rely on such concerns in its decision. Notably, it is undisputed that the appellant did not have a n annual performance appraisal due to his short tenure at the agency. IAF, Tab 32 at 315 (deposition testimony of the deciding official), 492 (sworn declaration of the appellant). Moreover, in his declaration, made under penalty of perjury, the appellant stated that his midyear evaluation was “meets performance standards,”2 at no point did the proposing official (who was also his first -line supervisor) or the deciding official ever tell him that they had any concerns about his performance, and the first t ime he became aware of performance concerns was after he reviewed the deciding official’s deposition. IAF, Tab 32 at 492. ¶11 We have considered the proposing official’s deposition testimony that she held “at least four” meetings between February 2017 and Apr il or May 2017 with the appellant and the two subordinate managers who complained about him, and 2 According to the appellant, the two rating options for the midyear review were something to the effect of “meets performance standards” and “does not meet performance standards at this time.” IAF, Tab 32 at 492. 7 she suggested that the appellant retain an executive coach. IAF, Tab 32 at 134-35, 139 -40 (deposition testimony of the proposing official). However, the agen cy presented no documentary evidence or written communications that would advise the appellant that the agency had any significant concerns about his performance.3 Therefore, we are not persuaded that the appellant had sufficient notice that any such conc erns would be considered in this removal action. Indeed, the Board has found that a deciding official’s similar consideration of performance -related information not specified in the decision letter constituted a due process violation. See, e.g. , Howard v . Department of the Air Force , 118 M.S.P.R. 106, ¶ 6 (2012) (finding that a deciding official’s consideration of ex parte informatio n regarding the appellant’s audit production numbers being lower than the agency’s individual production goal for a single year and his general poor performance was not cumulative because it concerned specific information of alleged performance deficiencie s); Silberman v. Department of Labor , 116 M.S.P.R. 501, ¶ 12 (2011) (explaining that ex parte communications are plainly material when the deciding official has admitted that the information influenced her penalty determination). ¶12 Accordingly, we affirm the administrative judge’s decision to reverse the remov al on due process grounds. We need not reach the issue of whether the 3 In its petition for review, the agency includes an unsigned, undated document, entitled “Notes on [the appellant],” which appears to have been written by the proposing official and which appears to document a summary of meetings that purp ortedly occurred between managers, the proposing official, and the appellant about his competency and management style. PFR File, Tab 1 at 32 -33. The agency indicates that it provided such evidence to the appellant during discovery. Id. at 21 -22 & n.65. Under 5 C.F.R. § 1201.115 , the Board will not generally 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). We are not persuaded that this unsigned and undated document, in the absence of any corresponding contextual information, warra nts any further consideration. 8 agency also committed harmful procedural error.4 Alford v. Department of Defense , 118 M.S.P.R. 556, ¶ 7 & n.4 (2012); Silberman , 116 M.S.P.R. 501, ¶ 4 n.3. We modify the initial decision to supplement the administrative judge’s analysis of the appellant’s claim of reprisal for filing OSC comp laints, but a different outcome is not warranted. ¶13 In his cross petition for review, the appellant reiterates that his December 2016 OSC complaint was protected by 5 U.S.C. § 2302 (b)(8)(B) and his N ovember 30, 2017 OSC Complaint, which he filed after the agency proposed his removal, was protected by section 2302(b)(9)(C). PFR Fil e, Tab 3 at 23; IAF, Tab 32 at 531 -42. The administrative judge gave the appellant proper notice of his burden to prove t his claim of reprisal, and the record is fully developed on these issues; therefore, it is appropriate to address these arguments on review. Based on our review of the record, as explained below, we affirm the administrative judge’s finding that the Decem ber 2016 OSC complaint was not protected by 5 U.S.C. § 2302 (b)(8)(B).5 We modify the initial decision to alternatively consider whether the appellant’s December 2016 OSC complaint is protected by 5 U.S.C. § 2302 (b)(9)(C)6 and to evaluate his claim regarding his 4 In addition, because we are reversing the agency’s action on due process grounds we need not determine whether the agency proved the charge or make other merits findings, as those issues are not material. 5 Section 2302 (b)(8)(B) makes it a prohibited personnel practice “to t ake or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures , of information which the employee or applican t reasonably believes evidences . . . any violation (other than a violation of this section) of any law , rule, or regulation, or . . . gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety .” 6 Section 2302 (b)(9)(C) makes it a prohibited personnel practice “to take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of . . . cooperating with or disclosing information to the Inspector General (or any other component responsible for internal investigation or 9 November 30, 2017 OSC complaint. For the following reasons, a different outcome is not warranted. December 2016 OSC Complaint ¶14 The administrative judge determined that the appellant’s December 2016 OSC complaint, in which he alleged that the agency violated the Equal Pay Act and its own internal processes in its salary -setting decisions, did not constitute a whistleblowing disclosure under 5 U.S.C. § 2302 (b)(8)(B). ID at 14 -18; IAF, Tab 32 at 531 -42. She noted that the agency’s failure to set his pay consistent with salary -setting policy decisions is not a claim that the agen cy violated a law, rule, or regulation. ID at 18. Additionally, she concluded that he did not reasonably believe that the agency violated the Equal Pay Act because his salary was set at a rate less than his peers in the private sector and that his allega tions were conclusory. Id. She found in the alternative that, even if the appellant satisfied his prima facie burden, the agency proved by clear and convincing evidence that it would have removed him in the absence of any protected disclosure. ID at 14 -18. ¶15 We discern no error with the administrative judge’s evaluation of the December 2016 OSC complaint pursuant to 5 U.S.C. § 2302 (b)(8)(B). Notably, the Equal Pay Act, found at 29 U.S.C. § 206(d)(1), expressly prohibits wage discrimination between employees on the basis of sex . The appellant’s contention that his pay was set at a rate lower than “national and local rates paid by employers in the private sector,” IAF, Tab 32 at 533, does not demonstrate that he had a reasonable belief that he was disclosing a violation of the Equal Pay Act. The appellant’s petition for review does not persuade us that the administrative judge erred in her findings regarding this claim. review) of an agency , or the Special Counsel, in accordance with applicable provisions of law .” 10 ¶16 Although not raised by the appellant below or on review, IAF, Tab 32 at 34; PFR File, Tab 3 at 23, we have consid ered whether the appellant’s December 2016 OSC complaint could constitute activity protected by 5 U.S.C. § 2302 (b)(9)(C), which states that it is a prohibited personnel practice to, among other thi ngs, take a personnel action against any employee because of “disclosing information to . . . the Special Counsel, in accordance with applicable provisions of law.” In contrast to the provision at subsection 2302(b)(8)(B), which requires proof of a disclo sure to OSC of a reasonable belief of any violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health of safety to be protected, section 2302(b)(9)(C) imposes no requirements on the content of the appellant’s communications with OSC, see, e.g. , Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶ 62 (finding that section 2302(b)(9)(C) covers employee disclosures to OSC regardless of content) . We conclude th at the appellant’s December 2016 OSC complaint is protected by 5 U.S.C. § 2302 (b)(9)(C). ¶17 We next consider whether the protected activity was a contributing factor in the removal action . One way of proving that an appellant's prior protected activity was a contributing factor in a personnel action is the “knowledge/timing” test. See Shibuya v. Department of Agriculture , 119 M.S.P.R. 537 , ¶ 22 (2013). Under this test, an appellant can establish that his prior protected activity was a contributing factor in the challenged action by showing that the deciding official knew of the protected activity and took the personnel action within a period of time such that a reasonable person could conclude that the protected activity was a contributing factor in the action. Id.; See also Alarid v. Department of Army , 122 M.S.P.R. 600 , ¶ 13 (2015). ¶18 The appellant asserted below and on review that OSC contacted the agency as part of its investigation into his December 2016 complaint, and he speculated that the proposing and deciding officia ls had knowledge of this complaint. IAF, 11 Tab 32 at 490; PFR File, Tab 3 at 24. He does not cite to, and we are not aware of, any evidence that the proposing or deciding officials had any actual knowledge of the December 2016 OSC complaint; his speculatio n on this issue does not constitute preponderant evidence in this regard. ¶19 However, an appellant may show that his protected activity was a contributing factor by proving that the official taking the action had constructive knowledge of the whistleblowing disclosure or activity, even if the official lacked actual knowledge. Nasuti v. Department of State , 120 M.S.P.R. 588, ¶ 7 (2014). An appellant may establish constructive knowledge by demonstrating that an individual with actual knowledge of the disclosure or activity influenced the official accused of taking the retaliatory action. Id. ¶20 The Board’s electronic records reflect that the appellant filed an individual right of action (IRA) appeal in which he specifically identified his December 2016 OSC complaint as the relevant disclosure, and the appeal was dismissed for lack of jurisdiction in February 2017. Coy v. Dep artment of the Treasury , MSPB Docket No. DC -1221 -17-0278 -W-1, Initial Decision (Feb. 9, 2017). The agency was represented by counsel in the IRA appeal, the proposing official testified in her deposition that she “worked with the legal office to put [the S eptember 20, 2017 notice of proposed removal] together,” and the deciding official likewise testified in her deposition that she worked with the “attorneys” regarding questions about the notice of proposed removal and the process of drafting the decision t o remove the appellant. IAF, Tab 32 at 93 (deposition testimony of the proposing official), 264 -65, 333 (deposition testimony of the deciding official). In fact, the deciding official testified in her deposition that the “attorneys . . . do a first versi on” of the decision letter, which she then edited. Id. at 297 (deposition testimony of the deciding official). Based on this evidence, we find for the purposes of our analysis that, through the agency’s counsel, the proposing and deciding officials had c onstructive knowledge of the December 2016 OSC complaint. See, e.g. , Cahill v. Merit Systems Protection Board , 12 821 F.3d 1370 , 1374 (Fed. Cir. 2016) ( stating that “when read with an eye on likely inferences appropriate to the context, Mr. Cahill’s allegations are sufficiently specific and plausible to constitute nonfrivolous assertions that at least one, and perhaps three, of the officials charged with the personnel actions at issue attended the March 2012 meeting or at least knew what Mr. Cahill disclosed there.”); Jessup v. Department of Homeland Security , 107 M.S.P.R. 1, ¶ 10 (2007) (finding that the appellant nonfrivolously alleged that his disclosure was a contributing factor in the agency’s decision to remove him based on his claim that the agency decision makers either knew of the disclosure via the C hief of Staff or were influenced by the Chief of Staff who knew of the disclosure).7 ¶21 Having found that the knowledge element is satisfied, we now turn to the timing element of the knowledge/timing test . The record reflects that the agency proposed the a ppellant’s removal on September 20, 2017, and his removal was effected on April 13, 2018. IAF, Tab 5 at 14, 82. The Board has held that a personnel action taken within approximately 1 to 2 years of the appellant’s disclosures satisfies the knowledge/timi ng test. Mastrullo v. Department of Labor , 123 M.S.P.R. 1 10, ¶ 21 (2015). Accordingly, we conclude that the appellant has satisfied the knowledge/timing test, and therefore he has met his burden to show that his protected activity was a contributing factor in his removal . ¶22 In determining whether an agency has shown by clear and convincing evidence that it would have taken the s ame personnel action in the absence of protected activity , the Board will consider the following factors: the strength of the agency’s evidence in support of its action; the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the 7 Although Cahill and Jessup were individual right of action appeals, and the issue was whether the appellant had made nonfrivolous allegations of Board jurisdiction, we find that the principles articulated therein are equally applicable under the circumstances of this matter. 13 decision; and any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999). ¶23 As explained below, t he agency’s evidence in support of its action is generally strong. The misuse of Government property charge requires proof of unauthorized use. Diaz v. Department of the Army , 56 M.S.P.R. 415 , 420 (1993). The agency’s charge included three specifications alleging that, on March 16, 2017, during a sworn deposition, the appellant stated in pertinent part that he (1) accessed and downloaded personnel data from an Office of the Comptroller for Currency (OCC) system to include, among other things, names, titles, band levels, social security numbers, and service computation dates for 94 employe es “for [his] own personal use and without authorization” ; (2) accessed and downloaded 80 pages of OCC new hire salary justification rollup information “for [his] own personal use and without authorization” ; and (3) emailed the information described in spe cifications 1 and 2 to his personal email account and stored the information on his personal computer at home, and he was not authorized to remove OCC personnel information from the OCC, transmit such information outside of OCC’s networks, or store OCC per sonnel information on his personal computer. ID at 3; IAF, Tab 5 at 82. The administrative judge did not specifically evaluate whether the agency proved the specifications and charge by preponderant evidence; however, in the context of evaluating the app ellant’s affirmative defenses, the administrative judge stated that she would have sustained the charge and supporting specifications absent her findings on the due process and harmful procedural error issues. ID at 15 -16. ¶24 In his cross petition for revi ew, the appellant makes the following arguments: (1) he was authorized to access personnel data and new hire salary justification rollup information; (2) he did not email the data described in specifications 1 and 2 to his personal email address or store that information on his personal computer; and (3) his good -faith attempts to comply with the 14 agency’s discovery demands cannot sustain the agency’s charge. PFR File, Tab 3 at 11 -18. ¶25 In his response to the agency’s discovery requests in the USERRA appea l, the appellant referenced as support for his claim an “OCC New Hire Salary Justification Excel Export” and a “Salary listing for all OCC employees who[] are in occupational series 0201, regardless of band level,” and he included as attachments “OCC New H ire Salary Justification Rollup from Sharepoint.pdf” and “OCC HC Employee Listing 20170214.pdf.” IAF, Tab 32 at 499 -500, Tab 33 at 150 -231, Tab 35 at 72-74. In his deposition in that matter, the appellant was questioned at length about these documents. IAF, Tab 5 at 124 -36 (deposition testimony of the appellant). In pertinent part, the appellant explained that he had created the OCC New Hire Salary Justification Excel spreadsheet by “playing around in the [new hire salary justification SharePoint site,] ” “export[ing] all of the information into an Excel worksheet,” and adding additional columns of information, such as “recommended base salary including Geo[sic] pay,” and “percent increase.” Id. at 124 -25 (deposition testimony of the appellant). Regardi ng the salary listing chart, the appellant testified that it was a list of all employees in the agency in the 0201 Human Resources Management Occupational Series, and the data itself came from the National Finance Center Reporting Center, which is a databa se that is accessible to certain Human Capital employees. Id. at 126 -27 (deposition testimony of the appellant). ¶26 Neither party disputes that the appellant was authorized to access and review generally the personnel data in question as part of his duties. Rather, the ultimate question presented in specifications one and two is whether the appellant’s compilation and use of such personnel data for litigation against the agency was authorized.8 8 We r eject the appellant’s contention that specifications 1 and 2 were “limited to whether or not Appellant was authorized to access certain data.” PFR File, Tab 3 at 13. 15 ¶27 Importantly, the agency’s Appropriate Use of OCC Infor mation Technology (IT) Manual specifically stated that “[a]uthorized purposes are those for which OCC IT resources are issued (e.g., job -related tasks) or those functions authorized in accordance with law or regulation.”9 IAF, Tab 33 at 136. We have cons idered, as described in the attachment to this Manual, that the agency “has a longstanding practice of allowing employees limited use of government IT equipment . . . for personal, nongovernmental purposes during non -work time.” Id. at 143. The agency pr ovided several examples of authorized limited personal use of OCC IT, including such minor tasks as using a calculator or spreadsheet for personal finances, composing or printing a résumé or job application, exchanging emails with friends or family, making internet purchases on a personal charge card, and checking websites for information on personal interests, weather, job vacancies, news, or sporting events. Id. The agency also provided examples of unauthorized personal use, which include using OCC IT t o gain unauthorized access to OCC and other information systems, and creating, downloading, viewing, or storing sexually explicit, threatening, or harassing material. Id. ¶28 The appellant’s decision to compile and use the personnel data as described above to support his litigation against the agency was not a job -related task nor was it authorized in accordance with any law or regulation. Moreover, the appellant’s compilation and use of such information for litigation purposes against the agency does not ali gn with the authorized limited personal uses described above. Finally, we have considered the appellant’s argument that his reference to and production of these documents constituted a good -faith attempt to comply with the agency’s discovery demands, PFR File, Tab 3 at 17 -18, but we are not persuaded that a different outcome is warranted. The appellant has not cited, and we are unaware of, any exception to the agency’s authorized use policy 9 The appellant does not contend that he was unaware of this policy or any other relevant policies. 16 involving discovery requests in an ongoing litigation matter. Fo r these reasons, we find the evidence in support of specifications 1 and 2 to be strong . ¶29 We now turn to specification 3, which alleged that the appellant testified in his deposition that he emailed the information described in specifications 1 and 2 to his personal email account and stored the information on his personal computer at home, but he was not authorized to remove OCC personnel information from the OCC, transmit such information outside of OCC’s networks, or store OCC personnel information on his personal computer. IAF, Tab 5 at 82. ¶30 The appellant testified in his March 16, 2017 deposition that he submitted his response to the agency’s discovery requests, which included the aforementioned documents, to the agency by email. Id. at 134 (deposition testimony of the appellant). The appellant explained that he originally sent his discovery responses to the agency from his “personal email address,” but because the agency attorney did not receive it, he forwarded the documents to the agency attorney fr om his “OCC email [address].” Id. (deposition testimony of the appellant); IAF, Tab 32 at 499 -500. The appellant admitted that he was “at home” when he sent the documents to the agency attorney from his OCC email address. IAF, Tab 5 at 134 (deposition t estimony of the appellant). The appellant further testified that the electronic version of the files in question were on his OCC computer and his home computer. Id. at 135 (deposition testimony of the appellant). The appellant was asked about how the do cuments ended up on his home computer, and he answered, “I believe I emailed them to myself.” Id. (deposition testimony of the appellant). Upon further questioning, he indicated that he “[did not] remember how [he] sent them to [him]self,” but he “believ e[d] [he] emailed them . . . because [he] [did not] have a thumb drive.” Id. at 136 (deposition testimony of the appellant). The appellant further testified that he “[did not] recall” if he emailed the documents from his OCC email address. Id. (depositi on testimony of the appellant). When asked if he emailed any other OCC documents to his home email address, he acknowledged that he emailed his 17 résumé, but he stated that he did not “believe [that he] emailed any OCC documents to [him]self.” Id. (deposit ion testimony of the appellant). ¶31 More than 7 months after his deposition, in his response to the notice of proposed removal in this matter, the appellant submitted an October 19, 2017 declaration made under penalty of perjury in which he stated that, aft er the deposition, he “reviewed [his] recently sent email traffic and was unable to locate any instance of [him] emailing the OCC documents and information referenced in [the] Notice of Proposed Removal[] to [himself] to either [his] home computer or [his] personal email address.”10 IAF, Tab 5 at 54. In sum, the appellant’s deposition testimony regarding how he obtained and where he stored the documentation in question is not consistent with his subsequent declaration made under penalty of perjury.11 ¶32 Even i f there was some question as to the accuracy of the appellant’s original deposition testimony, there is preponderant evidence that the appellant removed OCC personnel information and transmitted OCC personnel information 10 During the pendency of this removal appeal, the appellant submitted a second declaration made under penalty of perjury , on March 14, 2019. IAF, Tab 32 at 490 -93. In this second declaration, the appellant largely reiterated the statements m ade in the first declaration. Id. With respect to the strength of the agency’s evidence, however, the Board considers the weight of the evidence as it existed before the agency when it acted. Social Security Administration v. Carr, 78 M .S.P.R. 313, 335 (1998), aff’d, 185 F.3d 1318 (Fed. Cir. 199 9). Moreover, to the extent relevant facts are developed on appeal to the Board that the agency had no prior reason to know, such facts would not undercut the agency’s otherwise sufficiently clear and convincing evidence that, at the time of the action, its decision would have been the same in the absence of whistleblowing. See Yunus v. Department of Veterans Affiars , 84 M.S.P.R. 78 , 82, 84, 85 (1999), aff’d , 242 F.3d 1367 (Fed. Cir. 2001) . Accordingly, while we consider the appellant’s first declaration, which was submitted before the agency issued the decision to remove the appellant, we find that the second declaration is not relevant to our determination of the strength of the evidence. 11 The appellant declared under penalty of perjury that he was not given an opportunity to review his deposition tes timony, IAF, Tab 5 at 53, and he argues on review that he was unable to correct or clarify any of his deposition testimony, PFR File, Tab 3 at 15-17. There appears to be some support in the record for this contention. IAF, Tab 32 at 624. Although we hav e considered the appellant’s declaration and argument on review, it does not warrant a different outcome. 18 outside of OCC’s networks. The age ncy points out that the appellant’s March 15, 2017 email, which he sent to agency counsel from his OCC work account, had embedded within it a March 14, 2017 email from his personal email account that included as PDF attachments the documents described in s pecifications 1 and 2 . IAF, Tab 35 at 52 -53. The appellant’s claim in his declaration that he was unable to locate a personal email in which he sent these documents to himself is not credible in li ght of the appellant’s deposition testimony, which was cl oser in time to the events at issue, and this unrebutted documentary evidence. According ly, we find that it is more likely than not that the appellant removed OCC personnel information and transmitted the information outside OCC’s networks as charged by the agency . Thus, we find that specification 3 was also supported by strong evidence .12 ¶33 In sum, we find that the agency was in possession of strong evidence that the appellant committed the conduct underlying the charge of misuse of Government property.13 In addition, w e find that the misconduct was very 12 However, the agency did not clearly show that the appellant stored OCC personnel information on his personal computer, and the appel lant’s statement s on this issue are inconsistent. Th us, the agency ’s evidence regarding the portion of specification 3 that charged the appellant with storing OCC personnel information on his home computer was relatively weak. IAF, Tab 5 at 82. Nonetheless, overall, th e agency’s evidence in support of this specification was solid. Cf. Taylor v. Department of the Army , 107 M.S.P.R. 63 8, ¶ 17 & n* (finding no error in sustaining a specification when the agency proved the essence of the specification) ; Brown v. U.S. Coast Guard , 10 M.S.P.R. 57 3, 578 (1982) (sustaining specification 4B because the agency proved by preponderant evidence the essence of this specification) . 13 Specification 3 contained the same allegations in the first and second removal actions, and the Federal Circuit upheld the administrative judge’s decision to sustain specification 3 in the second removal action in its entirety. Regardless of whether the elements of collateral estoppel are met, we decline to apply that doctrine in these circumstances. See Kroeger v. U.S. Pos tal Service , 865 F.2d 235 , 239 (Fed. Cir. 1988) (stating that it would not be error to decline to apply collateral estoppel even when its requirements are met); Hay v. U.S. P ostal Service , 103 M.S.P.R. 167 , ¶ 9 (2006) (explaining that the Board may refrain from applying collateral estoppel, even when the requirements have been met, if its application would result in injustice or compromise public policy); Tanner v. U.S. Postal Service , 94 M.S.P.R. 417 , ¶ 15 (2003) (noting that 19 serious , particularly considering the appellant’s position as Director of Compensation and Benefits, his access to confidential personnel data, and his awareness of agency policies regarding the authorized use of such data. ID at 14-17. Thus, this Carr factor strongly favors the agency. ¶34 Regarding the second Carr factor, the administrative judge found “no evidence” of a retaliatory motive by any of the managers involved in this action. ID at 15. We modify the initial decision because, even if the proposing and deciding officials had no actual knowledge of the OSC complaint in question, there can still be some motive to retaliate because the appellant’s disclosure reflects poorly on the agency. See, e.g. , Whitmore v. Department of Labor , 680 F.3d 1353 , 1370 (Fed. Cir. 2012) (“Those responsible for the agency’s performance ov erall may well be motivated to retaliate even if they are not directly implicated by the disclosures, and even if they do not know the whistleblower personally, as the criticism reflects on them in their capacities as managers and employees.”). Thus, this factor slightly favors the appellant. ¶35 Regarding the third Carr factor, the deciding official testified in her deposition that she could not recall any cases involving similar unauthorized access of OCC information . IAF, Tab 32 at 324 (deposition testimon y of the deciding official). The record does not contain any other evidence showing agency treatment of employees who are not whistleblowers but who are otherwise similarly situated to the appellant. ¶36 The Federal Circuit has stated that Carr “imposes n o affirmative burden on the agency to produce evidence for each of the three factors.” Rickel v. Department of the Navy , 31 F .4th 1358 , 1365 (Fed. Cir. 2022); see also Staley v. Depar tment of Veterans Affairs , No. 2020 -2127, 2021 WL 2965007, at 2 (Fed. Cir. July 15, 2021) (per curiam) . It has further held that “the absence of any considerations of public economy and private repose that underlie the doctrine of collateral estoppel must be balanced against the competing interest of fundamental fairness and due process). 20 evidence relating to Carr factor three can effectively remove that factor from the analysis,” but that the failure to produce such evidence if it exists “may be at the agency’s peril,” and “may well cause the agency to fail to prove its case overall.” Whitmore , 680 F.3d at 1374 -75. Under the circumstances here, in which the agency addressed this issue but had no evidence to present, we find that this factor is largely neutral. ¶37 After balancing all of the evidence bearing on the appellant’s claim that the action was taken in retali ation for her protected activity, w e conclude that the agency has proven by clear and convincing evidence that it would have removed the appellant absent his December 2016 OSC complaint. November 30, 2017 OSC Complaint ¶38 The appellant’s November 30, 2017 OSC complaint involved allegations that the proposed removal was taken in retaliation for his earlier OSC complaint and his prior USERRA Board appeal. IAF, Tab 1 at 18 -38, Tab 32 at 543 -44. The administrative judge did not specifically address this complain t in the initial decision. We do so now. For the reasons explained above, we conclude that the appellant’s November 30, 2017 OSC complaint is also protected by 5 U.S.C. § 2302 (b)(9)(C). Further, in his supplemental response to the notice of proposed removal, the appellant specifically advised the deciding official that he filed the OSC complaint and that the OSC investigation was ongoing, IAF, Tab 5 at 19, and OSC separately asked the agency’s En terprise Governance Operations office to stay the removal pending an investigation, IAF, Tab 32 at 543 -44. The removal was effected on April 13, 2018, IAF, Tab 5 at 14, which satisfies the timing element, Wadhwa v. Department of Veterans Affairs , 110 M.S.P.R. 615, ¶ 13, aff’d , 353 F. App’x 435 (Fed. Cir. 2009). As a result , we find that the appellant has satisfied his burden to prove con tributing factor. ¶39 We also find that the agency proved by clear and convincing evidence that it would have removed the appellant absent his protected activity. As discussed above, the first Carr factor strongly favors the agency. Our analysis of the 21 secon d Carr factor, the existence and strength of the motive to retaliate, more strongly favors the appellant with respect to the November 30, 2017 OSC complaint because the deciding official was named in the complaint, she knew about it, and the appellant’s disclosure reflects poorly on her and the agency. Whitmore , 680 F.3d at 1370. Our analysis of the third Carr factor remains the same. On balance, however , we conclude that the agency established by clear and convincing evidence that it would have taken the removal action absent this OSC complaint. We remand the appeal for further adjudication of the appellant’s claims of retaliation for his prior EEO activity and for his prior USERRA appeal. ¶40 In his cross petition for review, the appellant asserts that the administrative judge erred in finding that the agency did not retaliate against him for his USERRA appeal, for his OSC complaints, or for his prior EEO activity (alleging discrimination and retaliation based on disability, veteran status, race, and col or). PFR File, Tab 3 at 4, 20 -26. ¶41 In the initial decision, the administrative judge identified the following standard to evaluate these claims: the appellant has to prove by preponderant evidence that he engaged in protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D), and the protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action; if the appellant meets this burden, the ag ency 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 activity. ID at 13 -14 (citing Fellhoelter v. Department of Agriculture , 568 F.3d 965 (Fed. Cir. 2009), and Webb v. Department of the Interior , 122 M.S.P.R . 248 (2015)). Notably, however, Fellhoelter and Webb involved claims of retaliation for whistleblowing disclosures, not retaliation for filing a USERRA appeal or for prior EEO activity. In fact, the standard identified by the administrative judge, by it s very language, does not include the appellant’s claims 22 of reprisal for filing a USERRA Board appeal14 or for his prior EEO activity because neither of them implicate 5 U.S.C. § 2302 (b)(9)(A)(i), ( B), (C), or (D). Below, in the order and summary of prehearing conference, the administrative judge noted that the appellant raised claims of reprisal for his prior USERRA appeal and for prior EEO activity, but she did not identify any standard for the former and she utilized an outdated standard for the latter. IAF, Tab 31 at 2-4. Accordingly, because the administrative judge did not give the appellant proper notice of his burden to prove these claims, we remand them to the administrative judge for noti ce and adjudication. ¶42 We provide the administrative judge and the parties with guidance on remand for analyzing these claims. Below and in his cross petition for review, the appellant relied on a standard applied to claims arising under 5 U.S.C. § 2302 (b)(9)(A)(ii), which makes it a prohibited personnel practice to “take . . . any personnel action against an employee . . . because of the exercise of any appeal . . . granted by any law, rule, or reg ulation . . . other than with regard to remedying a violation of [section 2302(b)(8)].” IAF, Tab 32 at 29 -33; PFR File, Tab 3 at 20 -23. The appellant has cited to Mattison v. Department of Veterans Affairs , 123 M.S.P.R. 492, ¶ 8 (2016), for the proposition that to prevail on an affirmative defense pursuant to 5 U.S.C. § 2302 (b)(9)(A)(ii), 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 th e alleged retaliation and the adverse action. IAF, Tab 32 at 29 -30; see PFR File, Tab 3 at 20 -23 (analyzing these elements). 14 By the appellant’s own admission, his prior USERRA appeal does not involve whistleblowing activity. PFR File, Tab 3 at 20 -23 (stating that his appeal is protected by 5 U.S.C. § 2302 (b)(9)(A)(ii)). 23 ¶43 However, we find that the appellant’s reliance on this standard is misplaced .15 In Brasch v. Department of Transportation , 101 M.S.P.R. 145, ¶ 6 (2006) , the Board explicitly found that the four-prong test set out above is inapplicable to claims of retalia tion for prior USERRA Board appeals . Instead, the Board found that the USERRA standard for retaliation claims is set forth in 38 U.S.C. § 4311 (b), (c)(2). Id. Consistent with this precedent, on remand, the administrative judge shall provide the parties with proper notice of the USERRA provisions for claims of retaliation.16 Pursuant to 38 U.S.C. § 4311 (b), an employer “may not discrimina te against or take any adverse employment action against any person because such person . . . has taken an action to enforce a protection afforded any person under this chapter.” If an appellant engages in protected activity described in section 4311(b), an agency violates this section if the appellant’s protected activity “is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such person’s [protected activity].” Burroughs v. Department of the Army , 120 M.S.P.R. 392, ¶ 7 (2013) (citing 38 U.S.C . § 4311 (c)(2)). ¶44 Regarding the appellant’s claim of reprisal for prior EEO activity, the record reflects that this activity involved allegations of reprisal and 15 Importantly, Mattison does not involve a claim of retaliation for a prior USERRA appeal; rather, it involves Information Security Office and Freedom of Information A ct appeals. Mattison , 123 M.S.P.R. 492 , ¶¶ 7-8. 16 In discussing his affirmative defenses, the appellant noted that he also alleged discrimination based on “veteran status.” IAF, Tab 32 at 36. Although unclear, we have considered whether the appellant intended to make a separate USERRA discrimination claim. Loggins v. U.S. Postal Service , 112 M.S.P.R. 471 , ¶ 16 (2009). The appellant should clarify on remand whether he intended to raise a USERRA discrimination claim in this matter, and the administrat ive judge should, if necessary, provide proper notice of the appellant’s burden to prove such a claim. See, e.g. , Sheehan v. Department of the Navy , 240 F.3d 1009 , 1013 -15 (Fed. Cir. 2001) (finding that, in USERRA actions, an individual must initially show by preponderant evidence that the individual’s military status was at least a motivating or substantial factor in the agency action, upon which the agency must prove, also by preponderant evidence, that the action would have been taken for a valid reason despite the protected status). 24 discrimination based on disability, race, and color. IAF, Tab 32 at 36, 504 -24. The Board’s analysis of these claims is governed by Pridgen , 2022 MSPB 31 , ¶¶ 45-47, which was issued after the initial decision in this matter. On remand, the administrative judge should provide notice of the parties’ burdens or proof as to these defenses as set out in Pridgen . ¶45 After the administr ative judge provides proper notice of the appellant’s burdens, she may reopen the record to take evidence only related to these claims. She should issue a new initial decision that incorporates our findings herein and her analysis and conclusion regarding these reprisal claims. We deny the appellant’s petition to enforce interim relief. ¶46 When, as here, the appellant was the prevailing party in the initial decision and interim relief was ordered by the administrative judge, a petition for review filed by th e agency must be accompanied by a certification that the agency has complied with the interim relief order, either by providing the interim relief ordered, or by making a determination that returning the appellant to the place of employment would cause und ue disruption to the work environment. Elder v. Department of the Air Force , 124 M.S.P.R. 12, ¶ 18 (2016); 5 C.F.R. § 1201.116 (a). In its petition for review, the agency states that it complied with the interim relief order, it includes some documentation showing its efforts to comply with that order, and it advises that the appellant’s presence in the workplace presented an undue disruption. PFR File, Tab 1 at 26 -30. In the petition to enforce interim relief, however, the appellant asserts that the agency did not pay him dating back to September 11, 2019, t he date that the initial decision was issued; rather, he was only paid from October 13 to 26, 2019. PFR File, Tab 5 at 4 -7. In its response, the agency acknowledges that there were some processing delays associated with the payment, and it provides an ex planation and timeline for when benefits were restored. PFR File, Tab 6 at 5, 8 -14, 16. In his reply brief, the appellant argues that the agency did not comply with 5 C.F.R. § 1201.183 (a)(1). PFR File, Tab 8. 25 ¶47 The appellant’s petition for enforcement is denied because the Board’s regulations do not allow for a petition for enforcement of an interim relief order. Elder , 124 M.S.P.R. 12, ¶ 20. We may instead consider the appellant’s pleading as a challenge to the agency’s certification of compliance. Id.; 5 C.F.R. § 1201.116 (b). However, because we are affirming the administrative judge’s decision to reverse the removal on due process grounds, the appellant is receiving a final Board order on the merits in his favor, and the remanded issues have no effect on the appellant’s entitlement to appropriate relief in this regard, the agency’s compliance with the interim relief order is now a moot issue. Elder , 124 M.S.P.R. 12, ¶ 20; Cowart v. U.S. Postal Service , 117 M.S.P.R. 572, ¶¶ 6-7 & n. (2012). To the extent that there remain any issues of agency noncompliance with this final decision, the appellant may file a petition for enforcement in accordance with the instructions provided below. ORDER ¶48 For the reasons discussed above, we affi rm the administrative judge’s decision to reverse the removal on due process grounds. We also affirm as modified herein her decision that the appellant did not prove his claim of reprisal for his OSC complaints. We remand the appeal to the Washington Reg ional Office for proper notice of his burden to prove his claims of reprisal for his prior USERRA appeal and for prior EEO activity, for reopening of the record limited to evidence relating to these claims only, and for further adjudication in accordance with this Remand Order. ¶49 Because we have reversed the appellant’s removal , despite the fact that the claims of reprisal for his prior USERRA appeal and for his prior EEO activity must be remanded for further adjudication , we ORDER the agency to cancel the removal and retroactively restore the appellant, effective April 13, 2018. See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The 26 agency must complet e this action no later than 20 days after the date of this decision. ¶50 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later tha n 60 calendar days after the date of this decision. Because the court upheld the second removal action against the appellant, which became effective on December 28, 2019, Coy, 43 F.4th at 1340, the appellant’s entitlement to back pay and other benefits mu st end no later than December 28, 2019. 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 carr y 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. ¶51 We further ORD ER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and to describe the actions it took to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progres s. See 5 C.F.R. § 1201.181 (b). ¶52 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcem ent with the office that issued the initial decision in this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has 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). 27 ¶53 For agencies whose payroll is administered by eith er 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 att ached. 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: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 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. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20 Pay%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 noti fied 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 ea rnings 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 l ater 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 fr om 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). 2 NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK 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 Seve rance 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 a pplicable). 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.	COY_WILLIAM_DC_0752_18_0528_I_1_REMAND_ORDER_2046620.pdf	2023-07-05	null	DC-0752	NP
2,936	https://www.mspb.gov/decisions/nonprecedential/STOKES_SHARONDE_K_DE_0714_20_0225_I_1_FINAL_ORDER_2046628.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SHARONDE K. STOKES, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DE-0714 -20-0225 -I-1 DATE: July 5, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sharonde K. Stokes , South Salt Lake, Utah, pro se. Delany Steele , Lakewood, Colorado, for the agency. BEFORE Cathy A. Harris, Vice Ch airman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has petitioned for review of the initial decision in this appeal. For the reasons set forth below, we DISMISS the appeal as settled. ¶2 After the appellant filed her petition for review, the agency submitted a document titled “SETTLEMENT AGREEMENT,” signed and dated by 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 dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 appellant and her representative on June 1 , 2023, and by the agency on June 5 , 2023. Petition for Review (PFR) File, Tab 6. The document provides, among other things, for the withdrawal of the present appeal. Id. at 4. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146 , 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it . See Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 10 -11 (2017). ¶4 Here, we find that the parties have entered into a settlement agreement and understand its terms. PFR File, Tab 6 at 6. We further find that the par ties do not intend to enter the agreement into the rec ord for enforcement by the Board, as the agreement instead provides for enforcement by the Equal Employment Opportunity Commission (EEOC ).2 Id. at 5. We thus need not address the additional considerations regarding enforcement and do not enter the agreement into the record for enforcement by the Board. ¶5 In light of the foregoing, we f ind that dismissing the appeal with prejudice to refiling (i.e., the parties normally may not refile this ap peal) is appropriate under the circumstances. 2 In response to a prompt from the Board’s e -Appeal Online electronic filing system, the agency indicated that the parties wanted the settlement agreement entered into the record for enforcement by the Board. PFR Fil e, Tab 6 at 3. However, the settlement agreement provides that the agreement is to be made part of the EEOC’s records for enforcement purposes, that it is the parties’ “express intention . . . that the EEOC retain jurisdiction over this agreement for enfo rcement purposes ,” and that the appellant may appeal to the EEOC if the agency does not honor obligations under the agreement in the event of a breach. Id. at 5, 7. As the terms of the agreement itself are paramount in construing a contract , see Greco v. Department of the Army , 852 F.2d 558 , 560 (Fed. Cir. 1988) , we find that the parties do not intend for the settlement agreement to be entered in to the Board’s record s for enforcement. 3 ¶6 This is the fin al decision of the Merit Systems Pr otection Board in this appeal. 5 C.F.R. § 1201.113 (c). 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 and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and req uirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Boa rd order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is t he court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Fe deral Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any att orney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is ap pealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriat e U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this de cision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 5 race, color, religion, sex, national origin, or a d isabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 4 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	STOKES_SHARONDE_K_DE_0714_20_0225_I_1_FINAL_ORDER_2046628.pdf	2023-07-05	null	DE-0714	NP
2,937	https://www.mspb.gov/decisions/nonprecedential/TAMBORNINI_KIRK_K_SF_0845_22_0463_I_1_FINAL_ORDER_2046634.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KIRK K. TAMBORNINI, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER SF-0845 -22-0463 -I-1 DATE: July 5, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kirk K. Tambornini , Sebastopol, California, pro se. Michael Shipley , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has petitioned for review of the initial decision in this appeal. Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the appeal as settled. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 ¶2 After the appellant filed his petition for review, the parties submitte d a document entitled “SETTLEMENT AGREEMENT,” which they signed and dated on March 17, 2023. PFR File, Tab 5. The document provides, among other things, that the parties “agree that the Board shall dismiss the pending petition for review as settled becau se of the resolution of their differences” regarding the issues in this case and in exchange for certain promises made by the agency. Id. at 4. The parties have further agreed for the agreement to be entered into the record for enforcement purposes. Id. at 5. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by t he Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146 , 149 (1988). In addition, before accepting a settlement agreement into th e 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). ¶4 Here, we find that the parties have entered into a settlement agreement, understand its terms, an d intend for the agreement to be entered into the record for enforcement by the Board. PFR File, Tab 5 at 3-5. Accordingly, we find that dismissing the appeal with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropria te under the 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. ¶5 This is the final decision of the Merit Systems Protectio n Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). 3 NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS If the agency or the appe llant has not fully carried out the terms of the agreement, either party may ask the Board to enforce the settlement agreement by promptly filing a petition for enforcement with the office that issued the initial decision on this appeal. The petition shou ld 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 RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims d etermines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wi sh to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your ca se by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If 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 th e 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, wh ich must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 5 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calen dar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer a nd to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decisio n. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If 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 Washingt on, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with th e 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 Feder al Circuit or any other circuit court 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. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	TAMBORNINI_KIRK_K_SF_0845_22_0463_I_1_FINAL_ORDER_2046634.pdf	2023-07-05	null	SF-0845	NP
2,938	https://www.mspb.gov/decisions/nonprecedential/STRAND_KATHY_K_DE_3330_17_0063_I_1_FINAL_ORDER_2046660.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KATHY K. STRAND, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DE-3330 -17-0063 -I-1 DATE: July 5, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kathy K. Strand , Kansas City, Missouri, pro se. Kristine H. Bell , Esquire, Fort Leavenworth, Kansas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her ap peal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review and AFFIRM the initial decision AS MODIFIED. We MODIFY the initial decision to find that the Board has 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case la w. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 jurisdicti on over her appeal and DISMISS the appeal for failure to state a claim upon which relief can be granted . BACKGROUND ¶2 The appellant, a Training Instructor , GS -1712 -13, with the agency’s Combined Arms Center (CAC) , applied for a temporary promotion to Director, CAC G5, GS -1701 -14. Initial Appeal File ( IAF), Tab 8 at 19, Tab 9 at 12 -16, 23-26. The appellant was deemed qualified for and interviewed for the position , but the panel conducting the interviews did not select her as one of the three applicants referred to the selecting official. IAF, Tab 1 at 5, Tab 9 at 18, 23 -26. On October 19, 2016, the appellant learned she was not selected for the position. IAF, Tab 1 at 5, 8. ¶3 On November 1, 2016, the appellant filed a Board appeal alleging she was unfairly not selected for the Director position, noti ng that her DD Form 214 was attached to her application, and that she had filed a whistleblowing complaint with the Office of Special Counsel. Id. at 3-5, 9-12. The administrative judge issued an order notifying the appellant of the requirements to estab lish Board jurisdiction over her claim under the Veterans Employment Opportunities Act of 1998 (VEOA) and ordering her to file statements and documentation addressing exhaustion of her administrative remedy with the Department of Labor (DOL) , her status as a preference eligible, and the statute or regulation relating to veterans’ preference that was violated. IAF, Tab 3 at 2 -7. ¶4 The appellant filed a response in which she alleged that the agency’s lack of internal procedures for promotion resulted in an adverse impact under the Uniform Guidelines. IAF, Tab 8 at 5. She also alleged that the agency committed prohibited per sonnel practices under 5 U.S.C. § 2302 (b) when it gave another applicant pr eference and denied her the ability to compete using veterans’ preference, narrowly restricted the applicant pool to within the agency and by grade level, and moved the selectee to the position before her sel ection. Id. 3 at 5-6. The appellant also stated that “Board jurisdiction may exist where the non-selection is the product of discrimination based on uniformed service ” and cited 38 U.S.C. §§ 3311 , 4324 in support of this proposition. Id. at 6. The agency moved to dismiss the appeal, arguing that the appellant f ailed to establish jurisdiction because she did not allege a violation of her veterans’ preference rights. IAF, Tab 9 at 6 -9. The agency further argued that, in the event the administ rative judge found jurisdiction, the appeal should be dismissed for failure to state a claim upon which relief could be granted, because veterans’ preference does not apply to merit promotions limited to agency employees. Id. at 9-10. ¶5 The administrative j udge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID). The administrative judge found that it was not disputed that the appellant exhausted her administra tive remedy with DOL and made nonfrivol ous allegation s that she is a preference eligible and the action took place on or after the enactment of VEOA. ID at 3. Howe ver, he found that the appellant did not assert that the agency violated a statute or regulation relating to veterans’ preference, and that veterans’ preference did not apply to current employees who seek a promotion, particularly when merit promotion principles are used. ID at 3 -4. Finally, the administrative judge found that the Board lacked jurisdiction in a VEOA appeal to consi der the appellant’s claim s of prohibited personnel practices. ID at 4. The administrative judge also advised the appellant of her right to file a claim under the Uniform ed Services Employment and Reemployment Righ ts Act of 1994 (USERRA). I D at 4-5. ¶6 The appellant has filed a petition for review of the initial decision, to which the agency has filed an opposition. Petition for Review (PFR) File, Tabs 1, 3. On r eview, the appellant argues that she met her jurisdictional burden, and she is entitled to a h earing because the agency is not following its internal recruitment policy , the agency’s use of its internal recruitment policy instead of external recruiting denied her the ability to compete under veterans’ preference, and the 4 agency failed to promote th e employment and advancement of veterans under 38 U.S.C. § 4214 . PFR File, Tab 1 at 5 -7. DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge erred in dismissing the appeal for lack of j urisdiction. ¶7 Generally, t o establish Board jurisdiction over a veterans’ preference VEOA appeal brought pursuant to 5 U.S.C. § 3330a , an appellant must: (1) show that she exhausted her remedy w ith DOL ; and (2) make nonfrivolous allegations that (i) she is a preference eligible within the mea ning of VEOA, (ii) the action at issue took place on or after the October 30, 1998 enactment date of VEOA, and (iii) the agency violated her rights under a s tatute or regulation relating to veterans’ preference. 5 U.S.C. § 3330a (a); Lazaro v. Department of Veterans Affairs , 666 F.3d 1316 , 1319 (Fed. Cir. 2012) ; Haasz v. Department of Veterans Affairs , 108 M.S.P.R. 349 , ¶ 6 (2008) .2 An appellant n eed not state a claim upon which relief can be granted for the Board to have jurisdiction over a VEOA claim. Haasz , 108 M.S.P.R. 3 49, ¶ 6. ¶8 In this case , the record reflects, and it is undisputed, that the appellant showed that she exhausted her remedy with DOL and that she made nonfrivolous 2 An appellant also may establish Board jurisdiction over a “right to comp ete” VEOA appeal brought under 5 U.S.C. § 3330a (a)(1)(B) . To establi sh jurisdiction over such a claim , she must: (1) show that she exhausted her remedy with DOL; and (2) make nonfrivolous allegations that (i) she is a preference eligible or veteran within the meaning of 5 U.S.C. § 3304 (f)(1), (ii) the action at issue took place on or after the enactment date of the Veter ans’ Benefits Improvement Act of 2004, and (iii) the agency, in violation of 5 U.S.C. § 3304 (f)(1), denied her the opportunity to compete under merit promotion procedures for a vacant position for which the agency accepted applications from individuals outside its own workforce. Becker v. Department of Veterans Affairs , 115 M.S.P.R. 409, ¶ 5 (2010). Here, although the appellant alleged that the agency “violated my ability to compete” for the vacancy at issue using her veterans ’ preference, her right to compete for the vacancy was not implicated because , as explained below, the agency did not accept applications from outsi de its own workforce. IAF, Tab 8 at 6; 5 U.S.C. § 3304(f)(1); see Piirainen v. Department of the Army , 122 M.S.P.R. 194, ¶ 8 (2015). 5 allegations that she is a preference eligible under 5 U.S.C. § 2108 (3)(B) and that her nonselection for the vacancy at issue occurred after October 30, 1998. IAF, Tab 1 at 5, Tab 8 at 7 -8, 17 , Tab 9 at 7 . Therefore, the only remaining issue is whether the appellant made a nonfrivolous a llegation that the agency violated her rights under a statute or regulation relating to veterans’ preference. ¶9 At the jurisdictional stage, an appellant’s claim that the agency violated her veterans’ preference right s should be liberally construed. Elliott v. Department of the Air Force , 102 M.S.P.R. 364 , ¶ 8 (2006) ; Young v. Federal Mediation and Conciliation Service , 93 M.S.P.R. 99 , ¶¶ 6-7 (2002) ( citing the legislative history of VEOA for the proposition that it was intended to be a “user -friendly, yet effective” redress mechanism for the violation of veterans’ preference rights ), aff’d , 66 F. App’x 858 (Fed. Cir. 2003). Although the appellant ’s response to the order on jurisdiction alleged violations of 5 U.S.C. § 2302 (b), intertwined in the appellant’s allegations was her claim that the agency denied her the ability to compete using her veterans’ preference. IAF, Tab 8 at 6. Additionally, the appellant alleged that her non selection could be a vi olation of 38 U.S.C. §§ 3311 and 4324, which pertain, respectively, to veterans’ educational assistance and the enforcement of USERRA rights . Id. Pro se petitioners are not expected to frame issues with the precision of a common law pleading, and an appellant’ s allegation, in general terms, that her veterans’ preference rights were violated is sufficient to meet the no nfrivolous allegation standard . Elliott , 102 M.S.P.R. 364, ¶ 8; see Haasz , 108 M. S.P.R. 349 , ¶ 7 (finding that the appellant’s allegation that the agency violated an unspecified law relating to veterans’ preference was sufficient to meet the nonfrivolous allegation requirement). We find that the appellant’s arguments were sufficient to make a nonfrivolous allegation that her rights under a statute relating to veterans’ preference was violated and modify the initial decision to find that the appellant established Board jurisdiction over her appeal . 6 Although the Board has jurisdiction o ver the appeal, it must be dismissed for failure to state a claim upon which relief can be granted. ¶10 We nevertheless dismiss the appellant’s request for corrective action because she has failed to state a claim upon which relief can be granted . An appeal t hat is within the Board’s jurisdiction can be dismissed for failure to state a claim upon which relief can be granted if the appellant cannot obtain effective relief before the Board even if her allegations are accepted as true. Alford v. Department of De fense , 113 M.S.P.R. 263 , ¶ 11 (2010), aff’d , 407 F. App’x 458 (Fed. Cir. 2011). In appraising the sufficiency of an appeal, the Boar d will not dismiss an action for failure to state a claim unless it appears beyond doubt that the appellant can prove no set of facts in support of her claim that would entitle her to relief. Id. Dismissal for failure to state a claim is appropriate only if, taking the appellant’s allegations as true and drawing all reasonable inferences in her favor, she cannot prevail as a matter of law. Id. ¶11 Below, the administrative judge placed the appellant on notice of her burden to show a genuine dispute of mate rial fact in order to receive a hearing. The administrative judge stated in the jurisdictional order that , “If the appellant meets the burden of proving jurisdiction, he will be granted a hearing if he requested one and shows that th ere is a genuine dispu te of material fact that must be resolved to de termi ne whether the agency vi olated any of the rights discussed above.” IAF, Tab 3. The administrative judge also defined the terms “genuine” and “material,” as well as the preponderant evidence standard. Id. at 7. Furthermore, the appellan t, on review, acknowledges that the Board may ma ke a decision without a hearing in her case “if there is no dispute of material fact and one party must prevail as a matter of law” and then she sets out allegedly dispute d facts. PFR Fi le, Tab 1 at 7. However, no ne of these allegedly disputed facts go to the i ssue of whether the vacancy pro cess utilized merit promotion procedures, and both parti es agree that the vacancy proces s was merit promotion. Therefore, we find that the appellant had adequate n otice of the standard and burden of proof 7 she needed to prove jurisdiction. Davis v. Department of Defense , 105 M.S.P.R. 604, ¶ 14 (2007). ¶12 In the initial decision, t he administrative judge correctly observed that an employee is not entitled to veterans’ preference in the merit promotion process, or when an empl oyee seeks a promotion or intra -agency transf er under an announcement limited to internal candidates. ID at 3-4; see Joseph v. Federal Trade Commission , 505 F.3d 1380 , 1382 (Fed. Cir. 200 7) (holding that an employee is not entitled to veterans’ preference in the merit promotion process) ; Slater v. U.S. Postal Service , 112 M.S.P.R. 28 , ¶ 7 (2009 ) (finding that veterans’ preference does not apply when an employee seeks a promotion under an announcement limited to internal candidates ). The appellant has conceded that the vacancy announcement at issue utilized the merit promotion process and limite d applicants to “[c]urrent permanent Career or Career -Conditional Army emplo yees with competitive status.” IAF, Tab 9 at 12 , PFR File, Tab 1 at 4 . She acknowledges that the agency advertised the vacancy internally as a temporary promotion and has not alleged that the agency considered applicants from outside of the agency. PFR File, Tab 1 at 6 -7. Because eligibility for the temporary promotion was limited to candidates internal to the agency, the appellant was not entitled to veterans’ preference concer ning this vacancy. The appellant contends that the agency did not retain documents pertaining to the selection and that she disputes material facts as to the selection process , but there are no material facts in dispute regarding the agency’s use of merit promotion procedures to make a selection for the vacancy at issue. Id. at 5-7. Thus, the appellant’s claim is not one on which corrective action under VEOA can be granted, and we dismiss her request for corrective action based on her failure to state a claim upon which relief can be granted . See Brown v. Department of Veterans Affairs , 247 F.3d 1222 , 1224-25 (Fed. Cir. 2001) (holding that the petitioners failed to state a c laim upon which a request for relief could be granted because they were not entitled to veteran s’ preference when seeking promotion s or intra -agency transfers). 8 ¶13 The appellant ’s argumen t—that the agency’s decision to advertise the vacancy internally, inste ad of accepting app licants from outside of the agency, denied her the ability to compete under veterans’ preferenc e—does not provide a basis for relief . IAF, Tab 8 at 6, PFR File, Tab 1 at 5 -7. No provision of VEOA limits the agency’s ability to use the selection process that it deems most suitable to filling a particular vacancy. See Mann v. Department of the Army , 450 F. App’x 970, 972-73 (Fed. Cir. 2011) (holding that the appellant’s contention that the agency violated VEOA in limiting consideration f or the position to individuals within the agency was without merit);3 Joseph , 505 F.3d at 1384 (holding that , when the agency advertised a vacancy under both competitive -examining and merit -promotion procedures, no statutory or regulatory provision require d the agency to limit itself to the competitive -examination process in making its final selection). ¶14 Moreover, the appellant argues that the agency is required u nder 38 U.S.C. § 4214 to promote th e employment and advancement of veterans , and that it failed to do so here .4 PFR File, Tab 1 at 5 -7. Under 38 U.S.C. § 4214 (a)(1) , it is the policy of the United States to “promote the maximum of employment and job advancement opportunities within the Federal Government for qualified covered veterans [.]” However, our reviewing court has concluded that this general statement of purpose does not enlarge veterans’ preference to apply to promotions and inter -agency transfers. Brown , 247 F.3d at 1224 -25 (observing that section 4124(a) was enacted as part of the Vietnam Era Veterans’ Readjustment 3 The Board may follow a nonprecedential decision of the Federal Circuit when, as here, it finds its reasoning persuasive. Morris v. Department of the Navy , 123 M.S.P.R. 662 , ¶ 13 n.9 (2016). 4 Although the appellant cites this statutory provision for the first time on review, she made a variation of this argument below insofar as she appeared to allege that the agency’s internal promotion process had an adverse effect on veterans , and so we briefly address this argument . IAF, Tab 8 at 5 . 9 Assistance Act of 1974, which accorded veterans’ preference only for initial employment) . ¶15 The appellant’s other arguments concern the agency’s internal policies or do not implicate a statute or regulation pertaining to veteran’s preference, and we find them witho ut merit. PFR File, Tab 1 at 5 -7. For the reasons set forth above, we find that the appellant ha s failed to state a claim upon which relief can be granted and dismiss her request for corrective action. The administrative judge correctly found that the Board lacked jurisdiction to consider the appellant’s prohibited personnel practice claims. ¶16 The admi nistrative judge correctly found that the Board lacked jurisdiction to consider the appellant’s c laim that the agency committed prohibited personnel practice s in a VEOA appeal. ID at 4; see Slater , 112 M.S.P.R. 28 , ¶ 8. To the extent that the appellant may have filed a whistleblower reprisal complaint with OSC, she may file an individual right of action appeal with the Board’s regional office in accordance with the Board’s regulations. See 5 C.F.R. §§ 1209.5 , 1209.6.5 Finally , as set forth in the initial decision, the appellant may file a claim under USERRA in accordance with the Board’s regulations. See 5 C.F.R. §§ 1201. 22; 1208.11 -1208.16 . NOTICE OF APPEAL RIG HTS6 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 5 The appellant should carefully review the Board’s regulations to determine whether any individual right of action appeal she may file is timely. See 5 C.F.R. § 1209.5 . 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of re view rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 10 forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described below do not represent a statement of how courts will rule regarding which c ases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable ti me limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular f orum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a pe tition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional info rmation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11. 11 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action in volves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other secur ity. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the 12 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a reques t for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial deliv ery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protect ion Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice de scribed in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your petition for 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on 13 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petiti on for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Ru les of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 Contact informa tion for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	STRAND_KATHY_K_DE_3330_17_0063_I_1_FINAL_ORDER_2046660.pdf	2023-07-05	null	DE-3330	NP
2,939	https://www.mspb.gov/decisions/nonprecedential/PAYNE_JOSEPH_C_PH_3443_21_0363_I_1_FINAL_ORDER_2046684.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JOSEPH C. PAYNE, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER PH-3443 -21-0363 -I-1 DATE: July 5, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jermone Crosby , Richmond, Virginia, for the appellant. Greg Allan Ribreau , Esquire, St. Louis, Missouri, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) claim concerning his nonselection for a promotion as barred by the doctrine of laches. On petition for review, the appellant appears to challenge the merits of his nonselection, th e administrative judge’s dismissal of his 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 Veterans Employment Opportunities Act of 1998 (VEOA) claim during the course of the appeal, and the administrative judge’s dismissal of his USERRA claim . He also submits a number of documents on review.2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous 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 affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, 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 Many of the documents the appellant submitted are out of order, unclear, or have incoherent or illegible notes written across them. Petition for Review (PFR) File, Tabs 1-7. Some of these documents appear to have been submitted below, although some are submitted for the first time, including a newly filed complaint of judicial misconduct against the administrative judge, new Department of Labor ( DOL ) complaints on the same matter filed after the initial decision wa s issued, and new Equal Employment Opportunity complaints. PFR File, Tab 2 at 41, Tab 5 at 13 -16, Tab 6 at 18-20, Tab 2 at 40. None of these documents, however, provide a basis to disturb the initial decision because they are either not new or not materi al. See 5 C.F.R. § 1201.115 (d) (the Board may grant a petition for review if it contains new and material evidence). Some of the evidence is not new because it predates the initial dec ision, and it was either contained in the record below or lacks an explanation of why it was previously unavailable despite the appellant’s due diligence. See Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980) (explaining that evidence that is already a part of the record is not new); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) (holding that 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). Additionally, although some of the evidence is new, such as the complain t of judicial misconduct and new DOL complaints, this evidence is not material because the appellant has failed to provide any argument or explanation describing how it would alter the administrative judge’s conclusion to dismiss his USERRA claim as barred by the doctrine of laches and his VEOA claim as untimely . 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). 3 After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. The refore, we DENY the petition for review and AFFIRM the initial decision, which is now the Boar d’s final decision. 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 and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represen t a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case . If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is t he court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Fe deral Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any att orney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is ap pealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriat e U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this de cision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 5 race, color, religion, sex, national origin, or a d isabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 4 The original statutory provision that provi ded for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file pet itions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to Novem ber 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	PAYNE_JOSEPH_C_PH_3443_21_0363_I_1_FINAL_ORDER_2046684.pdf	2023-07-05	null	PH-3443	NP
2,940	https://www.mspb.gov/decisions/nonprecedential/ALABRE_DAMAS_J_AT_0752_22_0176_R_1_REMAND_ORDER_2046727.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DAMAS J. ALABRE, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency, and OFFICE OF PERSONNEL MANAGEMENT , Agenc y. DOCKET NUMBER S1 AT-0752 -22-0176 -R-1 AT-844E -22-0174 -R-1 DATE: July 5, 2023 THIS ORDER IS NONPRECEDENTIAL2 Damas J. Alabre , Saint Augustine, Florida, pro se. Lisa Zito , Miami, Florida, for the Department of Homeland Security . Sheba Dunnings Banks , Washington, D.C., for the Office of Personnel Management . 1 We join these two appeals because doing so will expedite case processing and will not adversely affect the interests of the parties. 5 C.F.R. § 1201.36 (b). The administrative judge ma y, on remand , sever the appeals and adjudicate them separately. 2 A nonprecedential ord er is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or disting uish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 BEFORE Cathy A. Harris, Vice Ch airman Raymond A. Limon, Member REMAND ORDER ¶1 For the reasons discussed below, we REOPEN on the Board’s own motion pursuant to 5 C.F.R. § 1201.118 the appeals of Alabre v. Departm ent of Homeland Security , MSPB Docket No. AT -0752 -22-0176 -I-1, and Alabre v. Office of Personnel Management , MSPB Docket No. AT -844E -22-0174 -I-1. We VACATE the Board’s January 27, 2023 Final Order in Alabre v. Department of Homeland Security , MSPB Docket No. AT -0752 -22-0176 -I-1, and the April 1, 2022 initial decision in Alabre v. Office of Personnel Management , MSPB Docket No. AT -844E -22-0174 -I-1, which became the Board’s final decision by operation of law . We REMAND the reopened appeals to the Atlanta Re gional Office for further adjudication. ¶2 After the issuance of the January 27, 2023 Final Order in Alabre v. Department of Homeland Security , MSPB Docket No. AT -0752 -22-0176 -I-1, it was discovered that the appellant’s email address was input incorrectly int o the Board’s case management system due to an internal clerical error and that , as a result, the appellant did not receive email notification of agency filings and Board issuances in his appeals. See 5 C.F.R. § 1201.14 (j)(1). The appellant was thus effectively denied the opportunity to prosecute his appeals. See McGuire v. U.S. Postal Service , 5 M.S.P.R. 54, 56 (1981) (finding that an administrative judge’s failure to serve an appellant with copies of requests for documentation denied the appellant the opportunity to timely pr osecute his appeal). Under these unusual circumstance s, we find it appropriate to reopen these appeals, vacate the Board’s final decisions, and remand the appeals for further adjudication. 5 C.F.R. §§ 1201.117 -.118. 3 ORDER ¶3 For the reasons disc ussed above, we remand these appeals to the Atlanta Regional Office . On remand, the administrative judge shall ensure that the appellant is being properly served with Board issuances and agency submissions in each appeal and shall afford the parties an opportunity to develop the record, hold a hearing if appropriate, and issue an initial decision addressing all relevant issues. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ALABRE_DAMAS_J_AT_0752_22_0176_R_1_REMAND_ORDER_2046727.pdf	2023-07-05	null	S1	NP
2,941	https://www.mspb.gov/decisions/nonprecedential/SEMERAD_JAMES_CH_0714_19_0146_I_1_FINAL_ORDER_2046778.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JAMES SEMERAD, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER CH-0714 -19-0146 -I-1 DATE: July 5, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Andrew Kim , Esquire, Atlanta, Georgia, for the appellant. Amy C. Slameka , Esquire, Detroit, Michigan, for the agency. BEFORE Cathy A. Harris, Vice Ch airman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has petitioned for review of the June 5, 2019 initial decision in this appeal. For the reasons set forth below, we DISMISS the appeal as settled. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c). 2 ¶2 After the filing of the petition for review, the parties submitted a document entitled “SETTLEMENT AGREEMENT ” signed and dated by the appellant on June 18, 2023, and by the agency on June 21, 2023 . Petition for Review (PFR) File, Tab 4 . The document provides, among other things, for the withdrawal of the appeal. Id. at 4. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agre ement, 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 part ies freely entered into it. See Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 10 -11 (2017 ). ¶4 Here, we find that the parties have entered into a settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforcement by the Board. PFR File , Tab 4 at 4 -8. Accordingly, we find that dismissing the appeal with prejudi ce 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. ¶5 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS If the agency or the appellant has not fully carried out the terms of the agreement, either party may ask the Board to enforce the settlement agreement by promptly filing a petition for enforcemen t with the office that issued the initial decision on this appeal. The petition should contain specific reasons why the 3 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 RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Fa ilure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order mus t file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be 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 not ice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Was hington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court ’s website, www.cafc.uscourts.gov. Of particular relevance is the court ’s “Guide for Pro Se Petitioners and Appellants, ” which is contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/pro bono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or i n part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federa l Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action inv olves a claim of discrimination based on 5 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other securi ty. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request f or review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petit ion for review “raises no challenge to the Board ’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D), ” then you may file a 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 decisi on. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following addre ss: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court ’s website, www.cafc.uscourts.gov. Of particular relevance is the court ’s “Guide for Pro Se Petitioners and Appellants, ” which is contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of App eals for the Federal Circuit, you may visit our 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 a ny court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services prov ided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SEMERAD_JAMES_CH_0714_19_0146_I_1_FINAL_ORDER_2046778.pdf	2023-07-05	null	CH-0714	NP
2,942	https://www.mspb.gov/decisions/nonprecedential/BETHA_SHAWNEEN_L_CH_0752_19_0116_I_2_FINAL_ORDER_2046781.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SHAWNEEN L. BETHA, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER CH-0752 -19-0116 -I-2 DATE: July 5, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Hartley D. Alley , Esquire, San Anto nio, Texas, for the appellant. Brian J. Odom , Esquire, Denver, Colorado, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 The agency has filed a petition for review and the appellant has filed a cross petition for review of the initial decision, which mitigated the appellant’s removal to a demotion. Generally, we grant petitions such as these only in the following 1 A nonprecedential order is one tha t the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board a nd administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 circumstances: the initial decision contains erroneous findings of material fact; the initial decisi on is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record c losed. Title 5 of the 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 estab lished 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). BACKGROUND ¶2 During the relevant time period, t he appellant was employed by the agency as the Hawkeye Dis trict Manager, a Postal Career Executive Service (PCES) , Level II position, in Des Moines, Iowa. Betha v. U.S. Postal Service , MSPB Docket No. CH -0752 -19-0116 -I-1, Initial Appeal File (IAF), Tab 25 at 4; Betha v. U.S. Postal Service , MSPB Docket No. CH -0752 -19-0116 -I-2, Appeal File (I -2 AF), Tab 6 at 4. By letter d ated June 29, 2018, the agency proposed the appellant’s removal based on two charges of unacceptable conduct: (1) purchase, possession, and distribution of a marijuana product ; and (2) unacceptable conduct. IAF, Tab 1 at 8 -13. In charge one, the agency asserted that on September 12, 2017, while attending a Western Area Senior Leadership Meeting in Denver, Colorado, the appellant and her subordinate employees entered a cann abis store where the appellant purchased a package of chewable gummies containing m arijuana. Id. at 8 -9. The agency further asserted that, after 3 purchasing the gummies, the appellant shared some of the gummies with other employees in the parking area and transported the remaining gummies in a Government -owned vehicle (GOV) from the res taurant to her hotel. Id. at 9. In the second cha rge, the agency maintained that, beginning in or around February 2017, the appellant brought her dog to work without ensuring appropriate approval and on numerous occasions asked or allowed subordinate emp loyees to care for the dog while on duty, including walking t he dog and watching the dog while the appellant was in meetings. Id. at 9-10. After affording the appellant an opportunity to respond, the agency issued a decision sustaining both charges and removing the appellant, effective November 30, 2018. Id. at 14 -17. ¶3 The appellant filed a Board appeal, disputing the charges and raising affirmative defenses of harmful procedural error and discrimination based on her disability, race , and gender. IAF, Ta b 1 at 6; I-2 AF , Tabs 7, 35. After the appellant withdrew her request for a hearing, I -2 AF, Tab 3, the administrative judge issued an initial decision based on the written record, I -2 AF, Tab 50 , Initial Decision (ID) . The administrative judge found th at the agency proved its charges, the appellant failed to prove any of her affirmative defenses ,2 mitigated the penalty to “a demotion to the level [she] held prior to her District Manager position, ” and ordered interim relief . ID at 5 -28. Regarding char ge one, the administrative judge found that the agency proved that the appellant pur chased 2 In particular, the administrative judge found that the appellant failed to prove her claim of harmful error based on the agency’s failure to warn employees that private purchase and possession of marijuana in a legal state was prohibited by Federal law and could lead to discipline. ID at 17-18. The administrative judge further found that the appellant faile d to prove that her disability, race, or sex w as a motivating factor in the agency’s decision to remove her. ID at 18 -23. The appellant does not dispute these findings on cross petition for review. Because we discern no error with the administrative judge’s motivating factor analysis or conclusion s rega rding th e appellant’s discrimination claims, we do not reach the question of whether discrimination was a “ but-for” cause of the removal action. See Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 20 -22, 29 -33. 4 the marijuana gummies, gave a gummy to at least one subordinate employee, and rode back to the hotel in the GOV after visiting the cannabis store. ID at 5 -10. Rega rding charge two, the administrative judge found that the agency failed to prove that the appellant lacked proper approval to bring her diabetic alert dog to work because the appellant had inquired about what wa s needed to bring her dog to work , had sent a certification for the dog to Labor Relations, and her request was subsequently approved by the agency’s District Reasonable Accommodation Committee prior to the issuance of the agency’s notice of proposed removal. ID at 11 -15. However, the administrativ e judge found that the agency proved that the appellant misused her position and postal resources by having subordinate employees watch her dog for her during work hours. ID at 15. ¶4 The agency has filed a petition for review, the appellant has filed a cros s petition for review, and the parties have filed responses. Petition for Review (PFR) File, Tabs 1 , 8-9, 11.3 DISCUSSION OF ARGUME NTS ON REVIEW We deny the appellant’s motion to dismiss the agency’ s petition for review for failure to compl y with the admi nistrative judge’ s interim relief order.4 ¶5 When, as here, the appellant was the prevailing party in the initial decision and interim relief was ordered, a petition for review filed by the agency must be 3 The agency has moved to dismiss the appellant’s cross petition for review as untimely filed. PFR File, Tab 11 at 6. We deny the agency’s motion because t he record reflects that the appellant timely filed her response to the agency’s petition for review and her cross pe tition for review on March 5, 20 20, PFR File, Tabs 8 -9, after requesting and receiving an extension of the filing deadline until March 9, 20 20, PFR File, Tabs 3 -4. 4 The appellant has moved to strike a portion of the agency’s response to her challenge regarding the agency’s interim relief certification a s an untimely supplement to the agency’s petition for review. PFR File, Tab 7 at 3. We d eny the appellant’s motion because the contested portion of the agency’s pleading amou nts to background facts that were also contained, almost verbatim, in the agency’s petition for review and the agency’s response does not present any new arguments, beyon d the interim relief issue, not contained in the agency’s petition for review. PFR File, Tab 6 at 4 -7. 5 accompanied by a certification that the agency has com plied with the interim relief order, either by providing the interim relief ordered, or by making a determination that returning the appellant to the place of employment would cause undue disruption to the work environment. Ayers v. Department of the Army , 123 M.S.P.R. 11 , ¶ 6 (2015); 5 C.F.R. § 1201.116 (a); see 5 U.S.C. § 7701 (b)(2)(A)(ii). ¶6 With its petition for review, the agency submitted evidence that it had assigned the appellant to a position as Postmaster in Saint Paul, Minnesota. PFR File, Tab 1 at 31. The appellant has filed a pleading in which she asserts that the agency has not complied with the interim relief order because the assignment is not within the local commuting area of Des Moines, Iowa , where she resides and where her prior duty sta tion was located . PFR File, Tab 5 at 4 -5. She further asserts that she was not timely notified of the assignment, she was directed to report to work in Saint Paul on short notice , and she was not informed concerning relocation costs or how her salary level was determined. Id. at 5-6. In reply, the agency asserts that the appellant’s assignment to the position of Postmaster of the Saint Paul, Minnesota Post Office complied with the interim relief order , which required the agency to assign the appellant t o a position at the level the appellant held immediately prior to her District Manager position. PFR File, Tab 6 at 8 -9; ID at 28 -30. ¶7 To the extent the appellant’s pleading seeks to enforce the interim relief order, the Board’ s regulations do not provide for petitions for enforcement of interim relief orders; such petitions apply only to final Board decisions. See Ayers , 123 M.S.P.R . 11, ¶ 7; 5 C.F.R. § 1201.182 (a). The Board’ s regulations, however, do allow an a ppellant to challenge an agency’ s certification that it has provided interim relief, and the Board ma y dismiss a petition for review if it finds the agency to be in noncompliance with its interim relief obligations. 5 C.F.R. § 1201.116 (b), (e). Here , however, we find tha t the agency’ s petition does not meet the criteria for review in any event, and the issuance of our final decision 6 renders moot an y dispute concerning the agency’ s compliance with the interim relief order. See Ayers , 123 M.S.P.R. 11 , ¶ 8 (re aching the same conclusion when the Board af firmed the administrative judge’ s reversal of the appellant’ s removal based on whistleblower reprisal). If the a ppellant believes that the agency is in noncompliance with the Board’ s final order, she may file a petition for enforcement in accordance with t he instructions provided below. The appellant’s cross petition for review fails to provide a basis to disturb th e initial decision. ¶8 In her cross petition for review, the appellant assert s that she is not challenging the initial decision on the merit s. PFR File, Tab 9 at 4. Nonetheless, she identifies two alleged erroneous findings by the administrative judge, whic h she contend s amount to due process violations, requiring reversal of the agency’s removal action. Id. In particular, the appellant asserts that the administrativ e judge erred in ruling that charge one included the transportation of marijuana and that t he agency proved that the appellant transported marijuana in a GOV . Id. We find such arguments unpersuasive. The appellant has not shown how the administrative judge’s r ulings amounted to a due process violation. See, e.g. , Stephen v. Department of the Air Force , 47 M.S.P.R. 672 , 681 (1991) (holding that an appealable agency action taken without affording an appellant prior notice of th e charges, an explanation of the agency’s evidence, and an opportunity to respond, must be reversed because such action violates his constitutional right to minimum due process under Cleveland Board of Education v. Loudermill , 470 U.S. 532 (1985 )). ¶9 Moreover, w e discern no error in the administrative judge’s determination that transportation of marijuana was part of the agency’s charge and that the agency proved that the appell ant transported marijuana in the GOV . ID at 9-10. The appellant’s challenges to the administrative judge’s characterization of the testimony of W.B., the driver of the GOV, on this issue are unpersuasive as the record reflects that W.B. did not clearly r ecall who rode in the GOV. PFR File, 7 Tab 9 at 7 -12; I-2 AF, Tab 13 at 29-30. Further, the administrative judge credited the testimony of S.L. and A.G. that the appellant rode back from the cannabis store to the hotel in the GOV with them. ID at 10; I-2 AF, Tab 42 at 4-6, 13 -14. Regardless, the administrative judge also found that , even if the appellant did not ride back to the hotel in the GOV , the agency proved the essence of its charge. ID at 10. ¶10 Finally, t o the extent the appellant is raising a due process violation based on the deciding official’s consideration of her transportation of marijuana, PFR File, Tab 9 at 5 -7, we find that such an argument was not timely raised, see Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (stating that the Board will not consider an argument raised for the first time in a petition for review absent a showing that it was based on new and materi al evidence not previously available despite the party’s due diligence). In any event, even if it were timely raised, the notice of proposed removal clearly referenced transportation of marijuana and the appellant’s written response addressed the issue. IAF, Tab 21 at 11, Tab 28 at 17. Thus , the deciding official did not consider any new and material information. See, e.g. , Solis v. Department of Justice , 117 M.S.P.R. 458 , ¶ 8 (2012) (explaining that only ex parte communications that introduce new and material information to the deciding official constitute due process violations). The administrative judge properly found that demotion was the maximum reasonable penalty. ¶11 When the Board sustains all of the agency’s charges , it may mitigate the agency’s penalty to the maximum reasonable penalty if it finds the agency’s original penalty to be too severe. Lachance v. Devall , 178 F.3d 1246 , 1260 (Fed. Cir. 1999). Nevertheless, the Board’s function is not to displace management’s responsibility or to decide what penalty it would impose, but to assure that manage ment’s judgment has been properly exercised and that the penalty selected does not exceed the maximum limits of reasonableness . Parker v. U.S. Postal 8 Service , 111 M.S.P.R. 510 , ¶ 9, aff’d, 355 F. App’x 410 (Fed. Cir. 2009) . Thus, the Board will modify a penalty only when it finds that the agency failed to weigh the relevant factors or that the penalty imposed clearly exceeded the bo unds of reasonableness. Id. If the agency’s penalty is beyond the bounds of reasonableness, the Board will mitigate it only as necessary to bring it within the parameters of reasonableness. Id. ¶12 Here, although the administrative judge found that the agen cy proved the essence of its charges, she found that the penalty of removal exceed ed the bounds of reasonableness and that demotion was the maximum reasonable penalty. ID at 23-28. Regarding the agency’s charge of “unacceptable conduct : purchase, posses sion, and distribution of a marijuana product ,” the administrative judge found that the strong language of the charge overstated the magnitude of some of the appellant’s misconduct . ID at 25. She further found that the facts established that the appellan t, on one occasion , purchased a pack age of marijuana gummies in a legal state to treat her sciatic pain with no evidence that the appellant actually consumed them and she shared the gummies with employees off-duty . ID at 25-26. Regarding the agency’s sec ond unacceptable conduct charge, the administrative judge found that charge two was the minor charge and acknowledged that part of the charge was not sustained. ID at 25. She also noted that the appellant no longer needed the services of a diabetic alert dog. Id. ¶13 On review, the agency argues that the administrative judge erred in mitigating the removal penalty to a demotion and, in doing so, improperly relied on case law that was not factually similar to the instant appeal. PFR File, Tab 1 at 23-29. We find that the administrative judge appropriately considered relevant case law in conducting her penalty analysis an d we agree wit h the administrative judge that demotion is the maximum reasonable penalty under the circumstances of this appeal. ¶14 Like the ad ministrative judge, we acknowledge the seriousness of the appellant’s misconduct under charge one . ID at 25. However , the appellant’s 9 single lapse in judgment in purchasing the gummies , which although legal under Colorado state law re mains illegal under Federal law, did not result in arrest or conviction of any crime. Further, this lapse in judgment was an isolated incident in the appellant’s otherwise very succ essful 33-year career with no prior discipline. IAF, Tab 21 at 5. There is also no evidence that the appellant consumed the gummies or that she otherwise engaged in drug use that affected her ability to perform her job duties. We are also cognizant of the lack of clarity with which the appellant may have been on notice concerning the implication s of purchasing marijuana in a state in which it is legal to do so . ID at 26; I -2 AF, Tab 28 at 13 -16. Indeed, the record reflects that, during the same conference in Denver, Colorado, another EAS -22 Customer Service M anager also purchased and used an oi ntment containing cannabis oil (THC). IAF, Tab 21 at 8 ; I-2 AF, Tab 6 at 5, Tab 44 at 18 -22. For her misconduct in purchasing and using an illegal substance, the agency issued her a letter of warnin g in lieu of 14 -day suspension. I-2 AF, Tab 44 at 18 -19. ¶15 Nonetheless, the appellant held a position of particular prominence as the Hawkeye District Manager , the highest -level position in the district, in which she was subject to a higher standard of conduct. See Martin v. Department of Transportation , 103 M.S.P.R. 153 , ¶ 13 (2006) (noting that a gencies are entitled to hold supervisors to a highe r standard of conduct than nons upervis ors because they occupy positions of t rust and responsibility), aff’d , 224 F. App’x 974 (Fed. Cir. 2007). T hus, we agree with the administrative judge that, although the Board has mitigated removals to suspensions based on marijuana possession , use, and/o r attempted sale, ID at 25 , 28 , demotion is the maximum reasonable penalty considering the appellant’s possession and “distribution” to coworkers as well as her position and supervisory status, see, e.g., Kruger v. Department of Justice , 32 M.S.P.R. 71, 76 -77 (1987) ( mitig ating the removal of a law enforcement officer, who was similarly subject to a higher standard of conduct , to a 60 -day 10 suspension for off -duty marijuana possession , which directly related to the agency’s mission ).5 ¶16 Finally, we reject the agency’s argument that the Board’s decision in Bruhn v. Department of Agriculture , 124 M.S.P.R. 1 (2016) , compel s a finding that removal was reasonable under the circumstances of this appeal. PFR File, Tab 1 at 27-28. As the administrative judge found , Bruhn involved a removal pursuant to a last chance agreement based on the appellant’s second offense of growing medical marijuana o n the appellant’s personal property in California . ID at 27-28. The appellant served a 45 -day suspension for his first offense of growing medical marijuana and was removed for violating the last chanc e agreement after local law enforcement discovered mar ijuana plants growing in the appellant’s garage on a second occasion. Id.; see Bruhn , 124 M.S.P.R. 1 , ¶¶ 2-4, 16. Thus, we find t hat the administrative judge appropriately considered but found Bruhn distinguishable. ¶17 Accordingly, we affirm the initial decision, mitigating the appellant’s removal to a demotion. ORDER ¶18 We ORDER the agency to c ancel the appellant’ s removal and substi tute in its place a demotion to the level the appellant held prior to her District Manager position, effective November 30, 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. 5 We find unavailing the agency’s argument that the cases cited by the administrative judge in which the Board mitigated removals to suspensions were no t factually similar because none involved marijuana possession and distribution by an executive level employee to subordinate employees. PFR File, Tab 1 at 26 -29. The administrative judge acknowledged , as does the Board , the different factual circumstanc es in determining that a demotion, not a suspension was the maximum reasonable penalty. 11 ¶19 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Bac k Pay Act and/or Postal Service regulations, as appropriate, 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 benef its 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. ¶20 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Boar d’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶21 No later than 30 days after the agency tells the appellant that it h as 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). ¶22 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentatio n 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 a ccordance with the attached lists so that payment can be made within the 60 -day period set forth above. 12 NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorn ey 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 co sts with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIGHTS6 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal o f your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the no tice, the Board cannot advise which option is most appropriate in any matter. 13 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeal s for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems P rotection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain 14 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Loc ator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representat ive in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U. S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 15 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signatu re, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This opt ion applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Cou rt of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisd iction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of A ppeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, a nd 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Syst ems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following docu mentation 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 ma y 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 perio d 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 awar d, 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/correct ed 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 employ ee 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 employe e. 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 CEN TER CHECKLIST FOR BA CK 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 (Tabl e 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/change s 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/Pe rsonnel Operations at 504 -255-4630.	BETHA_SHAWNEEN_L_CH_0752_19_0116_I_2_FINAL_ORDER_2046781.pdf	2023-07-05	null	CH-0752	NP
2,943	https://www.mspb.gov/decisions/nonprecedential/MORLIER_LOUIS_PH_844E_20_0226_I_1_FINAL_ORDER_2046784.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LOUIS MORLIER, III, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER PH-844E -20-0226 -I-1 Date: July 5, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Robert R. McGill , Esquire, Walkersville, Maryland, for the appellant. Albert Pete Alston, Jr. , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Ch airman Raymond A. Limon, Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which reversed its decision denying the appellant disability retirement benefits . On petition for review, the agency challenges the administrative judge’s findings and conclusions , arguin g that the appellant is not entitled to disability retirement 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 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 o n an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required pro cedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting 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 We ORDER the Office of Personnel Management (OPM) to grant the appellant disability retirement benefits. OPM must complete this action no later than 20 days after the date of this decision. ¶3 We also ORDER OPM to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. We ORDER the appellant to provide all necessary information OPM requests to help it c arry out the Board’s Order. The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b). ¶4 No later than 30 days after OPM tells the appellant it has fu lly carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that OPM did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes OPM has not fully carried out the Board’s Order, and should include the dates and results of any communications with OPM. See 5 C.F.R. § 1201 .182 (a). 3 NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIG HTS2 You m ay obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to fil e. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable t o your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of re view 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. 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 partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain 5 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representati ve receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, nati onal origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess 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.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 The original statutory provision that provided for judicial review of certain whistleblower claims b y any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain w histleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular releva nce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals fo r the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MORLIER_LOUIS_PH_844E_20_0226_I_1_FINAL_ORDER_2046784.pdf	2023-07-05	null	PH-844E	NP
2,944	https://www.mspb.gov/decisions/nonprecedential/SMITH_ROBERT_L_CH_0731_16_0176_I_1_FINAL_ORDER_2046873.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ROBERT L. SMITH, SR , Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER CH-0731 -16-0176 -I-1 DATE: July 5, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Robert L. Smith, Sr. , Copley , Ohio, pro se. Darlene M. Carr , 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 affirmed the negative suitability determination and associated actions of the Office of Personnel Management (OPM). Generally, we grant petitions such as this one only in the following circumstances: the initial decision co ntains 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion an d Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the p etitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting 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 On petition for review, the appellant argues that OPM failed to prove that he was unsuitable for the position in ques tion. Petition for Review (PFR) File, Tab 1 at 4-9. He has attached numerous exhibits in support of his petition. PFR File, Tab 1 at 10 -125, Tab 2 at 4 -19. All of these exhibits appear to pre -date the close of the record, and many, if not all, were sub mitted into the record below. See, e.g. , Initial Appeal File, Tab 1 at 26 -42, Tab 2 at 7-12, Tab 4 at 4 -13, 17 -22, Tab 11 at 34 -49, 93 -103, Tab 14 at 65. To the extent that the appellant has submitted evidence on review that was not a part of the record below, we find that he has not shown that it was previously unavailable despite his due diligence, and we decline to consider it.2 See Bowman v. Small Business Administration , 2 After the record closed on review, the appellant filed a motion requesting leave to submit “additional documents” in support of his claim. PFR File, Tab 16 at 3. He offers no description of these documents and only asserts in conclusory fashion that they became available after his petition for review was filed. Id. Because the appellant has not shown that the documents were not readily available before the record closed on review despite his due diligence and that the documents are of sufficient weight to warrant a different outcome, we deny his request. See Ellis v. Department of the Navy , 117 M.S.P.R. 511 , ¶ 12 (2012); 5 C.F.R. § 1201.114 (k). 3 122 M.S.P.R. 217 , ¶ 7 n.4 (2015); 5 C.F.R. § 1201.115 (d). For the reasons set forth in the initial decision, we affirm OPM’s negative suit ability determination and associated actions.3 NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the t ime limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protectio n Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek revi ew of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chos en forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should co ntact that forum for more information. 3 The National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114 -92, § 1086(h ), 129 Stat. 726, 1010 (2015), amended 5 U.S.C. § 7512 to state tha t chapter 75 of title 5 of the U.S. Code “does not a pply to . . . a suitability action taken by [OPM] under regulations prescribed by [OPM], subject to the rules prescribed by the President under [tit le 5] for the administration of the competitive service.” 5 U.S.C. § 7512 (F). Accordingly, the Board’s jurisdiction over a negative suitability determination is limited to that provided under 5 C.F.R. § 731.501 , which does not extend to reviewing or modifying the ultimate action taken as a result of a suitability determination. Odoh v. Office of Personnel Management , 2022 MSPB 5, ¶ 16. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights include d 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. 2043 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 t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prote ction Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 5 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in t his case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator /CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail , the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If 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 app lies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 appea ls must 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 Appe als for the Federal Circuit, you must submit your petition to 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 compe tent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases wit h the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 Protec tion Board appellants before the 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 t heir respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SMITH_ROBERT_L_CH_0731_16_0176_I_1_FINAL_ORDER_2046873.pdf	2023-07-05	null	CH-0731	NP
2,945	https://www.mspb.gov/decisions/nonprecedential/SCHWEGEL_KERRI_R_CH_0714_19_0403_I_1_FINAL_ORDER_2046291.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KERRI R. SCHWEGEL, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER CH-0714 -19-0403 -I-1 DATE: July 3, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Justin D. Cummins , Esquire, Minneapolis, Minnesota, for the appellant. Pamela R. Saunders , Esquire, Minneapolis, Minnesota, for the agency. BEFORE Cathy A. Harris, Vice Chair man Raymond A. Limon, Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which reversed the appellant ’s removal. On petition for review, the agency argues that the administrative judge misapplied the substantial evidence standard . The agency also argues that the administrative judge abused her discretion when she 1 A nonprecedential order is one that the Board has deter mined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 refused to allow testimony concerning the appellant ’s prior discipline and counseling. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contai ns erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge ’s rulings during either the course of t he appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petit ioner ’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that 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 make no determination as to the propri ety of the administrative judge ’s order of interim relief ,2 we AFFIRM the initial decision. ¶2 The agency argues on review that the administrative judge misapplied the substantial evidence standard when she selected one reason able alternative over another . Petition for Review (PFR) File, Tab 1 at 10 -11. We disagree. Substantial evidence is the 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 reaso nable persons might disagree. 5 C.F.R. § 1201.4 (p). The administrative judge held a hearing and found that a reasonable person, considering the record as a whole, would not find that the appellant engaged in inappropriate conduct as the agency had charged . Initial Appeal File (IAF), Tab 29, Initial Decision at 8. Thus, based on the testimony before her, she determined that the agency ’s evidence was not adequate to support a conclusion 2 We need not reach this issue because, by issuance of this Order, the appellant is afforded full relief. 3 that the appellant engaged in inappropriate conduct. Id.; see In re Kahn , 441 F.3d 977, 985 (Fed. Cir 2006) (observing that substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion); 5 C.F.R. § 1201.4 (p). The Board must give deference to an administrative judge ’s credi bility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound ” reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) . The agency ’s argument s on review do not show that the administrative judge err ed in finding that a reasonable person could not, under the circumstances presented, find that the appellant engaged in inappropriate conduct.3 ¶3 The agency also argues tha t the administrative judge abused her discretion by refusing to allow testimony conc erning the appellant ’s prior discipline and counseling. PFR File, Tab 1 at 16. In the prehearing conference summary that set forth restrictions on testimony of the agency ’s witnesses, the administrative judge gave the parties 7 days to notify her if the prehearing conference summary was incorrect, and she informed the parties that, if they failed to timely do so, they would be bound by the issues and rulings therein. IAF, Tab 23 at 6. The agency did not respond, and its failure to do so precludes its do ing so on review. Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579 , 581 (1988) (finding that a party ’s failure to timely object to ruling s on witnesses precludes their doing so on petition for review) . 3 The agency’s argument that it possesses the sole authority to decide whether an employee’s conduct warrants discipline , PFR File, Tab 1 at 12-13, overlooks the statutory provisions providing that an administrative judge and the Board should uphold the agency’s decision, if the decision is supported by substantial evidence , 38 U.S.C. § 714(d)(2)( A), (d)(3)(B). In other words, although it set a low burden of proof for the agency to meet, Congress clearly envisioned a role for the Board and its administrative judge in reviewing agency actions. There is no support for the agency’s position tha t it possesses the sole authority to decide whether discipline is warranted . 4 ¶4 Moreover, the appellant ’s prior discipline and counseling are not admissible to prove the merits of the charge because the agency may not rely on prior conduct to establish that the appella nt engaged in the same conduct in the incident at issue. See Young v. Department of Housing and Urban Development , 706 F.3d 1372 , 1378 -79 (Fed. Cir. 2013) (observing that reliance on prior conduct to prove whether an individual engaged in the same conduct on another occasion is inappropriate ); Ibrahim v. Department of the Army , 30 M.S.P.R. 531 , 536 (1986) (finding that under the guidance of Federal Rule of Evidence 404(a ), character evidence may not be introduced circumstantially to prove the conduct of the witness ).4 Thus, the administrative judge did not abuse her discretion in limiting the testimony of the agency ’s witnesses to the incident at issue in the appeal. ORDER ¶5 We ORDER the agency to cancel the removal and to restore the appellant effective June 10, 2019. See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶6 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Perso nnel 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 ne cessary 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 calend ar days after the date of this decision. 4 Although the Federal Rules of Evidence do not apply to Board proceedings, the Board may look to them for guidance. Hayden v. U.S. Postal Service , 15 M.S.P.R. 296 , 302 (1983), aff’d, 758 F.2d 668 (Fed. Cir. 1984) (Table). 5 ¶7 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board ’s Order and of the actions it has taken to carry out the Board ’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶8 No later than 30 days after the agency tells the appellant that it has fully carried out the Board ’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that the agency did not fully carry out the Board ’s Order. The petition should contain specific reasons wh y 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). ¶9 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board ’s decision in accordance with the attached list s so that payment can be made within the 60 -day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, y ou 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 , 120 1.202, 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. 6 You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIGHTS5 The initial decision, as supplemented by this Final Order, constitutes the 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 summar y of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time li mit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 5 Since the issuance of the initial decision in this matter, the Board may have updated the no tice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono re presentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 8 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, exclud ing all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your represent ative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 9 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 is suance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court a t the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscour ts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whi stleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 Board neither endo rses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 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. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20 Pay%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 noti fied 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 ea rnings 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 l ater 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 fr om 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 CEN TER CHECKLIST FOR BA CK 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 s ubmit 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 Sev erance 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 Rest oration 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.	SCHWEGEL_KERRI_R_CH_0714_19_0403_I_1_FINAL_ORDER_2046291.pdf	2023-07-03	null	CH-0714	NP
2,946	https://www.mspb.gov/decisions/nonprecedential/BAAR_BERNARDUS_DA_0714_18_0504_I_1_FINAL_ORDER_2046313.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BERNARDUS BAAR, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DA-0714 -18-0504 -I-1 DATE: July 3, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michelle F. Bercovici , Esquire , and Madison Kewin , Esquire, Washington, D.C., for the appellant. Chau Phan , Esquire, Salt Lake City, Utah, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has petitioned for review of the December 4, 2018 initial decision in this appeal. Initial Appeal File, Tab 24, Initial Decision; Petition for Review (PFR) File, Tab 3. For the reasons set forth below, we DISMISS the appeal as settled. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 ¶2 After the appellant f iled his petition for review, the parties submitted a document entitled “SETTLEMENT AND COMPROMISE AGREEMENT” signed and dated by the appellant on May 1, 2023, and by the agency on May 8, 2023. PFR File, Tab 8. The document provides, among other things, for the withdrawal of the above -captioned appeal in exchange for certain promises made by the agency, and the parties have further agreed for the agreement to be entered into the record for enforcement purposes . Id. at 4-5. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board . See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146 , 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it. See Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 1 0-11 (2017) . ¶4 Here, we find that the parties have entered into a settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enfor cement by the Board. PFR File, Tab 8 at 3, 5. Accordingly, we find that dismissing the appeal with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropriate under the circumstances. In addition, we find that the agreem ent is lawful on its face and freely entered into, and we accept the settlement agreement into the record for enforcement purposes. ¶5 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulatio ns, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS If the agency or the appellant has not fully carried out the terms of the agreement, either party may ask the Board to enforce the settlement agreement by 3 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). NOTIC E 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 appropriat e forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which optio n is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately re view the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three ma in possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order 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 mos t 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.uscou rts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal t o the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither end orses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by fi ling a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file 5 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEO C via commercial delivery or by a method requiring a signature, 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 protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited p ersonnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or a ny 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 b y the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of c ompetent 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/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BAAR_BERNARDUS_DA_0714_18_0504_I_1_FINAL_ORDER_2046313.pdf	2023-07-03	null	DA-0714	NP
2,947	https://www.mspb.gov/decisions/nonprecedential/JANSEN_ROGER_H_PH_0714_20_0468_I_1_FINAL_ORDER_2046359.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ROGER H. JANSEN, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER PH-0714 -20-0468 -I-1 DATE: July 3, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Roger H. Jansen , New Haven, Connecticut, pro se. Paul V. Usera , Esquire, Bedford, Massachusetts, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A . Limon, Member FINAL ORDER ¶1 The appellant has petitioned for review of the initial decision in this appeal. Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the appeal as settled. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 ¶2 After the filing of the petition for review, the parties submitted a document entitled “SETTLEMENT AGREEMENT ,” with an effective date of March 9, 2023. PFR File, Tab 5 at 7 -9. The document provides, among other things, for the withdrawal of the appeal. Id. at 7. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board . See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146, 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it . See Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 10 -11 (2017 ). ¶4 Here, we find that the parties have entered into a settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforcement by the Board. PFR File, Tab 5 at 8. Accordingly, we find that dismissing the appeal with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances. In addition, we find that the agreement is lawful on its face and freely entered into, and we accept the settlement agreement into the record fo r enforcement purposes. ¶5 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201. 113). NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS If the agency or the appellant has not fully carried out the terms of the agreement, either party may ask the Board to enforce the settlement agreement by promptly filing a petition for enforcement with the office that issued the initial decision on this appeal. The petition should contain specific reasons why the petitioning party believes that the terms of the settlement agreement have not 3 been fully carried out, and should include the dates and r esults of any communications between the parties. 5 C.F.R. § 1201.182 (a). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of ho w courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Fail ure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have qu estions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washi ngton, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calend ar days after your representative receives this decision. If the action involves a claim of discrimination based on 5 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer an d to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no c hallenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial revie w 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 origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	JANSEN_ROGER_H_PH_0714_20_0468_I_1_FINAL_ORDER_2046359.pdf	2023-07-03	null	PH-0714	NP
2,948	https://www.mspb.gov/decisions/nonprecedential/RATEKIN_WILLIAM_A_DE_0714_18_0189_C_1_FINAL_ORDER_2045653.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD WILLIAM A. RATEKIN, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DE-0714 -18-0189 -C-1 DATE: June 30, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Raymond R. Aranza , Esquire, Omaha, Nebraska, for the appellant. Michael E. Anfang , Esquire, Kansas City, Missouri, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a compliance petition for review of the initial decis ion, which dismissed his petition for enforcement as untimely filed without good cause shown . Compliance Petition for Review ( CPFR) File, Tab 1. For the reasons set forth below, we DISMISS the appeal as settled. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 ¶2 While the petition for review was pending, the parties submitted a copy of a settlement agreement, signed and dated by the appellant on April 2, 2023, and by the agency on April 5, 2023. CPFR File, Ta b 5 at 4 -6. The agreement provides for the withdrawal of the appeal in exchange for certain prom ises made by the agency, and the parties have further agreed for the agreement to be entered into the record for enforcement purposes. Id. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board . See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146 , 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it. See Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 10 -11 (2017). ¶4 Here, we find that the parties have entered into the settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enf orcement by the Board. We further find that the agreement is lawful on its face and that the parties freely entered into it. Accordingly, we find it appropriate to dismiss the appeal with prejudice to refiling (i.e., the parties normally may not refile t his appeal) and enter the agreement into the r ecord for enforcement purposes. ¶5 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, sectio n 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE TO THE PARTIE S 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 agreem ent by promptly filing a petition for enforcement with the office that issued the initial 3 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 ful ly 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 RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failu re to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have quest ions about whether a particular forum is the appropriate one to review your case, you should contact th at forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be 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 mos t appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov /probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Fe deral Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, 5 color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for rev iew to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhan cement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice describe d in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 fo r judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional info rmation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 b y the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	RATEKIN_WILLIAM_A_DE_0714_18_0189_C_1_FINAL_ORDER_2045653.pdf	2023-06-30	null	DE-0714	NP
2,949	https://www.mspb.gov/decisions/nonprecedential/SMITH_ALEXANDER_M_DC_1221_17_0664_W_1_FINAL_ORDER_2045660.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ALEXANDER M. SMITH, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency. DOCKET NUMBER DC-1221 -17-0664 -W-1 DATE: June 30, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Alexander M. Smith , Washington, D.C., pro se. Vinayak S. Nain , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed 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; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges ar e not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 the initial decision is based on an e rroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedure s or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basi s under section 1201.115 for granting 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 ¶2 Effective March 6, 2016, the agency appointed t he appellant to the competitive -service position of GS-13 Senior Policy Advisor in the Family and Youth Services Bureau (FYSB), subject to a 1 -year initial probationary period. Initial Appeal File (IAF), Tab 6 at 30. Effective December 2, 2016, the agency terminated the appellant for postappointment reaso ns. Id. at 22 -25. After filing a whistleblowing complaint with the Office of Special Counsel (OSC), and receiving OSC’s closeout letter, the appellant filed the instant IRA appeal with the Board challenging his termination. IAF, Tab 1 at 4 -5, 8. ¶3 The adm inistrative judge issued an order, informing the appellant of the standard for establishing jurisdiction over an IRA appeal and directing him to file a statement detailing the elements of his claim, including a list of each protected disclosure that he was asserting and why he believed that each disclosure was a contributing factor in a claimed personnel action. IAF, Tab 3. The appellant did not respond to the order. After the record on jurisdiction closed, the administrative judge issued an initial deci sion dismissing the appeal for lack of 3 jurisdiction. IAF, Tab 7, Initial Decision (ID). She found that the appellant failed to make a nonfrivolous allegation that he mad e a protected disclosure, ID at 6-8, and that the appellant failed to exhaust his adm inistrative remedies before OSC, ID at 8 -12. The appellant has filed a petition for review disputing the initial decision, and submitting additional documentary evidence. Petition for Review (PFR) File, Tab 1. The agency has not filed a response. ANALYS IS ¶4 The Board has jurisdiction over an IRA appeal if the appellant exhausts his administrative remedies before OSC and makes non frivolous allegations that (1) he 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)(2)(A) . Linder v. Department of Justice , 122 M.S.P.R. 14 , ¶ 6 (2014). ¶5 On review, the appellant argues that the administrative judge denied him his right to a hearing, and he submits additional evidence that he claims he did not submi t below because it can only be understood in the context of hearing testimony. PFR File, Tab 1 at 3 -4, 17 -33. We have reviewed this newly -submitted evidence, and we find that the appellant has not shown that it is either new or material. See Okello v. Office of Personnel Management , 112 M.S.P.R. 563 , ¶ 10 (2009) (stating that the Board will not consider evidence submitted for the first time with a petition for review absent a showing t hat it is both new and material ); 5 C.F.R. § 1201.115 (d). All of the evid ence predates the initial decision , and the appellant appears to acknowledge that he had it in his possession before the initial decision was issued. PFR File, Tab 1 at 4, 17 -33; see Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). Although the appellant states that he was waiting to submit this evidence at a hearing , the administrative judge explicitly informed him that he must establish jurisdiction 4 on the written record and that he would not receive a hearing unless he did so. IAF, Tab 3 at 7 -8; see Spencer v. Department of the Navy , 327 F.3d 1354 , 1356 (Fed. Cir. 2003) (finding that a n appellant is entitled to a hearing in an IRA appeal only if he establishes jurisdiction over his appeal ); Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434 , ¶ 22 (2016) (same). Rather than waiting for a hearing, t he appellant could have explained the impor t of this evidence in the jurisdictional brief that he was ordered to file but did not do so . Nor does any of this evidence appear to warrant a different outcome from that of the initial decision . See Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980). ¶6 Much of the petition for review consists of a verbatim replication of the appellant’s initial appeal submission, which was his only other filing in this appeal. PFR File, Tab 1 at 7 -11, 14 -16; IAF, Tab 1 at 9 -15. To this extent, we find that the appellant is merely registering his disagreement with the initial decision . See Weaver v. Department of the Navy , 2 M.S.P.R. 129 , 133 -34 (1980). Nevertheless, in light of the jurisdictional nature of the issues, we have reviewed the administrative judge ’s findings. See Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313 , ¶ 5 (2010) (recognizing that t he issue of jurisdiction is always befor e the Board and may be raised at any time during a Board proceeding ). ¶7 We agree with the administrative judge that the appellant appears to be arguing that he made two protected disclosures —the first concerning FYSB ’s lack of “ adequate knowledge in the area s of family planning, education, and parenting/perinatal health services for homeless youth,” and the second concerning FYSB ’s lack of “ proper guidance and s tandards around ‘evidence -based’ programs and [need] to improve Title V programs, ensuring they are trauma -informed, evidence -based, and medically accurate .”2 IAF, Tab 1 2 “Title V ” refers to Title V of the Social Security Act of 1935, Pub. L. No. 74 -271, 49 Stat. 620, 629 -34 (codified as amended at 42 U.S.C. chapter 7, subchapter V). The 5 at 10; ID at 6 -7. However, we also agree with the administrative judge that the appellant failed to make a nonfrivolous allegation that either of these disclosures was protected. ID at 6 -8, 10 -11. A protected disclosure under 5 U.S.C. § 2302 (b)(8) is a disclosure of information that an employee reasonably believes evidences any violation of any law, rule, or regulation, or gr oss mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. Armstrong v. Department of Justice , 107 M.S.P.R. 375, ¶ 16 (2007) , overruled on other grounds by Edwards v. Department of Labor , 2022 MSPB 9 . As the administrative judge correctly found, the appellant failed to make a nonfrivolous allegation that his disclosures meet this standard. The appellant ’s disclosures, as he describes them, contain at most vague and conclusory allegation s of wrongdoing that are not covered under the Whistleblower Protection Act (WPA). ID at 7 -8; see Rzucidlo v. Department of the Army , 101 M.S.P.R. 616 , ¶ 17 (2006); Mc Corcle v. Department of Agriculture , 98 M.S.P.R. 363 , ¶ 21 (2005). ¶8 Furthermore, it appears to us that the appellant ’s disclosures are essentially policy disputes that reflect his own ideas for reforming the agency ’s grant programs, IAF, Tab 1 at 10 -13, but t he Board has found that the WPA is not meant to be used as a weapon in arguments over policy , O’Donnell v. Department of Agriculture , 120 M.S.P.R. 94 , ¶ 14 (2013) , aff’d , 561 F. App’x 926 (Fed. Cir. 2014) . For example, the appellant believed that the agency should provide further guidance to grant applicants on how to show that their education programs are “medically accurate” and their research is “evidence based,” as required by 42 U.S.C. § 710(b)(2), (5). IAF, Tab 1 at 5, 9 -12. He also recommended that the agency expand its knowledge base by conducting additional research or a literature review on “the unmet needs of runaway and homeless youth in the areas of family planning, education, and paren ting/perinatal health services .” Id. at 10, Title V programs at issue here appear to be the “sexual risk avoidance education” programs authorized under 42 U.S.C. § 710. 6 12. However, even if the appellant reasonably believed that these measures would be efficacious, we find nothing to indicate that he reasonably believed that the agency was committing gross mismanagement by not adopting them. IAF, Tab 1 at 12; see Johnson v. Department of Justice , 104 M.S.P.R. 624 , ¶ 16 (2007) (indicating that g ross mis management does not include management deci sions that are merely debatable ). ¶9 Nor has the appellant made a nonfrivolous allegation that he reasonably believed his disclosures evidenced a gross waste of funds. Although the appellant believes that the agency ’s $75 million grant programs would benefit from additional research and guidance, IAF, Tab 1 at 12 -13, his disclosures were about how these programs were being administered —not about their cost, see Embree v. Department of the Treasury , 70 M.S.P.R. 79 , 85 (1996) . ¶10 Nor has the appellant made a nonfrivolous allegation that he reasonably believed his disclosures evidenced a subs tantial and specific danger to public health and safety. The appellant asserts that, absent his p roposed measures, the Title V grant programs “ may be completely ineffective, or even harmful to specific youth populations .” IAF, Tab 1 at 5, 9 -12. However, the appellant has not identified the “specific danger” that he is concerned about. His speculation that some unnamed harm may befall targeted youth populations through some unnamed mechanism if his suggestions are not adopted does not amount to a disclos ure of a substantial and specific danger to public health and safety. See Schoenig v. Department of Justice , 120 M.S.P.R. 318 , ¶ 10 (2013) . ¶11 Finally, the appellant has not made a nonfrivolous allegation that he reasonably believed that his disclosures evidenced an abuse of authority.3 The appellant alleges that various agency officials abused their authority in several respects, but he does not argue that these alleged abuses of authority were the subject of any disclosures. IAF, Tab 1 at 13; PFR File, Tab 1 at 5, 11-14. 3 The appellant does not argue that his disclosures evidenced a violation of any law, rule, or regulation, nor do we see any indication that they might have. 7 Rather, it appears that he is intending to show that these officials had retaliatory motive and that the stated reasons for terminating him were pretextual. These matters have no bearing on the jurisdictional issue but instead go to the merits of the case and the agency ’s affirmat ive defense . See generally Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999). We find the appellant ’s allegations i n this regard to be immaterial because the Board must first address the matter of jurisdiction before proceeding to the merits of the appeal. Schmittling v. Department of the Army , 219 F.3d 1332 , 1336 -37 (Fed. Cir. 2000). ¶12 The appellant also challenges the administrative judge ’s finding that he failed to exhaust his administrative remedies before the OSC because his complaint lacked sufficient d etail to give OSC an adequate basis to pursue an investigation. PFR File, Tab 1 at 3; ID at 8 -12. However, in light of the analysis above, we find it unnecessary to reach this issue and we decline to do so. Because the appellant has not made a nonfrivol ous allegation that he engaged in activity protected under 5 U.S.C. § 2302 (b)(8) or (b)(9)(A)(i), B, C, or D, we agree with the administrative judge that the Board lacks jurisdiction over this appeal, and we affirm the initial decision on that basis.4 See Layton v. Department of the Army , 112 M.S.P.R. 549 , ¶ 17 (2009) , aff’d , 392 F. App’x 875 (Fed. Cir. 2010) . NOTICE OF APPEAL RIGHTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of yo ur claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). 4 We have reviewed the relevant legislation enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. 5 Since the issu ance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 Although we offer the following summary of available appeal rights, t he Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to revie w your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 9 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the 10 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review t o the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursua nt to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a pro hibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Cir cuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your 6 The original statutory p rovision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on 11 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)( B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washing ton, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probon o for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a g iven case. July 7, 2018, permanently allows app ellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is r etroactive 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_L ocator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SMITH_ALEXANDER_M_DC_1221_17_0664_W_1_FINAL_ORDER_2045660.pdf	2023-06-30	null	DC-1221	NP
2,950	https://www.mspb.gov/decisions/nonprecedential/SMITH_JUSTIN_P_PH_0752_17_0139_I_1_FINAL_ORDER_2045772.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JUSTIN P. SMITH, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER PH-0752 -17-0139 -I-1 DATE: June 30, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kristyn M. Houchen , Esquire, Ventura, California, for the appellant. Shelly S. Glenn , Baltimore, Maryland, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed the appeal of his removal for lack of jurisdiction , as he failed to demonstrate that the waiver of Board appeal rights in the last chance agreement (LCA) that he entered into with the agency should not be enforced. 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 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 grant petitions such as t his one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of t he case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting 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 ¶2 In January 2015, the agency proposed to remove the appellant from the Federal service due to conduct unbecoming, loafing while on duty, and lack of candor. Initial Appeal File (IAF), Tab 5 at 53 -55. On May 1, 2015, the appellant voluntarily entered into an LCA with the agency wherein he admitted to the charges of misconduc t in the proposal and agreed that his removal was the traditional penalty for his misconduct. Id. at 51 -52. Through the LCA, the agency agreed to hold the decision to remove the appellant in abeyance in exchange for him not engaging in any act of sustain ed misconduct over a 2 -year period from the May 1, 2015 effective date of the agreement. Id. In the event that the appellant violated the LCA by committing an act of sustained misconduct and the agency issued the removal decision held in abeyance, the ap pellant agreed to waive his rights to appeal such a removal to the Board. Id. 3 ¶3 On May 13, 2016, the appellant and his first -line supervisor engaged in a verbal altercation in the presence of another employee and a customer of the office. IAF, Tab 5 at 30 -32, 35, 37; Hearing Compact Disc (HCD) (testimony of customer), (testimony of the employee who witnessed the altercation). During this altercation, the appellant used profanity and raised his voice. IAF, Tab 5 at 30-32, 35, 37; HCD (testimony of customer ), (testimony of the employee who witnessed the altercation). The customer who witnessed this incident felt nervous and uncomfortable. IAF, Tab 5 at 37; HCD (testimony of customer). The agency determined that since the appellant’s behavior constituted m isconduct, he was in breach of the LCA. IAF, Tab 5 at 19 -20. As a result, the agency reinstated the removal decision held in abeyance from 2015 and the appellant’s removal became effective December 13, 2016. Id. ¶4 The appellant filed an initial appeal wit h the Board over his removal claiming that he did not violate the LCA. IAF, Tab 1 at 7. After holding a jurisdictional hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 18, Initial Deci sion (ID). The administrative judge determined that the appellant failed to meet his burden of proving that the Board has jurisdiction over the appeal of his removal, as he did not demonstrate that the waiver of appeal rights in the LCA should not be enfo rced. ID at 1 -9. Further, the administrative judge found that, because the Board lacked jurisdiction to adjudicate the underlying removal action, it could not address the appellant’s affirmative defenses. ID at 9. The appellant filed a petition for rev iew of the initial decision, to which the agency responded in opposition. Petition for Review (PFR) File, Tabs 1, 3. 4 DISCUSSION OF ARGUME NTS ON REVIEW ¶5 An appellant bears the burden to establish by preponderant evidence that his appeal is within the Board’ s jurisdiction.2 5 C.F.R. § 1201.56 (b)(2)(i)(A). The Board generally lacks jurisdiction over an action take n pursuant to an LCA in which an appellant waives his rights to appeal to the Board. Willis v. Department of Defense , 105 M.S.P.R . 466 , ¶ 17 (2007). To establish that a waiver of appeal rights in an LCA should not be enforced, an appellant must show one of the following: (1) he complied with the LCA; (2) the agency materially breached the LCA or acted in bad faith; (3) he did not voluntarily enter into the LCA; or (4) the LCA resulted from fraud or mutual mistake.3 Id. ¶6 On review, the appellant claims that the administrative judge erred in not considering the arguments that he raised regarding his first -line supervisor. PFR File, Tab 1 at 7 -8, 11 -12. The appellant alleges that his former supervisor is to blame for his c onduct since she provoked him, and that as a supervisor, the agency needed to hold her to a higher standard. Id. The appellant reasons that the agency should not have disciplined him for his conduct, as his supervisor only received an admonishment for he r role in the altercation, the lowest form of discipline. Id. at 8, 11. The appellant then states that the agency violated his due process rights because, prior to his removal , he did not receiv e notice that arguing with his supervisor constituted miscon duct . Id. at 9-10. ¶7 These arguments relate to the penalty determination, which the Board will not consider here due to the lack of jurisdiction over the removal taken pursuant 2 Preponderan t evidence is defined as 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 lik ely to be true than untrue. 5 C.F.R. § 1201.4 (q). 3 At the hearing and on review, the appellant proffered no argument that he involuntarily entered the LCA or that the LCA resulted from fraud or mutual mistake. Throughout the adjudication of this appeal, the appellant and the agency showed a mutual unders tanding of the terms of the LCA and neither disputed the agreement’s contents or effect. IAF, Tab 1 at 7, Tab 4 at 4 -5, Tab 5 at 8 -9, Tab 12 at 4 -5, Tab 13 at 4. 5 to an LCA with a valid waiver of Board appeal rights. See Martin v. Departmen t of Defense , 70 M.S.P.R. 653 , 657 (1996); see also Voss v. U.S. Postal Service , 119 M.S.P.R. 324 , ¶ 10 (2013) (remanding an appeal for the administrative judge to reconsider the reasonableness of the penalty in light of the appellant’s disparate penalty claim); Wilburn v. U.S. Postal Service , 28 M.S.P.R. 524 , 527 (1985) (holding that provocation is a mitigating factor ); Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 (1981) (finding that the clarity with whic h the employee was on notice or had been warned about the conduct in question is a factor to be considered when determining the appropriateness of a penalty ). In any event, an agency is not required to describe in detail all potentially prohibited employee conduct and subsequent discipl ine. See Goldstein v. Department of the Treasury , 62 M.S.P.R. 622 , 627 (1994), vacated and remanded on other grounds , 62 F.3d 1430 (Fed. Ci r. 1995) (Table); see also Byers v. Department of Veterans Affairs , 89 M.S.P.R. 655 , ¶ 24 (2001) (finding that the agency did not nee d to outline every possible example of patient abuse in its training manuals and seminars). ¶8 The appellant then alleges on review that the administrative judge considered additional allegations of misconduct, outside of the removal decision, when finding th at he did not comply with the LCA. PFR File, Tab 1 at 12 -13. The additional allegations that the appellant cites consist of the e mployee’s hearing testimony concerning what she witnessed during the May 13, 2016 altercation. Id. The administrative judge weighed this testimony as evidence, not as further allegations of misconduct. ID at 8. This argument provides no basis to disturb the initial decision. ¶9 On review, the appellant contends that the initial decision fails to provide clear and reasoned fin dings and conclusions. PFR File, Tab 1 at 13 -15. Initial decisions must contain findings of fact and conclusions of law for the material issues presented in the record, along with the corresponding reasons or bases. 5 C.F.R. § 1201.111 (b)(1) -(2); see Spithaler v. Office of Personnel Management , 6 1 M.S.P.R. 587 , 589 (1980) . The initial decision issued here meets this standard. ID at 1 -9. The appellant also states that the initial decision is deficient because the administrative judge did not assess whether the agency proved by preponderant evidence that he engaged in mis conduct. PFR File, Tab 1 at 14. The burden was not on the agency to do so. As a result of the LCA, in which the appellant agreed to a waiver of Board appeal rights, the administrative judge first needed to determine whether the Board had jurisdiction ov er the appeal. Willis , 105 M.S.P.R. 466 , ¶ 17; IAF, Tab 5 at 19 -20, 51 -52. The burden was on the appellant to establish jurisdic tion. 5 C.F.R. § 1201.56 (b)(2)(i)(A). Because the appellant failed to meet his requisite burden of proving jurisdiction, the administrative judge properly dismissed the appeal. ¶10 The ap pellant further argues on review that the administrative judge erred by finding the hearing testimony of the employee who witnessed the altercation more credible than his testimony. PFR File, Tab 1 at 15 -16. To resolve credibility issues, an administrati ve judge must identify the factual questions in dispute, summarize the evidence on each disputed question, state which version she believes, and explain in detail why she found the chosen version more credible, considering such factors as: (1) the witness ’s opportunity and capacity to observe the event or act in question; (2) the witness’s character; (3) any prior inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the contradiction of the witness’s version of events by other evidence or its consistency with other evidence; (6) the inherent improbability of the witness’s version of events; and (7) the witness’s demeanor. Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987). ¶11 The employee who witnessed the altercation between the appellant and his first-line supervisor testified that the appellant used profanity, while the appellant 7 contends that he did not recollect doing so.4 HCD (testimony of the appellant), (testimony of the employee who witnessed the altercation). The administrative judge analyzed the appropriate Hillen factors in finding the employee’s testimony more credible. ID at 4 -6. The administrative judge considered that the statement prepared by the employee following the altercation did not reference the use of profanity, but determined that this employee’s hearing testimony was substantially consistent with the rest of her previous statement prepared closer to the date of the argument. ID at 5; IAF, Tab 5 at 35; HCD (testimony of the employee who witnessed the altercation). The administrative judge also referenced the contemporaneous email that the appellant’s first -line supervisor sent on May 13, 2016, in which she too stated that the appellant cursed at her, further corroborating this employee’s testimony. ID at 5; IAF, Tab 5 at 32. Moreover, the administrative judge found that this employee had no reason for bias against the ap pellant. ID at 5. The accounts of the altercation from the appellant’s first -line supervisor and the other witness align with this employee’s testimony as well. IAF, Tab 5 at 30 -32, 35, 37; HCD (testimony of customer), (testimony of the employee who wit nessed the altercation). ¶12 In summary, the administrative judge found that, after assessing each witness’s demeanor and taking into account the first -line supervisor’s contemporaneous email, the employee’s testimony regarding the use of profanity was credi ble. ID at 6. Th e Board must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observ ing the demeanor of a testifying witness. Haebe v. Department of Justice , 4 In the removal decision, the agency did not allege that the appellant used profanity; rather, it concluded that he committed misconduct by engaging in a verbal altercation with his supervisor. IAF, Tab 5 at 20. During the hearing, conflicting testimony was taken on whether the appellant used profanity during the altercation, but the agency’s decision that the appellant engaged in misconduct and violated the LCA did not hinge on the appellant’s use of profanity. IAF, Tab 5 at 9 -10, 12 -13, 20; HCD (testimony of the appellant), (testimony of the employee who witnessed the altercation). 8 288 F.3d 1288 , 1301 (Fed. Cir. 2002). The Board may overturn such determinations only when it has sufficiently sound reasons for doing so . Id. There is no sufficiently sound reason for doing so in this matter. ¶13 Accordingly, we affirm the initial decision. NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 5 Since t he issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 9 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 10 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial revi ew pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 11 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegation s of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the F ederal 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,” whi ch is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.g ov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 6 The original stat utory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently all ows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review A ct is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 12 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representati on in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/ Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SMITH_JUSTIN_P_PH_0752_17_0139_I_1_FINAL_ORDER_2045772.pdf	2023-06-30	null	PH-0752	NP
2,951	https://www.mspb.gov/decisions/nonprecedential/DUCKWORTH_JUDITH_AT_0752_17_0303_I_1_FINAL_ORDER_2045816.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JUDITH DUCKWORTH1, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER AT-0752 -17-0303 -I-1 DATE: June 30, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL2 Robert H. Weinfeld , Okatie, Sou th Carolina, for the appellant. Deborah E. Shah , Fort Gordon, Georgia, for the agency. 1 After the petition for review submissions were filed, the appellant’s representative filed a motion for substitution, explaining that Ms. Duckworth died on March 16, 2023, and requesting that Richard and Kevin Duckworth, Ms. Duckworth’s heirs, be substitut ed in her place. Petition for Review File, Tab 25. The motion includes a copy of a death certificate documenting the appellant’s death and a copy of her last will and testament naming Richard and Kevin Duckworth as primary remainder beneficiaries of her estate. Id. at 4, 7 -17. If an appellant dies, the processing of an appeal will only be completed upon substitution of a proper party. 5 C.F.R.§ 1201.35 (a). Motions to substitute must be filed with the Board within 90 days after the death of a party except for good cause shown. 5 C.F.R. § 1201.35 (b). The appellant’s representative filed the motion to substitute 11 days after the appellant’s death. Thus, the motion was timely filed , and Richard and Kevin Duckworth are proper individuals to substitute for the appellant. Accor ding ly, we grant the appellant's motion for substitution and continue with the processing of this appeal . Both Ms. Duckworth and Richard and Kevin Duckworth will be referred to as “the appellant.” 2 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedent ial orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction her appeal of her removal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains e rroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the a ppeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitione r’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 Effective January 13, 2017, the agency re moved the appellant from her GS-11 Nurse position based on alleged misconduct. Initial Appeal File (IAF), Tab 9 at 25 -30. The agency’s removal notice provided the appellant with accurate and complete notice of her right to challenge her removal via the negotiated grievance procedure, a Board appeal, a mixed -case discrimination complaint, or a whistleblower reprisal complain t with the Office of Special Counsel. Id. at 26 -29. The notice further informed the appellant that she could elect one of these four options and that whichever option she chose first would 3 preclude her right to pursue the other three options. Id. at 26. On January 20, 2017, she grieved her removal , and, on March 10, 2017, the agency issued a decision denying her grievance on its merits. Id. at 32 -34, 67 -69. ¶3 On February 10, 2017, the appellant appealed her removal to the Board and requested a hearing. IAF, Tab 1 at 2. After issuing appropriate notice of the applicable burdens and elements of proof and co nsidering the appellant’s response , IAF, Tabs 10 -11, the administrative judge issued an initial decision in which he found that the appellant’s removal was grievable under the applicable collective bargaining agreement; the appellant invoked the negotiated grievance proce dure when she filed her January 20 challenge to the removal; her challenge was a grievance regardless of whether she subjectively inten ded her challenge to be a grievance; and, because the appellant filed her grievance before she filed her appeal, her appeal was precluded by 5 U.S.C. § 7121 (e). IAF, Tab 14, Initial Decision (ID) at 5-6. The administrative judge dismissed her appeal for lack of jurisdiction without a hearing. Id. at 1, 7. The appellant has filed a petition for review challenging the administrative judge’s decision. Petition for Review (PFR) File, Tab 1. ¶4 Matters that are covered under both a negotiated grievance procedure and the Board’s chapter 75 jurisdiction, such as the appellant’s removal, may, at the employee’s discretion, be grieved under the negotiated grievance procedure or appealed to the Board under 5 U.S.C. § 7701 , but not both. 5 U.S.C. § 7121 (e)(1); Pirkkala v. Department of Justice , 123 M.S.P.R. 288, ¶ 6 (2016). The employee is deemed to have made a binding election under section 7121(e)(1) when she has timely filed either a grievance or an appeal, whichever occurs first. 5 U.S.C. § 7121 (e)(1); Pirkkala , 123 M.S.P.R. 288, ¶ 6. Bargaining unit employees and their exclusive representatives each have independent rights to grieve matters within the scope of the grievance procedure. Kendrick v. Department of Veterans Affairs , 74 M.S.P.R. 178 , 181 (1997) . If the union grieves a matter without the employee’s explicit consent, the union’s grievance 4 does not co nstitute an election on the part of the employee and does not preclude a later Board appeal. Id. ¶5 Here, the appellant’s January 20 memorandum did not explicitly state that it constituted a “grievance,” but it was addressed to the agency official who would have heard the matter if it had been a grievance, and it sought in substance to reverse the removal action. IAF, Tab 9 at 32 -34. The applicable collective bargaining agreement defines a “grievance” as: [A]ny complaint: (1) By an employee concerning an y matter relating to the employment of the employee; (2) By an employee or the parties concerning: (a) The effect or interpretation, or claim of breach, of this Agreement; (b) Any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment. Id. at 54 -55 ( Labor Management Agreement, Article 34, Section 2.a). The administrative judge found, and we agree, that the appellant’s memorandum, regardless of any deficiencies in traditional grieva nce form and regardless of the appellant’s intent, fell squarely within the contract’s broad definition of “grievance.” ID at 6. Moreover, the agency’s removal notice clearly informed the appellant of the various remedies available to her and the consequ ences of making an election. IAF, Tab 9 at 26 -29. Shortly after the appellant filed her grievance, she attended a Step 3 grievance meeting with the Deputy Commander for Inpatient Services . Id. at 64, 67 -68. The appellant contended that she had not intended to file a grievance , and the parties rescheduled the meeting so the appellant’s preferred union representative could attend. Id. at 63 -64, 67 -68. The Deputy Commander documented the request to r eschedule in an email in which she referred to the rescheduled meeting as a Step 3 meeting. Id. at 64. At that point, the union also claimed that the appellant’s January 20 memorandum was not a grievance , and it requested to cancel the meeting . Id. at 63. However, 5 neither the appellant nor the union attempted to withdraw the grievance until after the agency issued its Step 3 decision. Thus , the Deputy Commander had before her a memorandum from the appellant in which the appellant contes ted the removal action; as the C olonel stated in h er Step 3 decision, if the memorandum was not a grievance, “there was no clarification provided as to what this . . . memo was in the alternative.” Id. at 68. Under these circumstances, the fact that the appellant knew that the agency considered the memo randum to be a grievance and she proceeded anyway lend s support to the conclusion that her January 20 memorandum was a grievance. ¶6 On review, the appellant reiterates the arguments she made below. PFR File, Tab 1. She contends, for example, that the Janua ry 20 memorandum was not a Step 3 grievance because the document did not identify itself as such as required by the negotiated grievance procedure. Id. at 2, 5. The negotiated grievance procedure contains no such requirement. IAF, Tab 9 at 54-58. She further contends that the agency failed to prove that the memorandum constituted a grievance. PFR File, Tab 1 at 5. The burden of proving Board jurisdiction over her appeal is on the appellant, not the agency . ¶7 Moreover, the appellant alleges that she int ended the January 20 memorandum to be an “appeal” under the agency’s Open Door Policy, which she filed on the advice of a colleague. Id. at 4-5. The memorandum does not refer to the Open Door Policy. In any event, the appellant does not explain why she chose to follow the advice of a colleague , rather than follow the clear instructions that the agency provided her in its notice of appeal rights , including information on whom to contact if she had questions or needed further information . ¶8 The appellant further contends that the January 20 memorandum cannot be deemed a Step 3 grievance because there is no preceding grievance at Step 1 or Step 2. PFR File , Tab 5 at 2. However, the negotiated grievance procedure explicitly provides that grievances concern ing the removal from Federal service bypass Step 1 and Step 2 and proceed directly to Step 3. IAF, Tab 9 at 57. 6 ¶9 Next, t he appellant alleges that the agency lacks the authority to decide whether the January 20 memorandum constituted a grievance. PFR Fil e, Tab 1 at 3-4. The agency may interpret the parties’ contract however it wishes , and, if the union believes that the agency’s interpretation is incorrect, it has remedies available under the Federal Service Labor -Management Relations Statute . 5 U.S.C. §§ 7101 -7135. As to the appellant, however, the administrative judge correctly found that it was her burden to prove jurisdiction over her appeal. ID at 1-2. Because her burden required her to sho w that the January 20 memorandum was not a valid election, she has had the opportunity and the obligation to show that the agency was wrong to consider the memorandum to be a grievance , which she failed to do . She also has not explained why she considered a submission under the Open Door Policy to be a valid means of challenging her removal when the agency provided her clear notice of her four options (which did not include an Open Door Policy appeal) and informed her of the preclusive effect of whichever route she chose first. We find, therefore, that the administrative judge correctly dismissed the appeal for lack of jurisdiction. ¶10 The appellant avers that the administrative judge was biased against her because he issued a jurisdictional show cause order before she had fully responded to the motion to dismiss that prompted the show cause order. PFR File, Tab 1 at 1. 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). Here, t he administrative judge was obligated to provide the notice of the burdens and elements of proof contained in the show cause order even if the appellant already had responded meaningfully to the agency’s motion to dismiss. That the administrative judge chose to issue the show cause notice before the appellant responded to the motion to dismiss did not prejudice the appellant’s substantive rights. In any event, an administrative judge’s case -related rulings are not a proper basis for finding bias absent some 7 extrajudicial conduct that reflects a deep -seated favoritism or antagonism that would make fair judgment impossible. Vaughn v. Department of the Treasury , 119 M.S.P.R. 605 , ¶ 18 (2013) . The appellant has not demonstrated that the administrative judge’s actions here constituted bias. ¶11 Finally, the appellant has submitted numerous documents on review. Because they are all alrea dy in the record below, they do not constitute new and material evidence , and we therefore have not relied on them.3 Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980). NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this fi nal decision, you should immediately review the law applicable to your claims and carefully follow all 3 On July 27, 2022, the appellant filed a motion seeking leave to file an ad ditional pleadin g regarding the application of the U.S. Supreme Court’s decision in Lucia v. Securities and Exchange Commission , 138 S.Ct. 2044 (2018), to her appeal. PFR File, Tab 21. The appellant did not raise an objection to the nature of the administrative judge’s appointment below . In McClenning v. Department of the Army , 2022 MSPB 3 , the Board found that an Appointments Clause challenge must be raised before the administrative judge and that the Board will not address the merits of such a claim raised for the first time on review. Thus, the appellant has not shown the need for the additional submission , and the motion is accordingly denied. 5 C.F.R. § 1201.114 (a)(5). 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that fo rum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit , you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in sec uring pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants befor e the 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 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option app lies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a di sposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a c laim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for re view to the EEOC by regular U.S. mail, the address of the EEOC is: 10 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 provid ed for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file peti tions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to Novemb er 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circu it 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorn ey will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DUCKWORTH_JUDITH_AT_0752_17_0303_I_1_FINAL_ORDER_2045816.pdf	2023-06-30	null	AT-0752	NP
2,952	https://www.mspb.gov/decisions/nonprecedential/DAVIS_ANTHONY_AT_1221_16_0393_W_1_FINAL_ORDER_2045826.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ANTHONY DAVIS, Appellant, v. DEPARTMENT OF JUSTIC E, Agency. DOCKET NUMBER AT-1221 -16-0393 -W-1 DATE: June 30, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Anthony Davis , Columbia, South Carolina, pro se. Marie Clarke , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction. The appellant’s petition for review is DISMISSED as untimely filed without good cause shown . 5 C.F.R. § 1201.114 (e), (g). However, we VA CATE the initial decision and DISMISS the appeal for lack of jurisdiction for the reasons set forth in this Final 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 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 BACKGROUND ¶2 At all times relevant to the prese nt appeal, the appellant was a Correctional Officer with the agency’s Bureau of Prisons. Initial Appeal File (IAF), Tab 1 at 1. The appellant filed an appeal via e -Appeal Online on March 13, 2 016, alleging “nepotism” at the F ederal correctional facility. Id. at 3, 5. Specifically, he alleged that the agency named an individual as the Supervisory Correctional Specialist in the sa me department as his wife and that individual was now his wife’s “immediate supervisor.” Id. at 5. The appellant alleged that s uch nepotism violated unspecified F ederal regulations and the terms of the govern ing master collective bargaining agreement. Id. He claimed that agency officials were “going to promote” the individual’s wife to a vacant Procurement Property Specialist position to “correct their mistake,” a position for which the appellant applied. Id. The appellant stated that he file d a whistleblower reprisal complaint with the Office of Special Counsel (OSC) on September 11, 2015, but that he did not receive written notice that OSC made a decision or terminated its investigation. Id. at 4. ¶3 The ap pellant filed 45 pages of supporting documentation, including excerpts from a collective bargaining agreement. IAF, Tab 2. He also submitted memoranda and intra -agency email correspondence between August 2015 and February 2016, regarding the alleged nepo tism concerns of the individual’s appointment to the Supervisory Correctional Specialist position in that individual’s wife’s supervisory chain of command. Id. The documentation included a February 29, 2016 memorandum regarding the chain of command for the correc tional facility referencing an OSC case number. Id. at 1. However, the appellant provided neither a copy of any complaint he submitted to OSC nor a statement of whether he provided the 45 pages he filed with the Board to OSC with his complaint. ¶4 The administrative judge issued an order explaining the Board’s jurisdictional limitations in ind ividual right of action (IRA) appeals and 3 instructed the appellant to meet his jurisdictional burden. IAF, Tab 4. The appellant did not respond to the order. The administrative judge issued a decision on April 5, 2 016, dismissing the appeal for l ack of jurisdiction, without holding the requested hearing. IAF, Tab 7, Initial Decision (ID). He explained that the Board generally l acks jurisdiction over a nonselection appeal such as the appellant’s apparent claim that his anticipated nonselection for a certain position was “proximately caused by nepotism.” ID at 2. To the extent that the appellant’s claim constituted an IRA appeal of whistleblower reprisal, the administrative judge found that the appellant failed to establish that he exhausted remedies for corrective action with OSC. ID at 2 -3. ¶5 The appellant filed a petition for review on or about June 30, 2017 , more than 1 year a fter the initial decision was issued. Petition for Review (PFR) File, Tab 1. The Office of the Clerk of the Board issued a notice to the appellant informing him that his petition was untimely filed because it was not filed on or before May 10, 2016. PFR File, Tab 2 at 1. The Office of the Clerk of the Board instructed the appellant how to file a motion to accept the petition as timely or to waive the time limit for good cause . Id. at 2. The appellant did not file any such motion. The agency filed a r esponse opposing the petition for review as untimely filed. PFR File, Tab 5. DISCUSSION OF ARGUME NTS ON REVIEW The appellant has not established good cause for his untimely filed petition for review. ¶6 A petition for review generally must be filed within 35 days after the date of the issuance of the initial decisio n or, if the party filing the petition shows that the initial decision was received more than 5 days after it was issued, within 30 days after the party received the initial decision. 5 C.F.R. § 1201.114 (e). The Board will waive the time limit for filing a petition for review only upon a showing of good cause for the delay in filing. 5 C.F.R. §§ 1201.113 (d), 1201.114(f). The party who submits an untimely petition for review has the 4 burden of establishing good cause for the untimely filing by showing that he exercised due diligence or ordinary prudence under t he particular circumstances of the case. Sanders v. Department of the Treasury , 88 M.S.P.R. 370 , ¶ 5 (2001). 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 circumstance s beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationshi p to his inability to timely fil e his petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table). ¶7 As a preliminary matter, the appellant has not filed a motion regarding the timeliness of his petition for review , despite receiving notice from the Office of the Clerk of the Board regarding the necessary requirements and the opportunity to file such a motion. PFR File, Tab 2; see 5 C.F.R. § 1201.114 (g). Further , we find that his assertions in his petition for review fail to establish that his petition was timely filed or that good cause exists for the filing delay. ¶8 The appellant argues that he did not receive the April 5, 2016 initial decision until June 8, 2017 , and he submits a photocopy of an envelope from the Board’s Atlanta Regional Office postmarked June 5, 2017, which purportedly contained a paper copy of the initial decision. PFR File, Tab 1 at 2-3. He asserts that his email address has not changed during the course of his appeal, but he argues that the a gency “erased” and “tampered with” his emails. Id. at 2. The appellant’s registration as an e -filer, IA F, Tab 1 at 2, constituted consent to accept electronic service of pleadings filed by other registered e -filers and documents issued by the Board, see 5 C.F.R. § 1201.14 (e)(1). The Board ’s e-Appeal Online logs and the certificate of service accompanying the initial decision indicate that a notification with a link to the e -Appeal Online Repository was sent to the appellant’s email address of record on April 5, 2016 , and he 5 received the do cument electronically on that date. IAF, Tab 8; see 5 C.F.R. § 1201.14 (j)(1), (m)(2) . As an e -filer, the appellant was responsible for ensuring that filters did not block the Board’s emails and for monitoring case activity in the Repository to ensur e that he had received all case -related documents. 5 C.F.R. § 1201.14 (j)(2) -(3). If he was concerned about the security of his Federal email account, he could have changed his method of service to regular mail or changed his email address of record. See 5 C.F.R. § 1201.14 (e)(4), (6) (permitting withdrawa l of registration as an e -filer and outlining the process for changing the email address of record). Thus, we find that the appellant timely received notice of the initial decision on April 5, 2016, and he filed his petition for review more than 1 year la te. His petition for review does not articulate or establish good cause for this delay. Accordingly, we dismiss the petition for review as untimely filed with no good cause shown. Although the administrative judge erroneously found that the appellant had not filed a complaint with OSC, the Board lacks jurisdiction over this matter as an IRA appeal for other reasons. ¶9 Although we have dismissed the appellant’s petition for review as untimely, the issue of the Board’s jurisdiction is always before the Board and may be raised sua sponte by the Board at any time during a Board proceeding. E.g., Francis v. Department of the Air Force , 120 M.S.P.R. 138 , ¶ 8 (2013). As the administrative judge correctly recognized, a nonselection is not an appealable adverse action pursuant to 5 U.S.C. chapter 75. 5 U.S.C. §§ 7512 , 7513(d); Prewitt v. Merit Systems Protection Board , 133 F.3d 885 , 886 (Fed. Cir. 1998). However, the Board may address a nonselection in some other conte xts. Becker v. Department of Veterans Affairs , 107 M.S.P.R. 327 , ¶ 5 (2007) . Most relevant to this appeal, the Board may address a nonselection in an IRA appeal. Id. To establish the Board’s jurisdiction over an IRA appeal, an appellant must have exhausted his administrative remedies before OSC and mad e nonfrivolous 6 allegations2 of the following: (1) he made a protected disclosu re 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); a nd (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302 (a)(2)(A). 5 U.S.C. §§ 1214 (a)(3), 1221 (a), (e)(1); Salerno v. Department of the Interior , 123 M.S.P. R. 230 , ¶ 5 (2016); see Yunus v. Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001).3 An appellant filing an IRA appeal has not exhausted his OSC remedy unless he has filed a whistleblower reprisal complaint with OSC and either OSC has notified him that it was terminating its investigation of his allegations or 120 calendar days have passed since he first sought corrective action. 5 U.S.C. § 1214 (a)(3); Simnitt v. Department of Veterans Affairs , 113 M.S.P .R. 313 , ¶ 8 (2010); 5 C.F.R. § 1209.5 (a). Moreover, the Board only may consider those disclosures of information and personnel actions that t he appellant raised before OSC. Mason v. Department of Homeland Security , 116 M.S.P.R. 135 , ¶ 8 (2011). ¶10 The appellant’s primary asser tion in his initial appeal and supporting documen tation is that the a gency engaged in prohibited nepotism by allowing the individual who became the Supervisory Correctional Specialist to become his wife’s supervisor. IAF, Tab 1 at 5, Tab 2. Although nepotism is a prohibited personnel practice (PPP) outlined in 5 U.S.C. § 2302 (b)(7), an assertion of such a PPP does not provide an independent basis for finding Board jurisdiction. See Wren v. D epartment of the Army , 2 M.S.P.R. 1 , 2 (1980), aff’d, 681 F.2d 867 , 871-73 (D.C. Cir. 1982) ; see also 5 U.S.C. § 1221 (a) (limiting IRA appeals to 2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4 (s). The U.S. Court of Appeals for the Federal Circuit has found that, in the context of an IRA appeal, a nonfrivolous allegation is an allegation of “sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Hessami v. Merit Systems Protection Board , 979 F.3d 1362 , 1364, 1369 (Fed. Cir. 2020). 3 We have reviewed the relevant legislation enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. 7 allegations of a PPP described in 5 U.S.C. § 2302 (b)(8) or (b)(9)(A)(i), (B), (C), or (D)) . Similarly, the appellant’s anticipated nonselection for the Procurement Property Specialist position, allegedly proximately caused by nepotism, is not an appealable adverse action pursuant to 5 U.S.C. chapter 75. See 5 U.S.C. §§ 7512 , 7513(d); Prewit t, 133 F.3d at 886 . However , the appellant could potentially pursue a n IRA appeal based on alleged whistleblower reprisal by first exhausting his remedies with OSC in accordance with 5 U.S.C. § 1214 (a)(3) a nd the Board’s regulations at 5 C.F. R. § 1209 .5. ¶11 The administrative judge erroneously found that the appellant stated in his initial appeal form that he had not filed a claim with OSC. ID at 3 n.1. In fact, the appellant stated that he had filed a whistleblowing complaint with OSC on September 11, 2015. IAF, Tab 1 at 4. However, although the appellant referenced an OSC case number in the 45 pages of supporting documentation, IAF, Tab 2 at 1, he did not provide a copy of the complaint that he filed with OSC or provide any other supportive evidence . Also, h e did not reply to the administrative judge’s jurisdiction al order , which explained the Board’s jurisdictional limitat ions in IRA appeals and instructed the appellant how to meet his juris dictional burd en. IAF, Tab 4. He has fail ed to allege any facts that would support a finding that he made a complaint to OSC that he engaged in whistleblowing or other protected activity that was a contributing factor in the agency’s decision to take the anticipated action to hire another individual for the Proc urement Property Specialist position . Thus, although the appellant went to OSC with some type of complaint, he has failed to allege or show it was the type of whistleblower reprisal complaint that could be the basis for an IRA appeal.4 4 Attached to the appellant’s untimely petition for review is a March 31, 2016 letter from OSC. PFR, Tab 1 at 4 -5. That letter states that OSC concluded that the appellant had n ot presented evidence of a violation of 5 U.S.C. § 2302 (b)(7), and it contains no references to any claim of reprisal for whistleblowing or other protected activity that may be adjudicated in an IR A appeal. Id.; see 5 U.S.C. §§ 1221 , 2302(b)(8) -(9). Thus, 8 ¶12 Accordingly, we d ismiss the petition for review as untimely filed. We vacate the initial decision and dismiss the appeal for lack of jurisdiction for the reasons set forth in this Final Order, which is now the Board’s final decision in this matter . 5 C.F.R. § 1201.113 (c). NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable t ime limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular fo rum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U .S. Court of Appeals for the Federal Circuit, which must be received by the court this letter does not support a finding that the appellant exhausted a whistleblower reprisal complaint with OSC. 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. 9 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a peti tion for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional inform ation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC r eview of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. I f so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file 10 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, e xcluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your repr esentative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 11 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petit ion for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 decisi on. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar relevance is the court’s “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 provisio n that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroact ive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 12 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services p rovided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DAVIS_ANTHONY_AT_1221_16_0393_W_1_FINAL_ORDER_2045826.pdf	2023-06-30	null	AT-1221	NP
2,953	https://www.mspb.gov/decisions/nonprecedential/DIAS_JASON_T_PH_0752_18_0351_I_1_FINAL_ORDER_2045867.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JASON T. DIAS, Appellant, v. DEPARTMENT OF JUSTIC E, Agency. DOCKET NUMBER PH-0752 -18-0351 -I-1 DATE: June 30, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ross A. Nabatoff , Esq uire, Washington, D.C., for the appellant. Margo Chan , Esquire , Denver, Colorado, for the agency. Susan E. Gibson , Esquire, Washington, D.C. , for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which reversed its removal action, finding that it failed to prove the charge. Generally, we grant petitions such as this one only in the following circumstance s: 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 a dministrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s ruling s during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is av ailable that, despite the petitioner’s due diligence, was not available w hen the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). Afte r fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant was a Deputy U.S. Marshal with the U.S. Marshals Service (USMS) . Initial Appeal File (IAF), Tab 6 a t 8. In June 2016, he underwent right knee reconstruction, resulting in his placement on limited duty within the agency. IAF, Tab 7 at 11, Tab 17 at 26 -27. Under agency policy, employees on limited duty must support their limited duty assignment with me dical documentati on, updated monthly, using the F orm USM -522A , Physician Evaluation Report for USMS Operational Em ployees (522A). IAF, Tab 7 at 12, 57. Thus, in accordance with the policy, the appellant was required to submit a new 522A every month until his doctor cleared him to return to full duty. ¶3 The appellant submitted 522As from June through December 2016 . IAF, Tab 6 at 53, Tab 17 at 26 -27. He also submitted a 522A dated January 1, 2017. IAF, Tab 7 at 16 -17. Upon reviewing this form, a member of the agency’s medical staff noticed that it appeared to be identical to the appellant’s December 1, 201 6 522A, except for the date . Id. at 11. This ultimately promp ted an investigation by the agency’s Office of the Inspector General (OIG) into 3 whether the appellant falsified documents relating to the agency’s limited duty program. Id. at 5. During his interview with the OIG, the appellant admitted to changing the d ate on the January 1, 2017 522A, as well as on a subsequent 522A dated February 2, 2017 . Id. at 6. According to the appellant, he submitted the two altered documents to avoid the inconvenience of contacting the doctor’s office to obtain new 522As. Id. After submitting the altered 522As, the appellant submitted legitimate 522As on February 23 and March 23, 2017 , and was cleared to return to full duty in April 2017 . IAF, Tab 17 at 17 -24. ¶4 By notice dated March 19, 2018, the agency charged the appellant with falsification of official documents and proposed his removal. IAF, Tab 6 at 118-26. The cha rge included two specifications, the first based on the altered January 1, 2017 522A , and the second based on the altered February 2, 2017 522A. Id. at 118 -19. The appellant submitted both a written and oral reply. Id. at 13 -44. On June 5, 2018, the agency sustained both specifications and the charge and thus removed the appellant. Id. at 8-12. ¶5 The appellant filed the instant appeal . IAF, Tab 1 at 4. After holding a hearing, the administrative judge issued a decision finding the agency did not prove its charge and reversing the appellant’s removal on that basis . IAF, Tab 27, Initial Decision (ID) at 1 , 23. In reversing the agency’s action, the administrative judge found that the appellant’s inaccurate statements, the altered dates on the 522As, were not material and were not done for private material gain. ID at 19. According to the administrative judge , the misstatements were not material because the appellant knew that his medical condition remained the same in January and February of 2017, and thus , he would have remained on limited duty regardless of whether he falsified the forms. ID at 22. The ad ministrative judge also found that the appellant altered the dates to avoid the hassle of contacting his medical provider to obtain a new 522A, which was so minor and intangible that it was insufficient to amount to a private material gain. ID at 22 -23. 4 ¶6 The agency has filed a petition for review. Petition for Review (PFR) File, Tab 1. The appellant has responded and also requested that the Board dismiss the petition for review for failure to provide interim relief. PFR File, Tab 3. The agency has repli ed to his response and provided additional evidence of compliance . PFR File, Tab 4.2 DISCUSSION OF ARGUME NTS ON REVIEW We decline to dismiss the petition for review based on the agency’s noncompliance with the order for interim relief. ¶7 When, as here, the appellant was the prevailing party in the initial decision and interim relief was ordered, a petition for review filed by the agency must be accompanied by a certification that the agency has complied with the interim relief order, either by providing the interim relief ordered or by making a determination that returning the appellant to the place of employment would cause undue disruption to the work environment. Elder v. Department of the Air Force , 124 M.S.P.R. 12 , ¶ 18 (2016). The appellant challenges the agency’s certification of compliance with the interim relief order and requests that the Board dismiss t he agency’s petit ion for review on that basis . PFR File, Tab 3 at 11-12. In particular, he alleges that the agency failed to reinstate him effective May 10, 2019, the date of the initial decision. PFR File, Tab 3 at 11 . He also argues that the agency has not issued his credentials, which he needs to carry a weapon, and has not returned him to his regular duties. Id. at 10-11. Because, as discussed below, we deny the agency’s petition for review, the issuance of our 2 The appellant subsequently submitted new evidence of the agency’s alleged noncompliance with the interim relief order , which he argues only became available to him after he filed his response to the agency’s petition for review. PFR File, Tab 5. We find it unnecessary to make a determination as to whether to consider this evidence. As set forth below, our final decision renders moot any dispute concerning the a gency’s compliance with the interim relief order. See Elder v. Department of the Air Force , 124 M.S.P.R. 12 , ¶ 20 (2016) (explaining that the Board would not seek additional evidence of compliance from an agency when the final decision rendered moot any dispute concern ing the agency’s compliance with the interim relief order ). 5 final decision renders moot any dispute concerning th e agency’s compliance with the interim relief order. Elder , 124 M.S.P.R. 12 , ¶ 20. If the appellant believes that the agency is in noncompliance with the Board’s Final Order, he may file a petition for enforcement in accordance with the instructions provided below. Id. The administrative judge correctly determined that the agency failed to prove the charge of falsification. ¶8 To establish a charge of falsification, the agency must prove by preponder ant evidence that the appellant (1) supplied wrong information, and (2) knowingly did so with the intention of defrauding, deceiving, or misleading the agency. Boo v. Department of Ho meland Security , 122 M.S.P.R. 100 , ¶ 10 (2014). The first element of the test requires that the agency prove that the false statement was “material.” Leatherbury v. Department of the Army , 524 F.3d 1293 , 1300 (Fed. Cir. 2008). The second element requires that the agency prove that the appellant’s falsification was done for his own “private material gain.” Boo, 122 M.S.P.R. 100 , ¶ 12 (citin g Leatherbury , 524 F.3d at 1300 ). ¶9 The administrative judge concluded that the misrepresentation s at issue here were neither material nor made for private material gain. ID at 18 -23. The agency argues that the administrative judge’s statement of its burden was incorrect. It asserts that the falsification in the cases relied on by the administrative judge involved false statements, whereas this appeal involves “the alteration and forgery of a document. ” PFR File, Tab 1 at 8. The agency cites Brown v. Defense Logistics Agency , 65 M.S.P.R. 436 , 442 (1994), aff’d per curiam , 67 F.3d 319 (Fed. Cir. 1995) (Table) , in which the Board held that whether the appellant intended to gain personally from the falsification was immaterial to finding intent. PFR File, Tab 1 at 8 -9. The holding in Brown was effectively overruled in Leatherbury , 524 F.3d at 1300 , in which the U.S. Court of Appeals for the Federal Circuit held that, to prove a charge of falsification, the agency must show that the employee intended to defraud the agency for his own private material gain . See Boo, 122 M.S.P.R. 100 , ¶¶ 11 -12 (modifying the 6 Board’s prior decisions in Seas v. U.S. Postal Service , 73 M.S.P.R. 422 , 42 7 (1997), and Schoeffler v. Department of Agriculture , 47 M.S.P.R. 80 , 84, vacated in part on other grounds by 50 M.S.P.R. 143 , 146 (1991), to the extent that they suggested that an agency does not have to establish that an employee personally benefitted or gained from his misrepresentation to prove a charge of falsification ). The cases modified by Boo, like the instant appeal, involved alleged falsification of agency documents. See Seas , 73 M.S.P.R. at 427 -28 (finding that an administrative jud ge properly affirmed a charge of falsification based on an appellant signing her subordinate’s name on an audit report form); Schoeffler , 47 M.S.P.R. at 83 -85 (finding that an administrative judge properly affirmed two charges of falsification based on inaccuracies in (1) a time and attendance report and (2) a travel document). Thus, the fact that the appellant’s alleged misconduct here involved altering a document does not exempt the agency from the requirement of proving private material gain. To the ex tent the agency is attempting to recharacterize its charge, that effort must fail. See Alvarado v. Department of the Air Force , 103 M.S.P.R. 1 , ¶ 9 (2006) (finding that the agency is required to prove the charge as it is set out in the notice of proposed removal, not some other offense that might be sustai nable by the facts of the case), aff’d , 626 F. Supp. 2d 1140 (D.N. M. 2009), aff’d, 490 F. App’x 932 (10th Cir. 2012). ¶10 The agency also disagrees with the administrative judge’s findings that the appellant’s misstatements were neither material nor for private material gain. PFR File, Tab 1 at 7 -14. We find it unnecessary to conside r the parties’ arguments as to whether the misstatements were material. PFR File, Tab 1 at 7, 11-14, Tab 3 at 12-17, 22 -25. Because we agree with the administrative judge that the agency failed to prove that the appellant intended to alter the date for a private material gain, we agree with his determination that the agency failed to prove the charge. ¶11 While recognizing the appellant provided altered 522As, the administrative judge found that the appellant “knew [he would remain on limited duty] whether 7 or not he changed the dates” and that the agency “agree[d] the medical information contained on the reports bearing the altered dates was accurate.” ID at 22. The agency disputes these findings. PFR File, Tab 1 at 11 -14. As to the administrative judge’ s findings that the appellant knew he would remain on limited duty despite failing to obtain updated 522As, we defer to this fac tual determination because it was based on the administrative judge’s demeanor -based credibility findings . See Purifoy v. Depar tment of Veterans Affairs , 838 F.3d 1367 , 1372 (Fed. Cir. 2016) (finding that the Board must afford “special deference ” to the administrative judge’s findings respecting credibility whe n she “relies expressly or by necessary implication on the demeanor of the witnesses ”) (citation omitted ). In particular, the administrative judge found, relying on the appellant’s responses to agency OIG agents and his hearing testimony, that he knew his restriction would remain the same on any 522A completed on January 1 and February 2, 2017, and he would remain on limited duty during this period. ID at 5, 16, 22; IAF, Tab 7 at 79; Hearing Transcript (HT) at 20 5, 213 -14 (testimony of the appellant). ¶12 The agency argues that the appellant’s 522As changed over the course of his recovery, including his medic al restrictions. PFR File, Tab 1 at 13 -14; IAF, Tab 6 at 140 -43, Tab 17 at 17 -18. For example, on his Decem ber 1, 2016 522A, his doctor’s office indicated the appellant could not lift 45 pounds or more, use firearms, or engage in “aggressive law enforcement activities.” IAF, Tab 6 at 49. As of February 23, 2017, the doctor’s office lifted the first two restri ctions but not the third. IAF, Tab 17 at 18. However, this evidence does not show that during the approximately 2 -month period at issue here, from the beginning of January 2017 until the appellant submitted a new 522A on February 23, 2017, any changes in his medical restrictions occurred. Thus, we discern no basis to disturb the administrative judge’s credibility -based determination that the appellant knew his restrictions would be the same during this period. 8 ¶13 As to the administrative judge’s finding tha t the agency share d the appellant’s belief that he was entitled to limited duty , despite altering the forms, the record does not support the agency’s argument to the contrary. PFR File, Tab 1 at 13. The deciding official and proposing official testified that the appellant would have remained eligible for limited duty status during this time period even if he had gone to the doctor. HT at 48 (testimony of deciding official), 119 -20 (testimony of proposing official). Moreover, the agency allowed the appel lant to violate their 30 -day policy in the past without ramifications.3 The substantive information on the 522As, that the appellant was not cleared to return to full activities without restrictions, remained the same throughout the appellant’s recovery . IAF, Tab 6 at 48 -49, Tab 17 at 17 -21. Finally , on the appellant’s December 2016 522A , which the agency did not allege was altered , the appellant’s doctor’s office estimated that his earliest return to full duty would be in March of 2017, nine months afte r the operation. IAF, Tab 6 at 48. Thus, the agency’s argument on review does not suggest the administrative judge erred in finding that the agency believed the appellant remained eligible for limited duties. ¶14 The agency also argues that the appellant’s a bility to avoid contacting his doctor for 2 months was a private material gain real ized by his falsification. PFR File, Tab 1 at 14. The administrative judge considered this argument below but found that avoiding the hassle of either traveling to the doc tor or contacting the doctor’s office to obtain a new 522A was so minor an d intangible that it could not be considered a “material” gain. ID at 23. We agree. The definition of a “private material gain” is broad and is not limited to monetary gain . Boo, 3 The appellant submitted a form dated June 30, 2016, and then another dated August 23, 2016, which is 24 days beyond the agency’s 30 -day policy. IAF, Tab 6 at 53, Tab 7 at 12 -13, Tab 17 at 26-27. He next submitted a form dated September 30, 2016, which i s 8 days beyond the agency’s 30 -day policy. IAF, Tab 6 at 53 , Tab 17 at 30-31. He next submitted a form dated November 1, 2016, which is 2 days beyond the agency’s 30 -day policy. IAF, Tab 6 at 53, Tab 17 at 30 -31. 9 122 M.S.P.R. 100 , ¶ 13. However, intentions such as expediting a process or maintaining privacy fall outside the broad definition of “private material gain.” Id., ¶ 15 (finding that an appellant’s intent to expedite the airport screening process for an individual scheduled to meet with agency officials fell outside the broad definition of private ma terial gain) ; see Bradley v. Veterans Administration , 900 F.2d 233 , 237 (Fed. Cir. 1990) (declining to find that an appellant ’s private gain of m aintaining the privacy of his family life was material ). The avoidance of calling his medical provider out of laziness is akin to the minor and intangible gains discussed in Boo and Bradley . Moreover, n either the agency’s policy nor the appellant’s docto r required that he physically visit the doctor’s office to obtain a 522A. HT at 123 (testimony of the proposing official) , 222, 239 (testimony of the appellant); IAF, Tab 7 at 57 . What would have been required of the appellant is for him to call or email the doctor’s office to produce another 522A form. ¶15 Further, on September 19, 2016, a member of the agency’s medical staff emailed the appellant asking for an update to his medical status by November 19, 2016. IAF, Tab 16 at 66. At this time, the most rec ent 522A on file was from August 23, 2016. IAF, Tab 6 at 53. Thus, the agency would have allowed the appellant to wait until November to update his August 522A form, which would have been 58 days beyond the agency’s 30 -day policy. ¶16 Thus, the agency has fa iled to prove that, in the absence of the falsified medical forms, the appellant would not have remained on limited duty or otherwise been negatively affected by violating the agency’s policy. As such, the agency has failed to meet its burden of proving b y preponderant evidence that the appellant intended to receive a private material gain by altering the 522A forms. Because the agency failed to prove its charge, we decline to consider its arguments regarding the penalty. ¶17 The remainder of the agency’s arguments, including a heightened burden for law enforcement officers, the appellant’s potential Giglio -impairment, and 10 that falsifying medical documents is more serious than falsifying other documents, all involve the penalty determination .4 PFR File, Tab 1 at 9, 14 -17; see O’Lague v. Department of Veterans Affairs , 123 M.S.P.R. 340 , ¶ 20 (2016) (consid ering the appellant’s status as a law enforcement officer in determining the reasonableness of the penalty) , aff’d per curiam , 698 F. App’x 1034 (Fed. Cir. 2017) ; Solis v. Department of Justice , 117 M.S.P.R. 458 , ¶¶ 9-10 (2012) (discussing the agency’s consideration of an appellant’s potential Giglio impairment as an aggravating factor in assessing the penalty); Isom v. Defense Logistics Agency , 22 M.S.P.R. 79 , 82 (1984) (discussing the seriousness of falsifying a medical document in assessing the reasonableness of a penalty) , aff’d , 770 F.2d 181 (Fed. Cir. 1985) (Table) . Because we sustain the administrative judge’s determination that the agency has failed to meet its burden of proof, we need not reach those arguments. ORDER ¶18 We ORDER the agency to c ancel the removal action a nd to restore the appellant effective June 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. ¶19 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations , no l ater 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 requ ests to help it carry out the 4 Under the U.S. Supreme Court’s preced ent set forth in Giglio v. United States , 405 U.S. 150 (1972), investigative agencies must turn over to prosecutors any potential impeachment evi dence. Solis v. Department of Justice , 117 M.S.P.R. 458 , ¶ 4 n.1 (2012). The prosecutor will then exercise his discretion regarding w hether the impeachment evidence must be turned over to the defense, which could jeopardize a case in which the “ Giglio -impaired” agent is testifying. Id. 11 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 deci sion. ¶20 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶21 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a p etition 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 a gency 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). ¶22 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Bo ard 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 withi n the 60 -day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS 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 f orth 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 12 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 ap peal. 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 summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 13 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono re presentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision bef ore you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 14 race, color, religion, sex, national origin, or a disabling c ondition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can b e found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision be fore you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for w histleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 15 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 f or an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 6 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through th e link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 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. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20 Pay%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 determinatio n, 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 ea rned 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’ compen sation, 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 CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation r equired 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 Seve rance 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 amoun ts. 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 provid e 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 Ope rations at 504 -255-4630.	DIAS_JASON_T_PH_0752_18_0351_I_1_FINAL_ORDER_2045867.pdf	2023-06-30	null	PH-0752	NP
2,954	https://www.mspb.gov/decisions/nonprecedential/BURCH_MICHELLE_AT_0752_18_0053_I_1_FINAL_ORDER__2045872.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MICHELLE BURCH, Appellant, v. NATIONAL AERONAUTICS AND SPACE ADMIN ISTRATION , Agency. DOCKET NUMBER AT-0752 -18-0053 -I-1 DATE: June 30, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shaun Southworth , Esquire, Atlanta, Georgia, for the appellant. Daniel P. Shaver , Esquire , and Trevor Oktay Tezel , Kennedy Space Center, Florida, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision that reversed the appellant’s removal due to harmful procedural error. Generally, we grant petitions such as this one only in the following circumstan ces: the initial decision contains erroneous findings of material fact; the initial decision is 1 A n onprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s ruli ngs during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). Af ter fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. We AFFIRM the initial decision as MOD IFIED to reflect the proper analysis for age and disability disparate treatment discrimination claims and VACATE the administrative judge’s finding that all performance -based actions against agency employees must be imposed under chapter 43 of Title 5 of the United States Code . BACKGROUND ¶2 The appellant worked for the agency as a GS -11 Administrative Specialist. Initial Appeal File (IAF), Tab 1 at 1. On May 19, 2016, the agency proposed her removal under chapter 75 of Title 5 of the United States Code for unacceptable performance during the period of July 17, 2015 , through April 30, 2016. IAF, Tab 8 at 99 -105. The agency remove d the appellant, effective July 7, 2016. Id. at 51-62. ¶3 The appellant then filed a Board appeal contesting her removal and r aising the affirmative defenses of discrimination based on age, disability, and retaliation for prior equal employment opportunity ( EEO ) activit y. IAF, Tab 1 , Tab 23 at 2.2 2 On August 8, 2016, the appellant initiated EEO counseling and alleged that the agency discriminated and retaliated against her when it removed her. IAF, Tab 4 at 49. The appellant filed a formal EEO complaint with the agency on September 27, 2016. Id. at 69. The agency had yet to issue a final decision on the appellant’s EEO 3 After holding a hearing, the administrative judge issued an initial decision reversing the appellant’s removal, finding that the agency committed two harmful procedural errors. IAF, Tab 29, Initial Decision (ID) at 1 -6. The administrative judge first found that the agency failed to follow its own requirement of affording the appellan t a performance improvement period before taking an adverse action based on the appellant ’s unacceptable performance in one or more critical elements of her performance plan . ID at 4 -5. Second, the administrative judge determined that agency procedures r equire d all performance -based actions to be taken under chapter 43. Id. The administrative judge further found that the appellant did not meet her burden of proving any of her discrimination and retaliation affirmative defenses. ID at 6-12. The administrative judge ordered interim relief. ID at 13 . ¶4 Thereafter , the agenc y filed a petition for review. Petition for Review (PFR) File, Tab 1. The appellant responded in opposition and the agency filed a reply to the appellant’s response . PF R File, Tabs 3, 5.3 complaint at the time that she filed the instant Board appeal on October 25, 2017. I AF, Tab 1 at 6 . Because more than 120 days passed after the appellant filed her EEO complaint and the agency had not resolved the matter or issued a final decision, the appellant had the right to appeal the matter directly to the Board. 5 C.F.R. § 1201.154 (b)(2). 3 Despite having received notice in the initial decision, the agency failed to provide a certification of compliance with the interim relief ordered by the administrative judge, as required by 5 C.F.R. § 1201.116 (a). ID at 13 -14; PFR File, Tab 1. When an agency fails to provide such a certification, the Board has the discretion to dismiss a petition for review . 5 C.F.R § 1201.116 (e). On review, the appellant did not seek dismissal of the agency’s petition for review for noncompliance with the interim relief order under 5 C.F.R. § 1201.116 (d), nor did she mention i nterim re lief in any other context. PFR File, Tab 3. We need not address the agency’s failure to provide a certification of compliance with its petition for review, as the denial of its petition through this final order renders moot any dispute concernin g the matter. See Ayers v. Department of the Army , 123 M.S.P.R. 11 , ¶ 8 (2015) (holding that denial of the agency’s petition for review rendered moot any issue concerning the agency’s compliance with the interim relief order). 4 ANALYSIS The administrative judge correctly concluded that the agency commi tted a harmful procedural error warranting reversal of the appellant’s removal action. ¶5 The Board may not sustain an agency’ s decision to impose an adverse action if an appellant shows harmful error i n the application of the agency’ s procedures in arriving at that decision. 5 U.S.C. § 7701 (c)(2)(A); Doe v. Department of Justice , 123 M.S.P.R. 90 , ¶ 7 (2015). Harmful error cannot be presumed; an agency error is harmful only where the record shows that the procedural error was likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. Doe, 123 M.S.P.R. 90 , ¶ 7. An appellant bears the burden to prove this affirmative defense by preponderant evidence. Ronso v. Department of the Navy , 122 M.S.P.R. 391 , ¶ 14 (2015); 5 C.F.R. § 1201.56 (b)(2) (i)(C), (c)(1). ¶6 As previously noted, the administrative judge first found that the agency committed harmful error by failing to afford the appellant a performance improvement period before taking an adverse action based on her unacceptable performance in one or more critical elements of her performance plan . ID at 4. The National Aeronautics and Space Administration ( NASA ) Procedural Requirement s (NPR) 3430.1C, NASA Employee Performance and Communication System, Chapter 4, which the agency provided for the record and was in effect at the time of the appellant’s removal, states in relevant part: 4.9 Perf ormance in one or more critical elements that Fails to Meet Expectations shall be the basis for an action to reassign the employee or initiate an adverse action (e.g., reduction in grade or removal) against the employee, but only after the employee has bee n given a period of time to improve his/her performance. The minimum Performance Improvement Period (PIP) is 30 calendar days. IAF, Tab 8 at 17. Chapter 5 of the same procedural requirements states: 5.13.1.1 When it is determined that an employee’s p erformance Fails to Meet Expectations in one or more critical elements, management must take corrective action to improve the employee’s performance. The employee must be placed on a Performance Improvement Plan 5 (PIP) and given a reasonable opportunity (a minimum of 30 days) to demonstrate acceptable performance. If after a reasonable opportunity period to improve, an employee fails to raise performance in a critical element to an acceptable level, then action must be taken to remove the employee from tha t positio n (5 C.F.R. [part] 432) (refer to NPR 3432.1, Performance Based Reduction in Grade or Removal Actions). Id. at 25 -26. ¶7 In this case, it remains undisputed that the agency did not afford the appellant any performance improvement period before in itiating the process to remove her for unacceptable performance under chapter 75. Many of the instances of unacceptable performance cited as the basis for the appellant’ s removal relate to her performance under Critical Elements 1, 2, and 3 of her perform ance plan. IAF, Tab 7 at 15 -36, Tab 8 at 52-58, 99-103. As the agency points out on review, an employee subject to a perform ance -based action under chapter 75 has no statutory right to a performance improvement period. PFR File, Tab 1 at 12; see Madison v. Defense Logistics Agency , 48 M.S.P.R. 234 , 239 (1991). Notwithstanding, an agency is still required to follow its internal regulation s and procedures, even if it afford s an employee greater protections than required under statute . See Dwyer v. U.S. Postal Service , 32 M.S.P.R. 181, 185 (1987 ) (stating that the B oard will enforce employee rights derived from the agency rules, regulations, procedures and negotiated collective bargaining agreements). Despite the agency’s claims on review that its procedural requirement s only apply to actions taken under chapte r 43, there is no su ch restriction outlined in the NPR or any other evidence in the record to support this proposition.4 IAF, Tab 8 at 17, 25 -26; PFR File Tab 1 at 8-11, Tab 5 at 8 -11. We 4 While the NPR does cite to 5 C.F.R. part 432, there is nothing to contradict the clear language in the relevant p ortions of the NPR that require the agency t o provide an employee with a performance improvement period before taking any adverse action based on the employee’s unacceptable performance in one or more critical elements of her performance plan , regardless if the action is taken under chapter 43 or 75 . IAF, Tab 8 at 17, 25 -26. 6 reiterate that the relevan t portions of the NPR state that it applies before an agency initiates an “adverse action.” IAF, Tab 8 at 17. Chapter 75 is titled “Adverse Actions” and this term is synonymous with actio ns taken under this chapter. 5 U.S.C. c hapter 75; 5 C.F.R. p art 75 2. Therefore, the agency committed a procedural error by failing to follow its own requirement of affording the appellant a performance improvement period of at least 30 calendar days before taking this performance -based action. ¶8 Such error was harmful to the appellant, as it is more likely than not that the agency’s failure to follow its procedures led to a different result on the appellant’s removal than it would have had the agency a bided by its requirements. The administrative judge found that the app ellant credibly testified at the hearing that she did not have any notice that her job was in jeopardy prior to receiving the proposal to remove. Hearing Compact Disc ( HCD ) (testimony of the appellant); ID at 6 n.3. The appellant had approximately 25 years of G overnment service at the time of her removal , with no notable performance issues. IAF, Tab 1 at 1. The evidence of record supports the appellant’s testimony, as she received an “accomplished” performance rating in 2015 and her mid -year progress review in 2016 did not outline any i ssues with her performance that needed to be corrected under the threat of administrative action. IAF, T ab 7 at 4, 12 -14, Tab 21 at 131-132. Had the agency provided a performance improvement period as required by its o wn procedures, it would have likely provided the appellant with clear detail on what was expected of her , the possible consequences if her performance did not improve, and supervisory assistance and engagement t hat she seemingly did not receive prior to he r proposed removal. HCD (testimony of the appellant). We find that it is more likely than not that , had the appellant been given an opportunity to improve her performance , she would have done so. ¶9 Accordingly, the administrative judge correctly foun d th at the appellant proved by preponderant evidence that the agency committed a harmful procedural error, warranting reversal of her removal. See Canary v. U.S. Postal Service , 7 119 M.S.P.R. 310 , ¶ 12 (2013) (holding that the agency’s harmful procedural error required reversal of the contested action). We need not consider the agency’s argument s on review pertaining to the merits of the appellant’s removal action. PFR File, Tab 1 at 13-26; see Marchese v. Department of the Navy , 32 M.S.P.R. 461 , 463 (1987) (finding that , after determining that the agency committed a harmful procedural error, the merits of the appeal were rendered moot). ¶10 The administrative judge also found that the agency committed a second harmful procedural er ror when it removed the appellant for unacceptable performance under chapter 75. ID at 4. Upon review, we find that it was n ot proven by preponderant evidence that the agency’s procedural requirements mandate that all performance -based actions be taken u nder chapter 43. Thus , we vacate this finding . While the administrative judge properly concluded that the appellant failed to prove the discrimination and EEO retaliation affirmative defenses, the initial decision is modified to clarify the correct standard for analyzing her age and disability disparate treatment discrimination claims. ¶11 In her appeal, the appellant raised the affirmative defenses of discrimination based on her age, disability, and retaliation for prior EEO activity. IAF, Tab 1 at 6, Tab 23 at 2.5 The administrative judge held in the initial decision that the appellant failed to meet her burden of proving any of these affirmative defenses by prepon derant e vidence.6 ID at 6 -12; see 5 C.F.R. 5 The appellant’s theories of disability discrimination consisted of the agency failing to provide her with a reasonable accommodation and treating her disparately based on her disability. HCD (testimony of the appellant). 6 In her initial appeal and prehearing submission, the appellant raised the affirmative defense of retaliation for requesting a reasonable accom modation. IAF, Tab 1 at 6, Tab 22 at 4. The administrative judge did not include this as an issue for adjudicati on in the prehearing conference summary nor did he render findings on the claim in the initial decision. IAF, Tab 23 at 2; ID at 6 -12. The appellant did not object to the administrative judge not including this as an issue to be determined at hearing nor does she mention it on review. PFR File, Tab 3. After applyin g the factors outlined in 8 § 1201.56 (b)(2)(i)(C). On review, neither party contests these findings. PFR File, Tabs 1, 3, 5. ¶12 While we agree with the overall conclusion reached by the administrative judge on these affirmative defenses , we modify the analysis of the age and disability disparate treatment discrimination claims . In the initial decision, the administrative judge appropriately evaluated the evidence regarding both of these claims under the framework set forth McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). ID at 7, 77; see Pridgen v. Office of Management and Budget , 2022 MSPR 31 , ¶ 25. However, the Board explained in Pridgen that a Federal employee proves age and disability disparate treatment discrimination by establishing that the prohibited considerations of age and disability were motivating factors in the challenged action. 2022 MSPB 31 , ¶¶ 20 -22, 40. If an appellant makes such a showing, she may be entitled to injunctive and other “forward -looking relief.” Id., ¶ 22. To obtain the full measure of relief available, including status quo ante relief and compensatory damages , however, an appellant asserting age or disability discrimination must show that such considerations were a but-for cause of the employment outcome. Id., ¶¶ 22, 40 (citing Babb v. Wilkie , 140 S. Ct. 1168 , 1171, 1177 -78 (2020) ). ¶13 Because the factual record is fully developed on the appellant’s age and disability disparate treatment discrimination claims, there is no need for a r emand for further adjudication. Regarding the appellant’s age discrimination claim, the administrative judge observed that the appellant offered no testimony or evidence proving that management officials were aware of her age, and thus, pr operly found that she failed to prove by preponderant evidence that the removal action was motivated by animus based on age. ID at 8. We agree that the appellant failed to meet the motivating factor standard in this regard. Concerning the Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶ 18, w e find that the appellant effectively abandoned this affirmative defense and that a remand for consideration of the claim is, therefore, unnecessary , see id., ¶ 28 . 9 appellant’s disability disparate treatment discrimination claim, the appellant has not set forth any evidence showing that her disability played a part in the agency’s decision to remove her. Therefore, we find that the appellant failed to prove that her disability was a motivating factor in the removal action . Because the appellant has failed to meet the lower causation standard of motivating factor for her age and disability disparate treatment discrimination claims, we need not determine whether she proved by prepon derant evidence that these prohibited considerations were but -for causes of the agency action. See Pridgen , 2022 MSPB 31 , ¶ 48 (acknowledging that the motivating factor standard is a lower standard of causation than the but -for causation standard). ORDER ¶14 We ORDER the agency to cancel the removal action and to retroactively restore the appellant , effective July 7, 2016. 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 d ate of this decision. ¶15 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, as appropriate, 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 O rder. 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. ¶16 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). 10 ¶17 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Boa rd’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182 (a). ¶18 For agencies whose payroll is administered by either the National Fin ance 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 APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS 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 m ust 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. 11 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 Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filin g time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicia l review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 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. 12 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit , you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor war rants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to t he Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. distri ct court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 13 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appoi nted lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed thro ugh the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your d iscrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washi ngton, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW 12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 14 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no chal lenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review e ither 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 “Gu ide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 8 The original statutory provision that provided for judicial review of certain whist leblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decis ions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 15 Board neither endorses the services provided by any attorney nor warr ants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 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 f ound at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx . NOTE: Attorneys’ fees or other non -wage payments (such as damage s) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the ba ck 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 docume ntation is not applicable: ☐ 2) Settlement agreement, administrative dete rmination, arbitrator award, or order. ☐ 3) Signed and completed “Empl oyee 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 D FAS 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 employmen t. 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 severa nce pa y 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 ke ep 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 se parate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK 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 mus t 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 Diffe rential, 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 agen cy. 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, certi fication 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 com putation 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.	BURCH_MICHELLE_AT_0752_18_0053_I_1_FINAL_ORDER__2045872.pdf	2023-06-30	null	AT-0752	NP
2,955	https://www.mspb.gov/decisions/nonprecedential/SINCLAIR_SYLVESTER_AT_0752_22_0108_I_1_FINAL_ORDER_2045874.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SYLVESTER SINCLAIR, JR., Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency. DOCKET NUMBER AT-0752 -22-0108 -I-1 DATE: June 30, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Georgia A. Lawrence , Esquire, and Shaun Southworth , Esquire, Atlanta, Georgia, for the appellant. Christopher R. Lopez , Esquire, Des Plaines, Illinois, 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 from his position as an Air Traffic Control Specialist based on charges of (1) unavailability for regular, full -time duty and (2) failure 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 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 maintain medical clearance. For the reasons discussed below, we GRANT the appellant’s petition for review. We REVERSE the initial decision in part to find that the agency violated the appellant’s due process rights , AFFIRM as MODIFIED the initial decision in part to clarify the legal standards applicable to the appellant’s disability discrimination affirmative defenses, and DO NOT SUSTAIN the appellant’s removal . BACKGROUND ¶2 Effective December 29, 2017, the agency removed the appellant from his position as an Air Traffic Control Specialist based on charges of (1) unavailability for regular, full -time duty and (2) failure to maintain medical clearance. Initial Appeal File (IAF ), Tab 6 at 68 -74, 84 -86. Regarding the former charge, the agency alleged that the appellant had not reported for regular, full-time duty since May 8, 2015. Id. at 84. Regarding the latter change, the agency alleged that the appellant had been rendered medically disqualified for air traffic control duties effective April 19, 2016, and that he had not challenged this determination. Id. at 84, 87-88. Both t he agency’s notice of proposed removal and decision letter referenc ed the agency’s unsuccessful eff orts to locate another position to which the appellant could be reassigned. Id. at 70, 85. Following his removal, the appellant filed a formal equal employment opportunity complaint alleging that the agency had discriminated against him by (1) failing to provide him with a reasonable accommodation and (2) removing him from his position . Id. at 11-12, 31-34. In a final agency decision issued on November 12, 2021, the agency made a finding of no discrimination as related to the appellant’s removal. Id. at 11-30. ¶3 On December 12, 2021, the appellant filed the instant appeal with the Board challenging the agency’s removal action. IAF, Tab 1. He requested a hearing on the matter. IAF, Tab 5 at 4, Tab 11 at 3, 7. The appellant alleged before the administ rative judge that the agency had engaged in disability discrimination 3 (failure to accommodate and disparate treatment). IAF, Tab 1 at 5, Tab 20 at 6. He also alleged that the agency had violated his due process rights because (1) the deciding official al so served as the proposing official and (2) the agency had improperly relied on ex parte information regarding searches conducted for a vacant position for the appellant . IAF, Tab 18 at 4, Tab 25 at 15 -18. The administrative judge informed the appellant of the applicable evidentiary burdens for these affirmative defenses. IAF, Tab 20 at 4-10. ¶4 Following a hearing conducted via Zoom for Government, the administrative judge issued an initial decision affirming the agency’s removal action. IAF, Tab 26, Init ial Decision (ID) at 1, 25. In so doing, she found that the agency proved the charges of (1) unavailability for regular, full -time duty and (2) failure to maintain medical clearance2 by preponderant evidence and had 2 The administrative judge considered the agency’s charge of “failure to maintain medical clearance” as “ tantamount to a charge of medical inability to perform ,” and analyzed the charge accordingly i n the initial decision. IAF, Tab 20 at 2; ID at 7, 10-12. We discern no error with her characterization of this charge. When an agency controls the withdrawal or denial of its certification of an employee’ s fitness or other qualification for a position, the Board’ s authority generally extends to a review of the merits of that withdrawal or revocation . Adams v. Department of the Army , 105 M.S.P.R. 50 , ¶ 10 (2007), aff’d, 273 F. App’ x 947 (Fed. Cir. 2008) . Indeed, the Board has previously found that it can review the validity of a Federal Aviation Administration medical decertification in an adverse action appeal. E.g., Cosby v. Federal Aviation Administration , 30 M.S.P.R. 16 , 17-19 (1986). In analyzing this charge, however, the administrative judge relied o n the standard set forth in Sanders v. Department of Homeland Security , 122 M.S.P.R. 144 , ¶ 11, aff’d , 625 F. App ’x 549 (Fed. Cir. 2 015). ID at 10 -12. Following the issuance of the initial decision, the Board determined that this standard applies only when an employee who occupies a position with medical standards is removed based solely on medical history, i.e., when the only basis for concluding that the employee was medically unable to perform the core duties of his position was the fact that his medical records reflected that, at some time in the past, he was classified as having, was examined for, or was treated for the medical c ondi tion or impairment in question. Haas v. Department of Homeland Security , 2022 MSPB 36 , ¶¶ 10-15. The Board clarified that, in cases , as here, involving a current medical condition, the agency must establish that the appellant’s medical condition prevents him from being able to safely and efficiently 4 satisfied the nexus requirement. ID at 9-13. She also found that the appellant failed to prove the aforementioned affirmative defenses and that, given the nature of the agency’s charges, removal was warranted . ID at 13-24. ¶5 The appellant has filed a petition for review, and the agency has filed a response. Petition for Review (PFR) File, Tabs 1, 3. In his petition, the appellant argues that (1) the agency violated his due process rights and (2) the agency engaged in failure to accommodate disability discrimination. PFR File, Tab 1 at 4-20. DISCUSSION OF ARGUME NTS ON REVIEW We reverse the initial decision in part to find that the agency violated the appellant’s due process rights . ¶6 The appellant argues that the agency violated his due process rights. PFR File, Tab 1 at 6 -10. To this end, he contends that the deciding official improperly relied on material ex parte information in deciding to remove him, i.e., information regarding searches conducted by the agency for a vacant position to which he could be reassigned . Id. He avers that, although he was notified about one job search, the agency failed to inform him about the “particularities of other job searches” despite his requesting this information. Id. at 6-8. For the reasons discussed herein, w e agree that the agency violated the ap pellant’s due process rights and we reverse the agency’s removal action .3 perform the core duties of his position . Id., ¶ 15 & n.3. This clarificatio n is not material to the outcome of this appeal. 3 As indicated, the appellant also alleged before the administrative judge that the agency violated his due process rights because the same person served as both the proposing official and the deciding offi cial; however, the administrative judge found this claim unavailing. IAF, Tab 18 at 4, Tab 20 at 4; ID at 14 n.2. To the extent the appellant reasserts this claim on review, PFR File, Tab 1 at 7, we also find it unavailing, see Hidalgo v. Department of J ustice , 93 M.S.P.R. 645 , ¶ 16 (2003) (explaining that the Board has held that the proposing official and the deciding official may be the same person in a chapter 75 proceeding ). 5 ¶7 Before taking an appealable action that deprives a tenured Federal employee of his property right in his employment, an agency must provide him w ith minimum due process of law. Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 543 -46 (1985). Due process entitles the employee to oral or written notice of the charges against him, an explanatio n of the employer’ s evidence, and an opportunity to present his side of the story. Id. at 546 ; see 5 U.S.C. § 7513 (b). In determining whether these requirements have been met, the Board analyzes whether a notice of proposed removal, along with the supporting documentation attached thereto and contemporaneously provided to the appellant, afforded him sufficient notice of the charges against him to enable him to make a me aningful reply to the propos al. See Alvarado v. Department of the Air Force , 97 M.S.P.R. 389 , ¶ 8 (2004). ¶8 The Board also looks to whether new an d material information was introduced by means of an ex parte communication to the deciding official . Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1376 -77 ( Fed. Cir. 1999). Pursuant to the U.S. Court of Appeals for the Federal Circuit’ s decisions in Stone and Ward v. U.S. Postal Service , 634 F.3d 1274 , 1279 (Fed. Cir. 2011) , a decidin g official violates an employee’ s due process rights when he relies on new and material ex parte information as a basis for his decisions on the merits of a proposed charge or the penalty to be imposed. The Board will consider the following factors, among others, to determine whether an ex parte contact is constitutionally impermissible: (1) whether the ex parte communication merely introduces “cumulative” information or new information; (2) whether the employee knew of the error and had a c hance to respond to it; and (3) whether the ex parte communications were of the type likely to result in undue pressure upon the deciding official to rule in a particular manner. Stone , 179 F.3d a t 1377. When a procedural due process violation has occurr ed, such a violation is not subject to the harmless error test ; rather, the appellant is entitled to a new constitutionally correct administrative procedure. Id. 6 ¶9 Here, the agency’s August 21, 2017 notice of proposed removal stated, in pertinent part, that the appellant had been medically disqualified from his Air Traffic Control Specialist position since April 2016. IAF, Tab 6 at 84. The notice explained that “[t]he [agency’s] policy is to assist, to the extent possible, the continued employment for empl oyees who are found medically disqualified from their present position, but may still be qualified for other positions in the [a]gency.” Id. at 85. The notice indicated that , on June 14, 2016, the agency had received the appellant’s requested job paramete rs and conducted an unsuccessful search for a vacant position based on the information he provided ; however , “as of August 4, 2016,” no vacant positions were available for him. Id. The notice also stated that the agency had conducted “a [second] job search, [Federal Aviation Administration (FAA)] and [Departmen t of Transportation (DOT)] wide .” Id. ¶10 In response to the notice of proposed removal, the appellant averred that he had not been provided information regarding the agency’s job searches , to inc lude the results thereof, and that the agency had not included this information in the list of the materials relied upon in the notice of proposed removal. Id. at 52-53, 86. Accordingly, the appellant requested information regarding both of the agency’s job searches along with a list of “ all FAA and DOT Jobs Government wide, which have been hired within the FAA and DOT Whether Temporaily Detailed and/or made permanent for hire, from the period of May 8th 2015 until present date .” Id. at 52-53 (grammar , punctuation , and spelling in original). ¶11 On Decemb er 20, 2017, the agency issued its decision on the proposed removal , again stating that the agency had conducted two unsuccessful job searches for a position for the appellant . Id. at 54-59. The decision letter acknowledged the appellant’s request for information regarding the searches ; however, the letter stated that, if the appellant “would like to request information regarding FAA and DOT jobs [] from the period of May 8, 2015 to the present ,” he could “submit a formal request to the Freedom of Information Act (FOIA) 7 Coordinator.” Id. at 54-55. In other words, the decision letter indicated that the agency had not provided the appellant with any additional information regarding the job searches prior to effecting his removal; rather, upon effecting his removal, it informed him that he could seek publicly available information via a FOIA request . Id. ¶12 The appellant has not disputed that he is medically unable to perform the duties of his Air Traffic Con trol Specialist positon; thus, the contested issue underlying the agency’s n ondisciplinary removal action i s whether the appellant could be reassigned to another position. In cases involving a medical inability to perform, the agency’s ability to reassign an employee to a vacant position for which he is qualified goes to the reasonableness of the penalty. Clemens v. Department of the Army , 120 M.S.P.R. 616 , ¶ 5 (2014). Although the notice of proposed removal referenced two unsuccessful job searches , the agency declined the appellant’s request for information regarding these searches , e.g., whether the searches had yielded any vacant positions and, if so, why the agency had determined that the appellant was unqualified or otherwise ineligible for such positions . IAF, Ta b 6 at 54-55, 85. Given the circumstances, we find that the agency’s failure to provide this information precluded the appellant from meaningfully responding to the agency’s proposed action and amounted to a violation of his due process rights. See Chene y v. Department of Justice , 479 F.3d 1343 , 1353 (Fed. Cir. 2007) (concluding that an employee had not been provided with the opportunity to make a meaningful response to the agency’s notice of proposed suspension when the appellant was left to guess at the reasons for his security clearance suspension ); see also O’Keefe v. U.S. Postal Service , 318 F.3d 1310 , 1315 (Fed. Cir. 2002) (concluding that, because due process requires that an employee be given notice of the charge and specifications against him in sufficient detail to allow the employee to make an informed reply, it was a due process violat ion to justify a penalty based on allegations not set forth in the notice of proposed removal ). To this end , the agency’s second job search, which 8 concluded in November 2016, yielded vacant FAA Support Specialist positions; however, agency personnel deter mined that the appellant could not be reassigned to these positions because they were not equivalent to his Air Traffic Control Specialist position. IAF, Tab 13 at 97. The appellant, h aving not received any contemporaneous information regarding his consideration for these positions , was unable to address the agency’s determination in this regard prior to his removal . Moreover , despite indicating in both its no tice of proposed removal and its decision letter that it had conducted two unsuccessful job searches for the appellant, the agency has since acknowledged that it actually conducted four job searches.4 E.g., PFR File, Tab 3 at 6; IAF, T ab 6 at 6, 55, 85, Tab 13 at 4, Tab 14 at 81. ¶13 We also find that the deciding official considered mater ial, ex parte information in violation of the appellant’s due process rights . To this end , on September 22, 2017, i.e., approximately 1 month after the issuance of the notice of proposed removal, an agency Human Resources Specialist and an agency Labor Employee Relations Specialist retroactively considered whether the appellant was qualified for a Staff Support Specialist position for which the vacancy announcement closed on September 21, 2017 . ID at 7; IAF, Tab 16 at 78-84, Tab 19 at 47-48. Notably, the deciding official testified that he too considered whether the appellant was qualified for t his position. Hearing 4 As set forth in the initial decision, the first job search, which began in June 2016, apparently yielded no results. ID at 3 -4; IAF, Tab 13 at 81, Tab 14 at 81. The second search, which concluded in Novem ber 2016, yielded the above -discussed vacant Support Specialist positions. ID at 5; IAF, Tab 13 at 97. The third search was precipitated by March 22, 2017 advice from agency counsel regarding the inadequacy of the first two searches. IAF, Tab 19 at 45 -46. To this end, counsel advised the agency that the first two searches should not have been restricted to the FAA; rather, they should have been conducted DOT -wide. ID at 5-6; IAF, Tab 19 at 45. In response to this advice, the agency undertook a more ex pansive retroactive search. IAF, Tab 15 at 19, Tab 19 at 45, 50. As discussed in greater detail herein, the fourth search, which was also retroactive, occurred in September 2017, i.e., after the issuance of the notice of proposed removal but prior to the issuance of the decision letter. 9 Transcript (HT) at 134-35, 153 -54 (testimony of the deciding official). Indeed , the deciding official testified that he and the agency’s Labor and Employee Relations Specialist “had conversations about the availability of the position and the requirements of the position” and that the two “both came to the same conclusion that due to the [appellant’s] medical diagnosis and the responsibilities of the job, that it would not be a proper fit.” HT at 153 (testimony of the deciding official). The deciding official acknowledged that, had the appellant been found qualified , he would have be en given the position, i.e., he would not have been removed from Federal service. HT at 162-63 (testimony of the deciding official). The appellant, however, did not learn that the agency had considered him for this position until after his removal . HT at 254-56 (testimony of the appellant). We find that this information constituted constitutionally impermissible new and material ex parte information . See Stone , 179 F.3d at 1377 . Indeed, when a deciding official admits that ex parte information influe nced his penalty determination, the information in question is clearly material. Silberman v. Department of Labor , 116 M.S.P.R. 5 01, ¶ 12 (2011). ¶14 Because we find that the agency violated the appellant’s due process rights, we reverse the initial decision in part and do no t sustain the agency’s removal action . Even when the underlying action is overturned on procedural grounds, however, the Board must decide the discrimination issue s raised in an appeal ; accordingly, we herein consider the appellant’s disability discrimination claims .5 Schibik v. Department of Veterans Affairs , 98 M.S.P.R. 591, ¶ 11 (2005 ). 5 Because we reverse the agency’s removal action, we need not address the appellant’s other remaining claims, including his contention that the agency committed harmful procedural error. PFR File, Tab 1. 10 We affirm the administrative judge’s conclusion that the appellant failed to prove his claim of disp arate treatment disability discrimination; however, we clarify the legal standard for this claim. ¶15 The appellant argued before the administrative judge that the agency engaged in disparate treatment disability discrimination; however, he does not discernabl y raise any arguments regarding this claim on review. PFR File, Tab 1; IAF, Tab 20 at 6. We discern no basis to disturb the administrative judge’s conclusion that the appellant failed to prove this claim ; however, we take this opportunity to clarify the applicable legal standard therefor . ID at 23-24. ¶16 Following the issuance of the initial decision, the Board clarified that an appellant who proves that disability discrimination was a motivating factor in the contested personnel action may be entitled to i njunctive or other “forward -looking” relief, but to obtain the full measure of relief, including status quo ante relief, compensatory damages, or other forms of relief related to the end result of an employment decision, the appellant must show that discri mination was a “but -for” cause of the action. Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 22, 40, 42. Here, the administrative judge concluded that the appellant had failed to identify evidence of discriminatory animus on part of the agency, and we discern no basis to disturb this conclusion. ID at 23 -24. Accordingly, we need not reach the question as to wheth er the appellant proved that discrimination was a but -for cause of the agency’s decision to remove him. We affirm the administrative judge’s conclusion that the appellant failed to prove his claim of failure to accommodate disability discrimination. ¶17 The ap pellant raises a series of challenges regarding the administrative judge’s conclusion that he failed to prove his affirmative defense of failure to accommod ate disability discrimination. PFR File, Tab 1 at 5-20. To this end , he challenges the administrat ive judge’s conclusion that he was medically unable to perform the essential functions of a particular vacant position and he avers that the agency failed to engage in the interactive process. Id. at 5-6, 14 -15. We find that these arguments do not warran t a different outcome . 11 ¶18 An agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship o n its business operations. Miller v. Department of the Army , 121 M.S.P.R. 189 , ¶ 13 (2014); 29 C.F.R. § 1630.9 (a). Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disabilit y to perform the essential job functions. Miller , 121 M.S.P.R. 189 , ¶ 13. In order to establish disability discrimination based on a failure to accommodate , an employee must show the following : (1) he is an individual with a disability, as define d by 29 C.F.R. § 1630.2 (g); (2) he is a qualified individual with a disability, as defined by 29 C.F.R. § 1630.2 (m); and (3) the agency failed to provide a reasonable accommodation. Id. ¶19 Here , we find no basis to disturb the administrative judge’s co nclusion that the appellant failed to satisfy the definition of a “qualified” individual under 29 C.F.R. § 1630.2 (m);6 thus, he necessarily failed to show that the agency engaged in failu re to accommodate disability discrimination . ID at 18-23; see Haas v. Department of Homeland Security , 2022 MSPB 36 , ¶ 28 (explaining that 6 The ap pellant draws the Board’s attention to the fact that the administrative judge stated that, because the appellant was medically unable to perform the duties of an Air Traffic Control Specialist with or without a reasonable accommodation , he failed to show t hat he is a qualified individual with a disability “for the [Air Traffic Control Specialist] position .” PFR File, Tab 1 at 12; ID at 19. Because this statement may have elicited confusion, we modify the initial decision to clarify that , in analyzing whether an employee has shown that he is a qualified individual with a disability, the Board must consider not only whether there was a reasonable accommodation that would have enabled the employee to perform the essential functions of his position, but also whether the agency could have accommodated the employee via reassignment. See Desjardin v. U.S. Postal Service 2023 MSPB 6 , ¶ 28. Here, insofar as the administrative judge also properly considered whether the agency could have reassigned the appellant, a different outcome is not warranted. ID at 19-23; see Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984). 12 a claim of disability discrimination based on an agency’s failure to reasonably accommodate that disability requires that the individual be a qualified individual with a disability ). ¶20 An appellant can establish that he is a qualified i ndividual with a disability by showing that he can, with or without accommodation, perform either the essential functions of his position of record or those of a vacant funded position to which he could be assigned . Desjardin v. U.S. Postal Service , 2023 MSPB 6 , ¶ 28; see 29 C.F.R. § 1630.2 (m). On review, t he appellant does not challenge the administrative judge’s conclusion that he is medically unable to perform the essential duties of his Air Traffic Control Specialist, i.e., his position of record . PFR File, Tab 1; ID at 18-19. Moreover, we find that he has not presented a basis to disturb her conclusion that he failed to identify a vacant position to which the agency could have reassigned him. ID a t 19-23; see Massey v. Department of the Army , 120 M.S.P.R. 226, ¶ 12 (2013) ( explaining that, as part of a failure to accommodate affirmative defense, the appellant has the burden of establishing the existence of a position to which he could have been reassigned) . Indeed, discussed in the initial decision, the appellant identified eight potential positions that were vacant during the relevant timeframe. ID at 21; IAF, Tab 19 at 8. The appellant provides no basis to disturb the admini strative judge’s conclusion that his reassignment to seven of these eight positions would have constituted a promotion.7 ID at 21; see Gonzalez -Acosta v. Department of Veterans Affairs , 113 M.S.P.R. 277, ¶ 14 (2010) (explaining that an agency is not required to 7 On review, the appellant argues that agency policy and the applicable collective bargaining agreement required the ag ency to reassign him to any vacant position for which he was qualified, regardless of whether the reassignment would result in a promotion. PFR File, Tab 1 at 5, 11. This claim of harmful procedural error, however, is unavailing for purposes of his disab ility discrimination affirmative defense. See Taylor v. Department of Homeland Security , 107 M.S.P.R. 306 , ¶ 8 (2007) (explaining that the Rehabilitation Act does not require an a gency to promote an individual in order to provide reasonable accommodation ). 13 promote an individual in order to provide reasonable accommodation ). Moreover he does not provide a basis to disturb the administrative judge’s conclusion , which was based in part on credibility determinations, that his medical restrictions precluded him from performing the essential functions of the eighth position. ID at 22; see Purifoy v. Department of Veterans Affai rs, 838 F.3d 1367 , 1372 -73 (Fed. Cir. 2016) (finding that the Board must defer to an administrative judge’s demeanor -based credibility determinations, “[e]ven if demeanor is not explicitly discussed”) . To the extent the appellant reasserts that the agency should have expanded its search parameters , his contention is unavailing ; indeed, as set forth in the initial decision, it was ultimately the appellant’s burden to show the existence of a vacant position to which he could have been reassigned. ID at 22; see Jackson v. U.S. Postal Service , 79 M.S.P.R. 46, 54 (19 98) (clarifying that the agency’ s failure to look for a position as a reasonable accommodation does not relieve the appellant of the burden of ultimately showing that such positions existed and were available) . ¶21 The appellant argues that the age ncy failed to engage in the interactive process. E.g., PFR File, Tab 1 at 5 -6. However, the Board has found that an agency’s failure to engage in the interactive process alone does not violate the Rehabilitation Act; rather , the appellant must show that this omission resulted in failure to provide reasonable accommodation. Gonzalez -Acosta , 113 M.S.P.R. 277, ¶ 16 ; see Paris v. Department of the Treasury , 104 M.S.P.R. 331 , ¶ 24 (2006) (explaining that, t o rule in favor of an employee on a disability discrimi nation claim merely because he has “articulated” a reasonable accommodation not only relieves the employee of his burden of proof, but can lead to an unenforceable decision ). The appellant has not made such a showing.8 8 We have considered the appellant’s remaining arguments, including his claim that the administrative judge either misinterpreted or failed to consider certain evidence in the record; however, we find these claims unavailing. PFR File, Tab 1 at 18 -20; see Marques v. Department of Health and Human Services , 22 M.S.P.R. 129 , 132 (1984 ) 14 Accordingly , we find that he failed to prove his claim of failure to accommodate disability discrimination.9 ORDER ¶22 We ORDER the agency to cancel the removal action and restore the appellant effective December 29, 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. ¶23 We also ORDER the agency to pay the appellant the cor rect amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s re gulations , 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 benef its, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days af ter the date of this decision. ¶24 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). (explaining that an administrative judge’s failure to disc uss all of the evidence of record does not mean that the evidence was not considered), aff’d , 776 F.2d 1062 (Fed. Cir. 1985) (Table). 9 We acknowledge the apparent conflict of finding both that the agency violated the appellant’s due process rights by failing to provide him with material information regarding its job searches and that the appellant failed to identify a vacant position to which he could have been reassigned, i.e., that the job searches failed to yield a vacant position. However, as ind icated, a due process violation is not subject to the harmful error test; indeed, an appellant subject to such a violation is automatically entitled to a new, constitution ally correct removal proceeding . Ward , 634 F.3d at 1279. 15 ¶25 No later t han 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 di d 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). ¶26 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Serv ice (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 APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS 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. 16 NOTICE OF APPEAL RIG HTS10 The initial decision, as supplemented by this Final Order, constitutes the Board’s final dec ision 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 th eir jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropria te one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 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 If you submit a petition for review to t he U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases invol ving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action inv olves a claim of discrimination based on 18 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other securi ty. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request f or review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 19 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice describ ed in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 inform ation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 11 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 for Merit Systems Protection Board appellants before the 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 fo r the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR TH E BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 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. Missin g 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 d amages) 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 c ompleted “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 und ertaken 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 annu ity 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). 2 NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK 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 intere st 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 amoun ts. 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 provid e 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.	SINCLAIR_SYLVESTER_AT_0752_22_0108_I_1_FINAL_ORDER_2045874.pdf	2023-06-30	null	AT-0752	NP
2,956	https://www.mspb.gov/decisions/nonprecedential/SOLOMON_LAMEIA_DA_3330_16_0161_I_1_FINAL_ORDER_2045892.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LAMEIA SOLOMON, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DA-3330 -16-0161 -I-1 DATE: June 30, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lameia Solomon , Choctaw, Oklahoma , pro se. Brandi M. Powell , New Orleans, Louisiana, for the agency. Ouida F. Adams , Shreveport, Louisiana, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed in part her appeal under the Veterans Employment Opportunities Act of 1998 (VEOA) for lack of jurisdiction and denied her request for corrective action 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 as to her remaini ng claims . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 Effective November 2, 2014, the agency appointed the appellant to the position of Voucher Examiner, GS -6, under Vacancy Announcement FG -14-TS- 1179158 -BU, at the agency’s Alexandria, Virginia Medical Center. Initial Appeal File (IAF), Tab 1 6 at 7 . The agency’s let ter notifying the appellant of this appointment indicated that it was a career -conditional appointment, IAF, Tab 1 6 at 5, but the Standard Form 50 (SF -50) issued shortly thereafter indicated that the appointment was made to the excepted service pursuant to the Veterans Recruitment Appointment (VRA) authority ,2 id. at 7. ¶3 Over the course of the following year, the appellant applied for several positions within the agency . IAF, Tab 2 at 34-53, 60-65; Tab 8 at 8 . For two of the positions, the appellant submitted applications before the agency issued the vacancy announcements. IAF, Tab 2 at 17, 26, 34 -53, 60 -65. Nonetheless, the 2 38 U.S.C. § 4214 is the statutory authority for VRA appointments. 3 agency considered her applications but determined that she lacked the level of special ized experience required for the positions. Id. at 64 -65; IAF, Tab 8 at 28, Tab 45 at 5 -6. For a third application, the agency considered her submission, but found that she lacked any background in clinical administration as required by the vacancy annou ncement. IAF, Tab 3 at 4, Tab 37 at 8. For the fourth available position , the agency already had determine d that the appellant was not qualified for the job when it reviewed her application prior to the vacancy announcement. IAF, Tab 21 at 3, 6 -10. Thus, the appellant was not selected for any of the four positions. ¶4 In Decem ber 2015, the appellant filed a VEOA appeal with the Board arguing that the agency deterred her from applying for other vacancies when it changed her initial appointment from a career -condition al appointment to an excepted -service appointment under the VRA and that it was inconsistent in its statements of eligibility criteria for other positions . IAF, Tab 1 at 5, Tab 8 at 2 -3; Tab 16 at 3 -7. The appellant filed several submissions co ncerning the vacancies, her communication s with agency employees, and her applications. IAF, T abs 1 -4, 8-10, 16, 18, 21. Subsequently , the administrative judge issued orders on whether the Board had jurisdiction over the appeal under either the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301 -4335) (USERRA) or the Whistleblower Protection Enhancement Act of 2012 (WPEA). IAF, Tabs 32 -33. ¶5 The appellant responded to the USERRA jurisdictional order , again claiming that the agency unlawfully altered her SF-50 for the Voucher Examiner appointment to show that she received a VRA appointment , which hindered her ability to be consider ed for other vacancies. IAF, Tab 38 at 3. In response to the WPEA jurisdictional order, the appellant submitted correspondence she had had with the Office of Special Counsel (OSC) regarding a complaint she filed in Decembe r 2015. IAF, Tab 40 at 8 -12. S he also alleged that she made protected 4 disclosures that the agency was in violation of the veterans’ preference statutes or regulations under VEOA. Id. at 4. ¶6 The appeal continued through its normal course , but in an order and summary of a close -of-record conference, the administrative judge stated that she would separately address the appellant’s USERRA and WPEA claims. IAF, Tab 52 at 2 n.1. The appellant filed a timely objection to the administrative judge’s decision arguing that the agency had not con tested the USERRA and WPEA claims, as it had failed to respond to any of the related pleadings. IAF, Tab 51 at 3. ¶7 On July 26, 2017, the administrative judge issued an initial decision dismissing the appeal in part for lack of jurisdiction and denying co rrective action under VEOA as to the appellant’s remaining claims. IAF, Tab 57, Initial Decision (ID). Specifically, the administrative judge found that the appellant failed to exhaust her administrative remedies with the Department of Labor (DOL) concer ning her grievances with t wo of the vacancies. ID at 4-6 (citing 5 U.S.C. § 3330a (a)(2)(A); Gingery v. Department of the Treasury , 110 M.S.P.R. 83, ¶ 14 (2008)). Regarding the remaining claims, the administrative judge found that the appellant established juris diction over them, ID at 6 -8, but that nothing in the VRA appointment authority for her initial position required that the agency select the appellant for any of the vacancies for which she applied and that, therefore, she was not entitled to corrective ac tion under VEOA, ID at 8-9.3 3 The administrative judge also briefly discussed the second type of claim provided for by VEOA at 5 U.S.C. § 3304 (f)(1), which states that preference eligible or veterans who have been separated from the armed forces under honorable conditions after 3 years or more of active service may not be denied the opportunity to compete for vacant positions for which the agency making the announcement will accept applications from individuals outside its own workforce under merit promotion procedures. ID at 6 -7. The adminis trative judge found this provision inapplicable to the instant case because the agency did not accept applications from outside its own workforce for any of the vacancies at issue . ID at 9 -10. 5 ¶8 At the end of the initial decision, the administrative judge included a footnote addressing the alleged USERRA and WPEA claims. ID at 10 n.10. She summarized the relevant pleadings and the appellant’s objection to the separ ate docketing of the claims.4 Id. She also stated that “ the Board does not have jurisdiction under VEOA to consider these claims.” Id. (citing Ruffin v. Department of the Treasury , 89 M.S.P.R. 396 , ¶¶ 10 -11 (2001)). The administrative judge again reminded the appellant that if she still wished for the Board to address these claims, she could file new, separate appeals with the Boar d. Id. ¶9 The appellant has filed a petition for review arguing that the Board has jurisdiction to review her USERRA and WPEA claims. Petition for Review (PFR) File, Tab 1 at 5-7. The agency has not filed a response. DISCUSSION OF ARGUME NTS ON REVIEW ¶10 The appellant does not appear to challenge any of the administrative judge’s findings concerning the VEOA claims. Id. We have reviewed the record, and we find no reason to disturb those findings here. Regarding the alleged USERRA and WPEA claims, we not e as an initial matter that , although the administrative judge stated in the initial decision that the Board does not have jurisdiction under VEOA to consider USERRA or WPEA claims, ID at 10 n.10, she nonetheless issued jurisdictional orders on those poten tial claims to provide the appellant with notice of what is req uired to establish jurisdiction over those claims independent 4 Based on our search of Board filings, it does not appear than an IRA or USERRA appeal concerning these claims was docketed. The appellant did file IRA appeal s in 2017 and 2019, but these seem to be based on later OSC complaint s. See Solomon v. Departmen t of Veterans Affairs , MSPB Docket No. DA -1221 -18-0120 -W-1; Solomon v. Department of the Army , MSPB Docket No. DA-1221 -19-0439 -W-1. As to the 2017 IRA appeal , the administrative judge issued an initial decision denying corrective action . Solomon v. Depar tment of Veterans Affairs , MSPB Docket No. DA -1221 -18- 0120 -W-1, Initial Decision (Oct. 2, 2018) . The administrative judge issued an initial decision dismissing the latter appeal for lack of jurisdiction. Solomon v. Department of the Army , MSPB Docket No. DA-1221 -19-0439 -W-1, Initial Decision (Aug. 22, 2019). Both matters are now final. 6 of VEOA jurisdiction, IAF, Tabs 32-33. Therefore, it is not clear from the record whether these potential claims were dismissed fo r lack of jurisdiction. ¶11 Regardless, we have thoroughly reviewed the record, and we do not discern any coherently articulated USERRA claim. Nonetheless , as the administrative judge instructed, the appellant is within her rights to file a separate USERRA appeal concerning any claim she believes she may have. Regarding the potential WPEA claim, we recognize that the record contains correspondence with OSC concerning a complaint that the appellant filed in 2015; however, it does not appear that the complain t itself is contained in the record, nor is any comprehensive documentation submitted to OSC detailing her grievances, leaving the Board to speculate as to what issues were brought before that forum . IAF, Tab 40 at 8 -10. Further, although the record appe ars to include what purport to be the appellant’s allegations concerning her protected disclosures, those statements are intertwined with her arguments pertaining to her VEOA claim, and the Board is unable to assess which statements are intended to support a WPEA claim and which are intended to support a VEOA claim. Id. at 4-7. Moreover, we are unable to discern from the record whether these statements were provided to OSC or whether they were submitted in response to the administrative judge’s jurisdicti onal order. ¶12 We remind the appellant that it is not the Board’s obligation to construe and make sense of allegations that are set forth at various parts of a voluminous case file. Keefer v. Department of Agriculture , 92 M.S.P.R. 476 , ¶ 18 n.2 (2002). Rather, the affirmative responsibility to present evidence and argument is that of the parties. Id. Further, the appellant is required to articulate her claims with reasonable clarity and precision. Id. We find that the appellant has failed to do so here, as her WPEA -related submissions (and by extension, her arguments) are confusing and do not prese nt a clear representation of what she is attempting to claim. Therefore, as with her USERRA claim , should she wish to pursue a WPEA claim b ased on her 2015 OSC complaint, she may do so separately. 7 ¶13 We have considered the appellant’s arguments on review, but we conclude that a different outcome is not warranted. Accordingly, we affirm the initial decision. NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1 ). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summa ry of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum i s the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notic e, the Board cannot advise which option is most appropriate in any matter. 8 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives t his decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 9 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. distr ict courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you ma y request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with t he EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office o f Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have rai sed claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 10 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8) , or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 fo r review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circ uit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which c an be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SOLOMON_LAMEIA_DA_3330_16_0161_I_1_FINAL_ORDER_2045892.pdf	2023-06-30	null	DA-3330	NP
2,957	https://www.mspb.gov/decisions/nonprecedential/PAYTON_JUSTIN_LEE_AT_0752_15_0696_I_1_FINAL_ORDER_2045901.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JUSTIN LEE PAYTON, Appellant, v. DEPARTMENT OF JUSTIC E, Agency. DOCKET NUMBER AT-0752 -15-0696 -I-1 DATE: June 30, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ross Nabatoff , Washington, D.C., for the appellant. Susan E. Gibson , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member2 FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained his removal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge ’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner ’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the pet itioner 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 analysis applicable to the appellant’s claim of disparate penalties , we AFFIRM the initial decision . BACKGROUND ¶2 The agency removed the appellant from his Deputy U.S. Marshal position, which is a law enforcement officer position, based on the charges of conduct unbecoming a Deput y U.S. Marshal (2 specifications) , criminal misconduct (2 specifications) , and lack of candor (3 specifications) . Initial Appeal File (IAF), Tab 28, Initial Decision (ID) at 2 , Tab 5 at 14. All three charges stem from the events that occurred during an off-duty boating trip on July 28, 2012. ID at 2; IAF, Tab 5 at 89 -103. Charge one alleged that the appellant engaged in inappropriate behavior unbecoming a Deputy U.S. Marshal. ID at 2 ; IAF, Tab 5 at 90 -96. The agency specified as follows: (1) the appellant gave alcoholic beverages to a 15 -year-old child ; and (2) he inappropriately touched her. ID at 2; IAF, Tab 5 at 90 -96. Charge two alleged criminal c onduct based upon the 3 appellant ’s subsequent guilty plea to the misdemeanor of disorderly intoxication.3 ID at 2; IAF, Tab 5 at 96. Finally, charge three alleged that the appellant lacked candor when he provided statements denying that he inappropriately touched the minor, commented that she was “hot,” and gave the minor alcohol (Corona beers) . ID at 2 , 11; IAF, Tab 5 at 97-101. ¶3 The appellant filed an appeal with the Board disputing that the agency proved the charged misconduct. IAF, Tab 1 , Tab 17 at 6 -7. The appellant also argued that the penalty was unreasonable and raised a claim of disparate penalties . IAF, Tab 17 at 6-7. After holding the appellant ’s requested hearing, the administrative judge sustained all three charges and affirmed the agency ’s removal action . ID at 10 -11, 16. In reaching his decision, t he administrative judge found that there was nexus between the appellant ’s proven misconduct and the efficiency of the Federal service , that the appellant failed to prove his claim of disparate penalties, and that the removal penalty was reasonable . ID at 11 -16. ¶4 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has responded in opposition to the appellant ’s petition for review , and the appellant has replied. PFR File, Tabs 3 -4. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 On review, the appellant challenges the administrative judge ’s credibility determinations and his finding that the agency proved the charges of conduct unbecoming a Deputy U.S. Marshal and lack of candor . PFR File, Tab 1 at 5 -18. The appellant also disputes the administrative judge ’s findings on nexus , and he reasserts his disparate penalties claim , challenging the reasonableness of the removal penalty . Id. at 18-23. 3 Charge two originally contained a n additional specification struck by the administrative judge during the prehearing conference. ID at 2 n.1. 4 The administrative judge properly found that the agency proved the charge of conduct unbecoming a Deputy U.S. Marshal .4 ¶6 A general charge such as conduct unbecoming does not require specific elements of proof. It is established by proving that the employee committed the acts alleged in support of the broad label. See Canada v. Department of Homeland Securit y, 113 M.S.P.R. 509, ¶ 9 (2010). The administrative judge sustained the charge of conduct u nbecoming a Deputy U.S. Marshal as specified, based on explicit credibility findings from his observation of the witnesses ’ testimony at the hearing . ID at 6 -11. The administrative judge found the agency ’s witnesses more credible than the appellant ’s denial that he committed the acts specified in the charge . ID at 4 -11. In support of his finding that the appellant was not credible, t he administrative judge credited the testimony of two witnesses, both of whom were wives of U.S. Secret Service Special Agent s, that they saw the appellant give beer to the minor . ID at 10 . The administrative judge also credited the testimony of a Special Agent (the minor ’s step -father) and the wife of another Special Agent that the y saw the appellant inappropriately touching the minor on her inner thigh and /or in an intimate are a under her shorts . ID at 4-5, 11. The administrative judge found that this testimony was credible evidenc e that the appellant engaged in conduct u nbecoming a Deputy U.S. Marshal as specified by the agency . ID at 11. ¶7 On review, the appellant assert s that the administrative judge erred in sustaining the specifications of this charge. PFR File, Tab 1 at 4 . He challenges the administrative judge ’s credibility findings by arguing that the minor ’s hearsay statement to the O ffice of Inspector General (OIG) investigator is the only proof that he gave her Corona brand beers as specified in the charge , and her statement should not be credited over his sworn denial that he committed the specified 4 On review, the appellant does not dispute the administrative judge’s finding that the agency proved the charge of criminal misconduct based on his no contest plea to a second degree misdemeanor of disorderly intoxication. 5 misconduct . Id. at 6. The appellant further argues that the administrative judge ignored the agency ’s failure to prove that he gave the minor Corona beers and that several peop le in the group said that they did not see him give her alcohol. Id. at 5-10. ¶8 Concerning the administrative judge ’s consideration of the minor ’s statement to the OIG, which the appellant argues is impermissible hearsay evidence, it is well settled that relevant hearsay evidence is admissible in Board proceedings and the assessment of the probative value of hearsay evidence necessarily depen ds on the circumstances of each case. See Crawford -Graham v. Department of Veterans Affairs , 99 M.S.P.R. 389 , ¶ 20 (2005) ; Borninkhof v. Department of Justice , 5 M.S.P.R. 77 , 83-84 (1981). Moreover, the essence of the charged misconduct is that the appellant provide d the minor with alcohol. The dispositive issue is not the brand of beer , and the administrative judge did not rely solely on the minor ’s statement in finding that the agency proved the charge . The administrative judge credited the testimony of two witness es, both of whom were wives of U.S. Secret Service Special Agents, that they saw the appellant give beer to the minor. ID at 10. To the extent that the appellant is arguing that the administrative judge failed to consider evidence that not everyone in th e group observed him give alcohol to the minor, the administrative judge ’s failure to mention all of the evidence of record does not mean that he did not consider it in reaching his decision. Marques v. Department of Health and Human Services , 22 M.S.P.R. 129 , 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table ). ¶9 The appellant also argues on review that, in finding that he inappropriately touched the minor, the administrative judge ignored inconsistencies in the testimony of the agency ’s witnesses concer ning “the seating arrangement at the restaurant ” and their descriptions of where they observed his hand on the minor ’s body . PFR File, Tab 1 at 11 -15. We find that the minor inconsistencies identified by the appellant are insufficient to render incredible the testimony of the witnesses credited by the administrative judge in finding that the agency 6 proved the charged miscond uct as specified. See Thomas v. U.S. Postal Service , 116 M.S.P.R. 453, ¶ 5 (2011) (holding that minor inconsistencies do not nece ssarily render a witness ’s testimony incredible). The Board must defer to an administrative judge ’s credibility determinations when , as here, they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing. See Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). ¶10 The administrative judge credited the agency ’s three witnesses who testified, inter alia, that they saw the appel lant give the minor beer and touch her inner thigh or higher. ID at 6. The administrative judge found , among other things, that it was inherently improbable that t hese witnesses would make up these type s of a llegation s, considering that they socialized regularly with the appellant and had no apparent animosity toward him. Id. We have considered the appellant’s arguments on review, but we find that there are not “sufficiently sound” reasons on this record to overturn the administrative judge ’s finding s that the appellant was not credible when he denied giv ing beer to the minor and inappropriately touching her thigh. See Haebe , 288 F.3d at 1301. Accordingly, we agree with the administrative judge that the agency proved both specifications of the conduct unbecoming charge. ID at 10 -11. The administrative judge properly found that the agency proved the lack of candor charge. ¶11 The administrative judge found that the agency proved the lack of c andor charge as specified because the appellant falsely told an investigator from the agency ’s OIG that he did not inappropriately touch the minor, he never said that the minor was “hot ,” and he did not give the minor alcoholic beverages , despite preponderant evidence that he did so . ID at 4 -6, 11. The administrative judge further found that the appellant unequivocally denied inappropriately touching the minor when he was interviewed by lo cal police . ID at 5. The administrative judge found that the appellant ’s denials were not credible , considering , among 7 other things, that the minor informed the OIG investigator that the appellant repeatedly put his hand on her thigh , although she kept removing it, and that he had been giving her Corona beer to dr ink. ID at 7 -8. The minor also told the investigator that the appellant told her that she was “hot” on a prior boat trip. ID at 5, 8. Although the minor did not testify at the hearing and her statement was unsworn, t he administrative judge considered this evidence in addition to the highly credible hearing testimony provided by the adults who witnessed the specified misconduct and contradicted the appellant ’s version of events .5 ID at 4-11. The administrative judge also considered it particularly damaging to the appellant ’s credibility that he sent text messages to a Secret Service agent and a Supervisory U.S. Marshal , before their group boating trip, indicating that he was sexually interested in 14 - to 16-year-old girls .6 ID at 9. ¶12 The appellant further argues on review that the administrative judge ’s analysis of the witnesses ’ testimony did not conform to the Board ’s requirements in Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987); however, we find that the administrative judge thoroughly set forth the evidence and properly applied the Hillen analysis in making his well -reasoned , demeanor -based 5 In Fargnoli v. Department of Commerce , 123 M.S.P.R. 330 , ¶ 17 (2016) , the Board clarified that a charge of lack of candor requires p roof of the following elements: (1) that the employee gave incorrect or incomplete information; an d (2) that he did so knowingly. Here, although the administrative judge did not explicitly apply the second prong of Fargnoli in assessing this charge, he made comprehensive credibility determinations sufficient to satisfy the same . E.g., ID at 6-10. In light of these determinations, his failure to explicitly rely on Fargnoli does not provide a basis for remanding the matter . Cf. Fargnoli , 123 M.S.P.R. 330 , ¶ 18 (remanding for further analysis on the lack of candor charge when the administrative judge made no findings as to whether the appellant knowingly gave incorrect or incomplete information). 6 The appellant characterizes his text message as a joke and considers it “ludicrous ” that the administrative judge considered this evidence in sustaining the charge. PFR File, Tab 1 at 15. We find that the administrative judge properly considered the appellant’s text message about his sexual interest in young gir ls as a relevant factor in determining his credibility. See Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987) (listing the inherent probability of a witness’s version of events as one of many factors to be considered in making a credibility determination) . 8 determination that the agency ’s witnesses were more credible than the appellant. PFR File, Tab 1 at 11, 17-18; ID at 6 -10. We discern no reason to reweigh the evidence or substitute our assessment of the record evidence for that of the administrative judge. See Haebe , 288 F.3d at 1301 (finding that the Board must defer to an administrative judge ’s credibility determinations wh en they are based on observ ing the demeanor of witnesses testifying at a hearing) ; 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 has failed to establish that the administrative judge erred in finding that the agency establishe d nexus between his off-duty misconduct and the efficiency of the service. ¶13 In addition to the requirement that the agency prove its charges, the agency also must prove that there is a nexus to the efficiency of the service , i.e., a clear and direct relationship between the articulated grounds for an adverse action and either the appellant ’s ability to accomplish his duties satisfactorily or some other legitimate Government interest. Hoofman v. Department of the Army , 118 M.S.P.R. 532 , ¶ 16 (2012) , aff’d, 526 F. App ’x 982 (Fed. Cir. 2013) . An agency may show nexus between off -duty misconduct and the efficiency of the service by three means: (1) a rebuttable presumption in certa in egregious circumstances; (2) preponderant evidence that the misconduct adversely affects the appellant ’s or coworkers ’ job performance or the agency ’s trust and confidence in the appellant ’s job perform ance; or (3) preponderant evidence that the misconduct interfered with or adversely affected the agency ’s mission. Id. ¶14 On review, the appellant argues that there is no nexus between the efficiency of the service and his off -duty criminal misconduct charge . He bases his argument on the erroneous presumption that the agency failed to prove the remaining charges of lack of candor and conduct unbecoming . PFR File, Tab 1 9 at 18-20. In finding that the agency met its burden on nexus , the administrative judge found that nexus should be presumed for the appellant ’s proven lack of candor and that his proven criminal conduct is antithetical to the agency ’s law enforcement mission, especially considering that the appellant is a law enforcement officer. ID at 12. The administrative judge also found nexus between the proven misconduct and the efficiency of the service because : The appellant, as a law enforcement officer, carried a firearm and was responsible for executing arrest warrants, handling prisoners, protecting judges, and investigating and appre hending fugitives. He also has a role to play in enforcing the Adam Walsh Act, which deals with sex offender registries. Finally, the victim in this case was the minor step -daughter of a Secret Service agent, a nd the appellant ’s actions jeopardized his relationships with another Federal law enforcement agency with which the appellant was required to work and interact. Id. ¶15 To the extent that the administrative judge found that the agency established nexus under the second prong of Hoofman by showing that the appellant ’s proven misconduct adversely affected management ’s trust and confidence in his job performance, we agree. See Hoofman , 118 M.S.P.R. 532 , ¶ 16; Prather v. Department of Justice , 117 M.S.P.R. 137 , ¶¶ 32-33 (2011) (finding that the appellant ’s off -duty sexual conduct with vulnerable women adversely affected the agency ’s trust and confidence in his ability to perform h is job as a criminal investigator) ; Ludlum v. Department of Justice , 87 M.S.P.R. 56 , ¶ 28 (2000) (finding that the appellant ’s lack of candor strikes at the very heart of the employee -employer relationship and, thus, directly affects the efficiency of the service), aff’d, 278 F.3d 1280 (Fed. Cir. 2002) ; Honeycutt v. Department of Labor , 22 M.S.P.R. 491 , 494 (1984) (finding nexus for off -duty arrest fo r first-degree assault and public drunkenness given the sensitive and trustworthy nature of the appellant ’s duties), aff’d, 770 F.2d 181 (Fed. Cir. 1985) (Table). Accordingly, w e find that the appellant has failed to establish that the 10 administrative judg e erred in finding that the agency established nexus between his proven misconduct and the efficiency of the service. The appellant has failed to establish that the administrative judge erred in finding that he did not prove his claim of disparate penalt ies and that the removal penalty was reasonable ; however, we modify the initial decision to clarify the legal standard applicable to a claim of disparate penalties. ¶16 The remaining issue for consideration is whether the penalty of removal is reasonable under the circumstances. When , as in this appeal, all of the charges are sustained, the Board will review the agency -imposed penalty only to determine if the agency cons idered all the relevant factors and exercised management discretion within the tolerable limits of reasonableness. Pinegar v. Federal Election Commission , 105 M.S.P.R. 677 , ¶ 53 (2007); Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 306 (1981). The Board wi ll modify a penalty only when it finds that the agency failed to weigh the relevant Douglas factors or that it clearly exceeded the bounds of reasonableness in determining the penalty. See Pinegar , 105 M.S.P.R. 677 , ¶ 53; Douglas , 5 M.S.P.R. at 306 . ¶17 After the initial decision in this case, the Board reinstated its former law governing the analysis of disparate penalties claims . Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 9. In Singh , the Board held that it should not weigh the relative seriousness of various offenses to determine if the agency treated employees who committed different acts of misconduct differently; rather, the relevant inquiry is whether the agency knowingly and unjustifiably treated employees who engaged in the same or similar offenses diff erently. Id., ¶¶ 14, 17 ( overruling Portner v. Department of Justice , 119 M.S.P.R. 365 (2013), and Boucher v. U.S. Postal Service , 118 M.S.P.R. 640 (2012)). ¶18 On review, the appellant reasserts the disparate penalties claim that he made before the administrative judge , arguing that the removal penalty is not reasonable because other individuals who have pled guilty to alcohol -related criminal violations and incu rred multiple administrative penalties have not been 11 terminated by the agency.7 PFR File, Tab 1 at 21. He argues that he should not have been removed based solely on his misdemeanor conviction of disorderly intoxication as specified in the criminal misco nduct charge. Id. We are not persuaded by the appellant ’s argument because it is based on a false premise that the agency failed to prove the remaining charges concerning his lack of candor and his conduct unbecoming a Deputy U.S. Marshal. ID at 14. Indeed, t he appellant has not identified any similarly situated comparator employees who were charged with the same or similar three instances of misconduct . Thus, he has necessarily failed to show that the agency knowingly and unjustifiably treated employe es who engaged in the same or similar offenses differently. See Singh , 2022 MSPB 15, ¶¶ 14, 17 . ¶19 We further find that the removal penalty is well within the bounds of reasonableness for the sustained misconduct. The appellant in this case was a law enforcement officer, and it is well settled that law enforcement officers may be held to a higher stand ard of conduct than other Federal employees. See, e.g., Prather , 117 M.S.P.R. 137, ¶ 36. The record reflects that the deciding official considered the relevant Douglas factors in deciding on the removal penalty, including but not limited to the appellant ’s 10 years of service, the nature and seriousness of his m isconduct considering h is law enforcement position, and his 4 prior disciplinary actions indicating a pattern of off -duty misconduct and no rehabilitation potential . IAF, Tab 5 at 17-21, 104 -06. 7 The appellant identified the following as alleged comparator employees w ho were not removed for alcohol -related offenses: (1) an employee who was previously suspended for misuse of a credit card and for failing to report damage to a Government -owned vehicle and was pending decision on a proposed 30 -day suspension for driving while intoxicated (DWI); (2) an employee who was reprimanded , although his prior record included a 30 -day suspension for DWI, a second DWI, and a misdemeanor conviction for chemical dependency and fleeing the scene of an accident; and (3) an employee whose removal was proposed and had a prior DWI and misdemeanor fo r failing to consent to a blood -alcohol test. ID at 13; PFR File, Tab 1 at 21 -23. 12 ¶20 The administrative judge found that the appellant expressed no remorse for his misconduct and agreed with the deciding official ’s concl usion that the appellant had no potential for rehabilitation . ID at 16. The administrative judge’s findings about the appellant’s propensity for rehabilitation are necessarily intertwined with issues of credibility and an a nalysis of his demeanor at the hearing , and they deserve deference from the Board. See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 , 1373 (Fed. Ci r. 2016). We find that the appellant ’s arguments on review do not establish any error in the administrative judge ’s finding that the removal penalty was reasonable for his proven misconduct . Accordingly, we deny his petition for review. 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 whic h to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropr iate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law appl icable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 8 Since the issuance of the initial decision in this matter, the Board may have updated the notice 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 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that f orum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 14 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposi tion of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, nation al origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: 15 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 9 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction ex pired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 16 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	PAYTON_JUSTIN_LEE_AT_0752_15_0696_I_1_FINAL_ORDER_2045901.pdf	2023-06-30	null	AT-0752	NP
2,958	https://www.mspb.gov/decisions/nonprecedential/WILSON_BONNIE_J_SF_844E_18_0127_I_1_REMAND_ORDER_2045921.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BONNIE J. WILSON, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER SF-844E -18-0127 -I-1 DATE: June 30, 2023 THIS ORDER IS NONPRECEDENTIAL1 Steven E. Brown , Esquire, Westlake Village, California, for the appellant. Albert Pete Alston, Jr. , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed a reconsideration decision of the Office of Personnel Management (OPM) finding her no longer eligible for continued disability retirement benefits under the Federal Employees Retirement System (FERS). For the reasons 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 discussed below , we GRANT th e appellant’s petition for review, VACATE the initial decision, and REMAND the case to OPM for a new reconsideration decision addressing whether the appellant’s medical co nditions, including heavy metal poisoning, entitle her to continued disability retire ment benefits. BACKGROUND ¶2 The appellant was formerly employed as a Tools & Parts Attendant at the Puget Sound Naval Shipyard. Initial Appeal File (IAF), Tab 9 at 24, 33. She was removed from Federal service effective December 15, 2009, due to an “inabi lity to perform assigned duties for medical reasons.” Id. at 32 -33. She filed an application for a disability retirement annuity under FERS. Id. at 24 -27. In her Applicant’s Statement of Disability, she described her conditions as “permanent damage to [her] eyes and redness on [her] neck due to an exposure in the Tool Room,” an “achiness in [her] neck and elbow” which was impeding her ability to lift objects, and severe insomnia. Id. at 21-22. OPM has provided documentation , presumably submitted by the appellant, showing she was diagnosed with hypersomnia with sleep apnea, id. at 74, was suffering from a history of contact dermatitis and eczema in 2005, id. at 75 and 79, and as of 2009 had high levels of bismuth, cadmium, lea d, mercury, and tin in her urine, id. at 81-88, and dry eye syndrome, id. at 95-100. On May 25, 2010, OPM approved the appellant’s FERS disability retirement application. Id. at 37 -39. OPM found the appellant “disabled due to multiple conditions” from h er previous position as a Tools & Parts Attendant. Id. at 40. ¶3 On June 16, 2016, OPM issued an initial decision determining that the appellant was not eligible for continued disability retirement payments because she had not shown that her medical condit ion still rendered her disabled. Id. at 57-58. The decision noted that the appellant had previously been found disabled “due to poison exposure of dangerous levels of chemicals and heavy metals causing significant systemic reactions.” Id. at 57. The ap pellant requested 3 reconsideration from OPM and submitted additional medical documentation. Id. at 68 -69. OPM issued a reconsideration decision denying the appellant’s reconsideration request, and indicated that her medical evidence was insufficient to su pport continued disability retirement benefits for the accepted condition of eye and skin exposure. Id. at 7-8. ¶4 The appellant appealed OPM’s reconsideration decision, IAF, Tab 1, which the administrative judge affirmed, IAF, Tab 32, Initial Decision (ID) . The appellant timely filed a petition for review. Petition for Review (PFR) File, Tab 1. On review, she reasserts that she has a continuing disability caused by heavy metals, which has resulted in various conditions, and that OPM is “trying to get out of paying a severely disabled person” by incorrectly limiting her medical conditions to skin and eye irritation. PFR File, Tab 7 at 2 -3. OPM has responded to the petition and the appellant has replied. PFR File, Tabs 6 -7. DISCUSSION OF ARGUME NTS O N REVIEW ¶5 Generally , the Board only has jurisdiction over retirement issues once they have been the subject of an OPM reconsideration decision, and the Board will not consider evidence relating to medical conditions unless they were presented to, and addres sed by, OPM. Ott v. Office of Personnel Management , 120 M.S.P.R. 453, ¶ 4 (2013); Ballenger v. Office of Personnel Management , 101 M.S.P.R. 138 , ¶ 12 (2006). However, when OPM fails to adjudicate all the claims and dispositive issues before it, the Board has jurisdiction to consider the non-adjudicated claims and issues, and may remand the case for OPM to complete a full review of the matter. Ott, 120 M.S.P.R. 453 , ¶ 4; Byrum v. Office of Personnel Management , 618 F.3d 1323 , 1332 -33 (Fed. Cir. 2010). ¶6 In Byrum , the appellant subm itted an application to OPM indicating that she was claiming her mother’s FERS death benefits only in her capacity as her mother’s “child” on her death benefits application, but supplemental documentation to the application clearly indicated that she was a pplying also in 4 her capacity as “assignee” of the benefits, pursuant to a court -ordered assignment executed by her mother’s spouse. 618 F.3d 1323 , 1326 -27 (Fed. Cir. 2010). OPM denied the appellant’s application without addressing whether the appellant was entitled to her mother’s FERS death benefits by way of the assignment. Id. at 1327 -28. Because of OPM’s failure to address that issue, our re viewing court remanded the case for OPM to conduct a “full and complete review” of all of the claims in the appellant’s application. Id. at 1333. ¶7 In Ott, the appellant submitted a disability retirement application with a list of impairments. 120 M.S.P.R. 453 , ¶ 2. Although not included on that list, the medical documentation submitted with the application also demonstrated the exist ence of permanent hearing loss. Id. OPM denied the application, at the initial and reconsideration levels, without making any findings as it related to hearing loss. Id. The Board found the case similar to Byrum in that, by failing to address the heari ng loss, OPM effectively failed to adjudicate all of the claims in the appellant’s disability retirement application. Id., ¶ 6. As a result, the Board remanded the case to OPM for a new reconsideration decision addressing whether all of the medical condi tions raised in the appellant’s application materials entitled her to disability retirement benefits. Id., ¶¶ 6, 9. The Board’s precedent in Byrum and Ott stand for the proposition that OPM must look beyond the four corners of a retirement application fo rm to consider also an applicant’s supporting documents. ¶8 Here, similar to Byrum and Ott, OPM limited its reconsideration decision of the appellant’s eligibility for continuation of her disability retirement benefits to only some of the medical conditions in the appellant’s original Statement of Disability, specifically her eye and skin irritation “due to an exposure in the Tool Room.” IAF, Tab 9 at 21 -22. However, the appellant listed additional conditions, such as insomnia, and provided supporting docu mentation of heavy metal exposure with her initial disability retirement application. Id. at 81-88. Furthermore, OPM’s initial decision, from which the appellant requested 5 reconsideration, explicitly stated that she had previously been found disabled “due to poison exposure of dangerous levels of chemicals and heavy metals causing significant systemic reactions.” Id. at 57. ¶9 In requesting reconsideration, the appellant pro vided updated medical documentation purportedly in support of her diagnosis of heavy metal poisoning, such as a December 2015 diagnosis of osteopenia, a January 2016 heavy metals panel, documentation for her January 2017 syncope and collapse, a February 20 17 abnormal electro cardiology report, and documentation from emergency room visits in February and March 2017 related to tingling in her arms and legs. Id. at 88, 108 -127. However, OPM limited the scope of its reconsideration decision to the “eye and sk in irritation” identified in the appellant’s initial application and did not consider the documentation related to the appellant’s other conditions. Id. at 7. By not addressing the heavy metal poisoning, which OPM had previously indicated was the basis f or granting the appellant’s dis ability retirement application, id. at 57, OPM failed to adjudicate all of the issues necessary to determine the appellant’s eligibility for continued disability retirement payments.2 Accordingly, as in Ott, we find that thi s case should be remanded to OPM to determine whether the appellant’s medical conditions, including heavy metal poisoning, entitle her to continued disability retirement benefits.3 2 OPM provided a letter from its own contract medical doctor reflecting that he could not determine the conditions accepted by OPM, and recognizing that the appellant’s claim had been accepted for “e xposure.” IAF, Tab 9 at 9. He then declined to consider this accepted basis for granting disability retirement because it was not a health condition. Id. Without more, this discussion appears overly circumscribed. Presumably , OPM is in the best positi on to identify to what it was referring when it approved the claim of “exposure.” 3 In light of our decision to remand this matter to OPM for a new reconsideration decision, we do not address the appellant’s remaining allegations of error by the administr ative judge. 6 ¶10 Further, although the appellant’s receipt of Social Security disability benefits is not dispositive of her eligibility for continued FERS disability retirement benefits, OPM must consider on remand whether her receipt of those benefits affects the appellant’s entitlement to FERS disability retirement benefits. See Trevan v. Off ice of Personnel Management , 69 F.3d 520 , 526 (Fed. Cir. 1995); IAF, Tab 26. OPM argues on review that the Social Security decision concerns a me ntal health condition with an onset date in 2015, and thus has no impact on the appellant’s claim. PFR File, Tab 6 at 11 -12. On this record, we are not persuaded. First, the decision, which is incomplete, appears to attribute the appellant’s mental heal th condition, as least in part, to heavy metal exposure. IAF, Tab 26 at 2. Further, OPM submitted medical documentation that suggests the appellant’s mental health was at issue in her original disability retirement application. IAF, Tab 9 at 91 -94. OPM may request documentation from the Social Security Administration to clarify any ambiguities in the decision. Trevan , 69 F.3d at 526. ¶11 On review, the appellant provided a July 9, 2018 note from her doctor stating that her disability of “neuropathy pain and debilitating chronic fatigue” is permanent and that she is not capable of carrying out gainful employment. PFR File, Tab 3. On remand , OPM should consider this evidence given the nature of disability retirement cases and the high priority the Board has placed on resolving such cases on the merits. See Ott , 120 M.S.P.R. 453 , ¶ 8 (citing these reasons in ordering OPM on remand to c onsider evidence relating to an appellant’s disability retirement application that she submitted for the first time with her petition for review).4 4 On May 8 , 2019, the appellant filed a motion to supplement the record with an additional pleading. PFR File, Tab 13. In light of our disposition in this matter, we find it unnecessary to rule on the appellant’s motion. The appellant ma y wish to submit her additional medical documentation to OPM for consideration on remand . See Ott, 120 M.S.P.R. 453 , ¶ 8 . 7 ORDER ¶12 On remand, OPM shall issue a new reconsideration decision addressing whether the appellant’s medical conditions, including heavy metal poisoning, entitle her to continued disability retirement benefits. OPM shall issue the new reconsideration decision wit hin 60 calendar days from the date of this Remand Order and s hall advise the appellant of her right to file an appeal to the Western Regional Office if she disagrees with that new decision. See Litzenberger v. Office of Personnel Management , 88 M.S.P.R. 419 , 424 (2001). ¶13 We also ORDER OPM to tell the appellant promptly in writing when it believes it has fully carried out the Boar d’s Order and of the actions it has taken to carry out the Board’s Order. We ORDER the appellant to provide all necessary information OPM requests to help it carry out the Board’s Order. The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b). ¶14 No later than 30 days after OPM tells the appellant it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the Western Regional Office if the appellant believes that OPM did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes OPM has not fully carried out the Board’s Order, and should include the dates and results of any communications with OPM. See 5 C.F.R. § 1201.182 (a). FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	WILSON_BONNIE_J_SF_844E_18_0127_I_1_REMAND_ORDER_2045921.pdf	2023-06-30	null	SF-844E	NP
2,959	https://www.mspb.gov/decisions/nonprecedential/BATES_SHERRY_L_CH_831M_18_0370_I_1_REMAND_ORDER_2045932.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SHERRY L. BATES, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER CH-831M -18-0370 -I-1 DATE: June 30, 2023 THIS ORDER IS NONPRECEDENTIAL1 Sherry L. Bates , Knoxville, Iowa, pro se. Carla Robinson , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member REMAND ORDER ¶1 The appellant has filed a petition for review of the in itial decision, which dismissed for lack of jurisdiction her appeal of an Office of Personnel Management (OPM) final decision after OPM represented that it had rescinded its decision during the pendency of the appeal. 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 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 GRANT the appellant ’s petition for review , VACATE the initial decision, and REMAND the case to the Central Regional O ffice for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 The appellant filed a Board appeal challenging an OPM final decision , which denied her request to waive recovery of the overpayment of her Civil Service Retirement System (CSRS) disability retirement annuity benefits . Initial Appeal File (IAF) , Tab 1 at 3 , 5, 9 -10. She requested a hearing. IAF, Tab 3 at 1. On June 19, 2018, OPM moved to dismiss the appeal for lack of jurisdiction because it had rescinded its final decision. IAF, Tab 7 at 4. OPM represented that, “[u]pon the dismissal of [the] appeal, it [would] review the case file and render a new final decision and give due process accordingly.” Id. Three days later, on June 22, 2018,2 the administrative judge issued an initial decision, finding that OPM ’s rescission of its final decision divested the Board of jurisdiction over the appeal. IAF, Tab 8 , Initial Decision at 2. ¶3 The appellant filed a petition for review. P etition for Review (PFR) File, Tabs 1, 8. The agency filed an untimely response.3 PFR File, Tab 9. Because there existed a question as to whether OPM had restored the appellant to h er status prior to the issuance of the final decision, as required for a complete rescission, the Office of the Clerk of the Board issued a February 7, 2019 show cause order. PFR File, Tab 12. The parties did not respond. 2 The administrative judge scheduled a telephonic status conference for June 22, 2018. IAF, Tab 5. It is not clear whether the administrative judge held the status conference on that date . If he did, the appellant did not participate. Petition for Review File, Tab 8 at 27. 3 OPM filed its response to the petition for review on October 23, 2018, four days past the deadline of October 19, 2018. PFR File, Tabs 7 -9. The Office of the Clerk of the Board provided OPM with an opportunity to show good cause for its untimely filing, to which OPM did not respond. PFR File, Tab 10. Thus, we have not considered OPM ’s untimely filing. See 5 C.F.R. § 1201.114 (g) (requiring late filings o n review to be accompanied by a motion showing good cause for the delay). 3 DISCUSSION OF ARGUME NTS ON REVIEW ¶4 The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). Generally, the Board has jurisdiction over OPM ’s determinations affecting an appellant ’s rights or interests under CSRS only after OPM has issued a final decision. 5 U.S.C. § 8347 (d); Miller v. Office of Personnel Management , 123 M.S.P.R. 68 , ¶ 7 (2015); 5 C.F.R. § 831.110 . If OPM completely rescinds a final decision, the rescission divests the Board of jurisdiction over the appeal in which the final decision is at issue. Martin v. Office of Personnel Management , 119 M.S.P.R. 188 , ¶ 8 (2013). However, if OPM does not restore the appellant to the status quo ante , the final decision has not been rescinded. Id., ¶ 10. Thus, the appeal remains within the Board’s jurisdiction in the event that OPM does not repay funds it previously withheld pursuant to an overpayment determination . Id., ¶¶ 4, 10. ¶5 Here, OPM stated below that it rescinded its final decision and that it intended to issue a new final decision after the dismissal of this appeal. IAF, Tab 7. The appellant ’s allegations on review indicate that OPM ma y have made deductions from her annuity ben efits for which she was not repaid . PFR File, Tab 8 at 4. Based on the record, it appears that OPM collected $256.47 toward the appellant ’s debt before it suspended further payments. IAF, Tab 1 at 7, 10-11. Because there is no indication that OPM affor ded the appellant status quo ante relief , we find it necessary to remand this matter to the regional office for further development of the record on the jurisdictional issue and , if appropriate, adjudication on the merits . See Campbell v. Office of Personnel Management , 123 M.S.P.R. 240 , ¶¶ 11-12 (2016) (remanding the appeal because the Board was unable to determine whether OP M has returned the appellant to the position in which she would have been had the final decision not been issued). If the administrative judge finds that OPM has repaid the withheld amount , he may once again dismiss the appeal for lack of jurisdiction. Id., ¶ 11. 4 ¶6 The appellant argues that she received untimely notice of the June 22, 2018 status conference. PFR File, Tab 8 at 6. She submitted evidence in the form of a postmarked envelope which she alleges shows that the regional office mailed her the initial decis ion on June 25, 2018, three days after the status conference was to be held. Id. at 27-28. She raises additional arguments that concern the merits of the appeal . PFR File, Tab 8. Because these arguments are not relevant to the dispositive jurisdictiona l issue, we decline to consider them further. See Sapla v. Department of the Navy , 118 M.S.P.R . 551, ¶ 7 (2012) (finding that an appellant ’s arguments on the merits of her appeal were immaterial to the jurisdictional question) . ORDER ¶7 For the reasons discussed above, we REMAND this case to the Central Regional O ffice for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BATES_SHERRY_L_CH_831M_18_0370_I_1_REMAND_ORDER_2045932.pdf	2023-06-30	null	CH-831M	NP
2,960	https://www.mspb.gov/decisions/nonprecedential/WANG_LINGLING_DC_0752_17_0510_I_1_FINAL_ORDER_2046023.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LINGLING WANG, Appellant, v. DEPARTMENT OF COMMER CE, Agency. DOCKET NUMBER S DC-0752 -17-0510 -I-1 DC-0752 -17-0509 -I-1 DATE: JUNE 30, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lingling Wang , Chantilly, Virginia, pro se. Benjamin K. Ahlstrom and William Horrigan , Alexandria, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed these joined appeal s with prejudice for failure to prosecute. 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 tha t the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 DISCUSSION OF ARGUME NTS ON REVIEW ¶2 On August 18, 2017, the administrative judge issued an initial decision dismissing the se joined appeal s with prejudice for failure to prosecute. I nitial Appeal File (IAF) , Tab 34 , Initial D ecision (ID) at 1.2 The administrative judge informed the appellant that the decision would become final on September 22, 2017, unless a petition for review was filed by that date. ID at 5. On April 2, 2020, the appellant filed a petition for review. Petition for Review (PFR) File, Tab 1. ¶3 A petition for review must be filed within 35 days after the issuance of the initial decision, or, if the appellant shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date the appellant received the initial decision. 5 C.F.R. § 1201.114 (e). The appellant asserts that she has “no knowledge about the initial decision.” PFR File, Tab 4 at 11. To the extent she is alleging that she never received the initial decision, we find that, as an e -filer, she is deemed to have received the initial decision on the date of electronic submission. IAF, Tab 1 at 2; see Rivera v. Social Security Administration , 111 M.S.P.R. 581 , ¶ 5 ( 2009); 5 C.F.R. § 1201.14 (m)(2) . Accordingly, the appellant’s petition for review was due on September 22, 2017, and her submission filed April 2, 2020, is 923 days, or over 2 and a half years, untimely. This is a significant delay. ¶4 The Board will waive its filing deadline only upon a showing of good cause for the delay in filing. Stribling v. Department of Education , 107 M.S.P.R. 166 , ¶ 7 (2007); 5 C.F.R. § 1201.114 (g). To establish good cause for an u ntimely filing, a party must show that she exercised due diligence or ordinary prudence under the particular circumstances of the case. Stribling , 107 M.S.P.R. 166 , ¶ 7. 2 For ease of reference, all citations to the record in this order are to the files in Wang v. Department of Commerce , MSPB Docket No. DC -0752 -17-0510 -I-1, except as otherwise noted. 3 To determine whether an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of her excuse and her showing of due diligence, whether she is proceeding pro se, and wh ether she has presented evidence of the existence of circumstances beyond her control that affected her ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to her inability to timely f ile her petition. Id. ¶5 The Board will find good cause for an untimely filing when a party demonstrates that she suffered from an illness or medical condition that affected her ability to file on time. E.g., Pirkkala v. Department of Justice , 123 M.S.P.R. 288, ¶ 19 (2016) . To establish that an untimely filing was the result of an illness, the party must (1) identify the time period during whic h she suffered from the illness, (2) submit medical evidence showing that she suffered from the alleged illness during that time period, and (3) explain how the illness prevented her from timely filing her petition or a request for an extension of time. Id. (citing Lacy v. Department of the Navy , 78 M.S.P.R. 434 , 437 & n.* (1998)). The party n eed no t prove incapacitation, only that her ability to file was affected or impaired by the medical condition. Id. ¶6 The Office of the Clerk of the Board informed the appellant that her petition appeared untimely and advised her of how to establish good cau se for a waiver of the time limit. PFR File, Tab 3 at 2. The Office of the Clerk of the Board additionally provided a sample motion to accept her filing as timely or to ask the Board to waive the time limit, and informed her of how to establish good caus e for a waiver when alleging that health or illness affected her ability to meet filing deadlines. Id. at 7-8 & n.1 . In her motion to waive the time limit for filing a petition for review, the appellant set forth various physical and mental health proble ms she has been experiencing, including insomnia, anxiety, hopelessness, loss of energy, and concentration problems. PFR File, Tab 4 at 5. She additionally set forth that the left side of her body has generally been disabled 4 since 2015. Id. at 6. As a result, the appellant asserts that she has had to use her right arm, shoulder, and hand to perform tasks such as driving, lifting, cooking, and cleaning. Id. In the record below, the appellant provided various medical documents demonstrating examinations and treatment for chronic back pain, analysis of spinal problems, and pain extending to the left arm. IAF, Tab 24 at 7-27, Tab 32 at 14 -21, 27 , 39-42. The documented examinations and treatment all occurred prior to the September 2017 deadline to file, a nd the appellant did not submit any new medical evidence with her petition for re view. IAF, Tab 24 at 7-27, Tab 32 at 14 -17, 39-42. She also submitted forms from a health care provider stating, without further explanation, that she suffered from “insomni a— difficulty sleeping” in March 2016. IAF, Tab 32 at 15, 17, 40, 42. ¶7 The appellant has not submitted medical documentation specifically addressing her condition during the relevant time period, i.e., between the issuance of the initial decision and the filing of her petition for review. See Stribling , 107 M.S.P.R. 166 , ¶ 10 (noting a lack of medical evidence during the relevant period in finding no good cause for a waiver of the time limit). Moreover, even assuming that her conditions remained as described in her medical evidence, the appellant has not explained how her documented conditions prevented her from timely filing a p etition or requesting an extension. The mere references to “insomnia —difficulty sleeping” are insufficient to meet this burden. PFR File, Tab 4 at 5; see Gonzale z v. Department of Veterans Affairs , 111 M.S.P.R. 697 , ¶ 10 (2009) (finding that a physician’s office’s notes excusing an appellant from work for stress, insomnia, and severe headaches failed to establish that his condit ions impaired his ability to file a timely petition for review or request an extension of time to file). The appellant states that the injury to her left side forced her to perform daily work with her right arm, such as cleaning, driving, and cooking, but she has not explain ed how this injury prevent ed her from filing a petition for review or motion for an extension of time when she could still perform daily functions, albeit in a hindered capacity. PFR 5 File, Tab 4 at 6 ; see Pirkkala , 123 M.S.P.R. 288 , ¶ 20 (finding that the appellant failed to explain how her shoulder problems affected her ability to file a timely removal appeal) . ¶8 Although her other alleged medical iss ues, such as anxiety and concentration problems , might have made it more difficult to meet t he timeline, she has provided neither medical evidence showing that she suffered from these conditions nor corroborating evidence explaining how these alleged conditions prevented her from timely filing her appeal or requesting an extension of time. PFR File, Tab 4 at 5 ; see Stribling , 107 M.S.P.R. 166 , ¶¶ 10 -11; Lacy , 78 M.S.P.R. at 437 & n.*. We acknowledge her statement that , because of her “serious medical co nditions ,” she has “no knowledge about the initial decision.” PFR File, Tab 4 at 11. However, the appellant has not submitted medical or other corroborating evidence establishing that she could not understand the filing deadline or the method for filing a petition for review or request ing an extension of time. Additionally, the appellant filed for disability retirement benefits and a subsequent Board appeal of the decision by the Office of Personnel Management, both during the relevant period. PF R File, Tab 2 at 18-26, 162 -63; Wang v. Department of Commerce , MSPB Docket No . DC-0752 -20-0383 -I-1, Initial Appeal File, Tab 1 at 11 -15. The appellant’s demonstrated ability to actively participate in other proceedings during the relevant period weighs against a finding that her medical condition prevented her from timing filing her petition for review or a request for an extension of time. See Stribling , 107 M.S.P.R. 166 , ¶ 14. As such, we find that the appellant has failed to establish good cause f or a waiver of the time limit. ¶9 Accordingly, we dismiss the petition for review as untimely filed. This is the final decision of the Merit Systems Protection Board regarding the timeliness 6 of the petition for review. The initial decision remains the final decision of the Board regarding the dismissal for failure to prosecute.3 NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriat e for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applica ble to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 3 The appellant also filed a Motion to Suspend Due to Medical Inability and a Motion to Ask for the Board’s Help in Settling the Appeal. PFR File, Tabs 7 -8. Given our decision to dismiss the petition for review on timeliness grounds, we deny the appellant’s remaining motions. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 within 60 calendar days of the date of issuance of th is decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following addre ss: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Ap peals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services pro vided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an a ction that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action wi th an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, t hen you must file 8 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at th eir respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal O perations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for re view to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 9 (3) Judicial review pursuant to the Whistleblower Protection Enha ncement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competen t 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 jud icial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informati on about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Pra ctice, and Forms 5, 6, 10, and 11. 5 The original statutory provision tha t provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to f ile petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive t o November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prote ction Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	WANG_LINGLING_DC_0752_17_0510_I_1_FINAL_ORDER_2046023.pdf	2023-06-30	null	S	NP
2,961	https://www.mspb.gov/decisions/nonprecedential/LUCAS_SHERRY_G_CH_0752_16_0448_I_1_FINAL_ORDER_2045238.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SHERRY G. LUCAS, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER CH-0752 -16-0448 -I-1 DATE: June 29, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Glenn L. Smith , Esquire, Grand Rapids, Michigan, for the appellant. Deborah W. Carlson , Esquire , and Samuel D. Brooks , Esquire, Chicago, Illinois, 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 o f 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 dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initia l decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we con clude that the petitioner has not established any basis under section 1201.115 for granting 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 ¶2 The appellant was formerly employed by the agency as a Manager of Customer Service at the Gary, Indiana , Post Office. Initial Appeal File (IAF), Tab 1 at 1. On Decemb er 22 , 2015, the agency proposed her removal based on a charge of Unacceptable Conduct -Insubordination. Id. at 11 -16. The charge was based on the appellant’s repeated refusal to make a public apology to letter carriers in accordance with a prearbitration settlement agreement, an arbitration decision, and the repeat ed instructions of postal manag ement . Id. On May 16, 2016, the agency sustained the charge and removed the appellant, effective May 27, 2016. Id. at 6-10. ¶3 The appellant filed a Board appeal, disputing the charge. IAF, Tab 1. After holding the appellant’s requested hearing, the administrative judge issued an initial decision, sustaining the appellant’s removal. IAF, Tab 25, Initial Decision (ID). The administrative judge found that the agen cy proved its charge of insubordination. ID at 4-9. In particular, she found that the appellant’s repeated refusal to follow multiple direct orders to issue the apology was willful and intentional. ID at 5 -6. She further found that the relevant officia ls were 3 authorized to instruct the appellant to comply with the arbitrator’s decision. ID at 7-9. She also found that there was a nexus between the sustained charge and the efficiency of the service and that the penalty of removal was within the tolerabl e limits of reasonableness. ID at 9 -14. ¶4 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 4. The agency has opposed the appellant’s petition, and the appellant has filed a reply.2 PFR File, Tabs 6 -8. DISCUSSION OF ARG UMENTS ON REVIEW The administrative judge correctly found that the agency proved its insubordination charge. ¶5 The undisputed facts that formed the basis of the agency’s charge, as set forth by the administrative judge , are as follows. In March 2013, the Na tional Association of Letter Carriers (NALC) filed a class action grievance alleging that , as a result of the appellant’s conduct, the agency had violated provisions of the NALC National Agreement (NA), the Joint Statement on Violence and Behavior in the W orkplace, and sections o f the Employee Labor Manual . ID at 2. On February 12, 2014, the parties entered into a prearbitration settlement agreement , resolvin g the class action grievance. Id. One of the terms of the agreement provided that the appellant would “make a public apology to letter carriers in the Gary office acknowledging her behavior is not acceptable and a pledge to change her approach in treatment of fellow human beings.” Id. ¶6 Following the settlement agreement ’s execution , the appellant issued a statement , which the letter carriers did not believe constituted an apology in 2 With its response to the appellant’s petition for review, the agency has submitted numerous documents, some of which are part of the record below. PFR File, Tab 6 at 19-173, Tab 7 at 4 -106. Because we find no basi s for granting the appellant’s petition for review, we need not determine whether any of the agency’s documents constitute new and material evidence. See Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980); 5 C.F.R. § 1201.115 (d). 4 accordance with the requirements of the prearbitration agreement. IAF, Tab 7 at 97. As a result, NALC fil ed a grievance to protest various contractual violations by the agency, including the appellant ’s failure to apologize. ID at 2 -3. After a 4 -day arbitration hearing on the grievance was held, the arbitrator issued a written award finding that the appella nt failed to comply with the prearbitration settlement agreement because she did not issue an apology. ID at 3. The arbitration award directed the appellant to issue a publ ic apology to letter carriers at the Gary Post Office within 30 days, in the form of a prewritten statement prepared by the arbitrator. ID at 3. Following the arbitration award, the appellant was instructed to deliver the apology in compliance with the arbitration award on five separate instances , but she refused to comply.3 ID at 3, 6 n.1. Thereafter, the agency removed the appellant based on her failure to obey multiple direct orders to issue the apology in compliance with the binding arbitration award. IAF, Tab 1 at 6 -10. ¶7 As discussed above, the administrative judge found that this charge was based on insubordination. ID at 5. The initial decision properly stated that insubordination is the willful and intentional refusal to obey an authorized order of a superior officer which the officer is entitled to have obeyed. Id.; see Alvarado v. Department of the Air Force , 103 M.S.P.R. 1 , ¶ (2006) , aff'd , 626 F. Supp. 2d 1140 (D.N.M. 2009), aff'd , 490 F. App’x 932 (10th Cir. 2012) . Here, in finding that the agency proved its charge, the administrative judge anchored this finding in credibility determinations , relying on the Board’s decision in Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987). Considering the record as a whole, including testimonial evidence, the administrative judge found that the appellant’s refusal to follow t he multiple direct orders was willful and intentional. ID at 6 -7. The appellant does not 3 Although the appellant testified that she was only ordered to apologize two times , the administrative judge found that such testimony was contradicted by the documentary evidence and joint stipulations of the parties. ID at 6 n.1. 5 explicitly dispute these findings on review , and we discern no basis for disturbing them . See Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). ¶8 Rather, the appellant asserts that the administrative judge erred in sustaining the charge for several reasons. First, she argues that the prearbitration agreement was invalid because she was improperly denied the right to respond to NALC ’s allegations prior to the entry of the prearbitration agreement. PFR File, Tab 4 at 9 -10. She contends that the agency representative was not authorized to settle the grievance while she was out on leave and without ever interviewing her concerning the allegations made against her. Id. at 10. For the first time on review, she submits a December 14, 2016 letter from agency management addressing the handli ng o f grievances, which states that “[a]ccused management employee s should receive full opport unity to respond to allegations against them.” Id. at 21. Even if such allegations are true, t he Board has no authority to invalidate a settlement agreement rea ched in another forum. See, e.g. , Johnson v. U.S. Postal Service , 108 M.S.P.R. 502 , ¶ 8 n.5 (2008), aff’d , 315 F . App’x 274 (Fed. Cir. 2009); Goodwin v. Department of the Treasury , 52 M.S.P.R. 136 , 139 n.2 (1991), aff’d , 983 F.2d 226 (Fed. Cir. 1992); Danelishen v. U.S. Postal Service , 43 M.S.P.R. 376 , 379 -80 (1990). To the extent the appellant believes that she should not be bound by the prearbitration settlement agreement, she may bring a direct proceeding to invalidate the agreement in the prope r forum. ¶9 Next , the appellant argues that the NA did not apply to her, and thus , management had no authority to order her to apologize . PFR File, Tab 4 at 14-17. In support of her argument , she points to Article I of the NA , which she contends excluded ma nagement from the provisions of the NA. Id. at 14. The administrative judge addressed the appellant’s argument concerning the alleged inapplicability of the NA to management and found that s uch an argument was misplaced. ID at 7. She found that Article I was a standard collective bargaining provision that did not exclude management from the provisions of the NA but rather merely identified classifications of employees, such as those included in 6 management and those included in the craft . Id. She furth er found that various agency directives demonstrated that adherence to collective bargaining agreements by all employees, including management, was a longstanding and well-established p olicy . ID at 8. On review, the appellant offers no evidence or argume nt to dispute these findings and , thus, has not provided a basis for reversal. ¶10 Similarly , the appellant argues that the a rbitrator did not have the authority to discipline her, order her to issue an apology , or compel her to do anything personally because she was not a party to the grievance , which was between NALC and the agency . PFR File, Tab 4 at 16 -17. In essence, she argues that the arbitrator could only order the agency , not a specific management official, to issue an apology. Id. We find such arg uments unavailing. As the administrative judge found, the arbitrator merely enforced a valid and binding settlement agreement between the parties. ID at 8 -9. The appellant also argues that no apology should have been mandated because the arbitrator found that NALC did not prove that she engaged in a continual pattern of b ehavior in violation of the NA or the Joint Statement on Violence and Behavior in the Workplace. PFR Fil e, Tab 4 at 15-16. Such an argument is , however, misplaced. The arbitrator found that, although the appellant did not engage in any unacceptable conduct following settlement that amounted to a continued violation of the NA, she failed to comply with the terms of the prearbitration settlement because she failed to properly apologize. IAF, Tab 1 at 12, Tab 7 at 97. ¶11 Finally, the appellant argues that the arbitration decision and management’s orders that she apologize to the letter carriers violated her Firs t Amendment rights because she could not be compelled to issue an apology that violated her religious belief against lying. PFR File, Tab 4 at 11 -14. However, such an argument was not raised below. Thus, she may not raise it for the first time on review . See Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (declining to consider the appellant’s harmful error claim submitted fo r the first 7 time on review when the appellant presented no new evidence that was not available when the record closed to justify consideration of the issue). The administrative judge properly found that the agency proved that the penalty of removal was reasona ble. ¶12 The administrative judge found that the deciding official properly considered the penalty assessment factors set forth in Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981), and exercised his discretion within the tolerable limits of reasonableness in deciding to remove the appe llant. ID at 13 -14. On review, the appellant argues that the penalty of removal excee ds the bounds of reasonableness and it should be mitigated to a 30 - or 60 -day suspension. PFR File, Tab 4 at 17 -20. In support of her argument, she asserts that she di d not apologize, despite being instructed to do so several times, based on religiou s grounds , and thus, there is no basis to conclude that she cannot be rehabilitate d or will not follow lawful instructions in the future. Id. at 17. However, the appellant did not raise an affirmative defense of discrimination based on religion. IAF, Tab 8. She also argues that her lack of ability to respond to the union’s grievance allegations prior to the prearbitration settlement warrants mitigation. PFR File, Tab 4 a t 18. However, as discussed , the propriety of the agency’s action in settling the grievance and the validity of the settlement agreement reached in a different forum are not issues before the Board. Regardless, we find that such an argument does not outw eigh the seriousness of her repeated and intentional offenses. Finally, t he appellant points to her 17 years of service and positive work record. Id. The administrative judge, however, found that the deciding official considered such factors but found t hey were outweighed by the severity of the appellant’s offense, given its impact on the agency’ s mission and the agency’s requirement to honor its obligations and responsibilities in the collective b argaining process. ID at 12 -13. ¶13 Accordingly, we affirm the initial decision, sustaining the appellant’s removal. 8 NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims deter mines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit System s Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish t o seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case b y your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, yo u should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, whic h must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for t he 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 Fede ral Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Boar d appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decis ion—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If t he action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 10 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submi t a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 11 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 ex pired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	LUCAS_SHERRY_G_CH_0752_16_0448_I_1_FINAL_ORDER_2045238.pdf	2023-06-29	null	CH-0752	NP
2,962	https://www.mspb.gov/decisions/nonprecedential/VIGIL_WILLIE_NY_1221_15_0134_W_1_FINAL_ORDER_2045246.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD WILLIE VIGIL, JR., Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER NY-1221 -15-0134 -W-1 DATE: June 29, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Isabel Cottrell , Esquire, and Heather W hite, Esquire, Washington, D.C., for the appellant. Michael Huber , Esquire, Brooklyn, New York, 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 decisio n, 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; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges a re not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 the initial de cision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the reco rd closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting 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 ¶2 The appellant filed an IRA appeal alleging that the agency denied his request for optional pay retention in reprisal for an alleged protected disclosure he made in an April 22, 2013 letter he sent to Senator Gillibrand. Initial Appeal File (IAF), Tab 1 at 12 -13. The administrative judge issued a jurisdictional order informing the appellant of his burden of , among other things, raising nonfrivol ous allegations that he made a disclosure that he reas onably believed evidenced any violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific dan ger to public health or safety. IAF, Tab 3. In response, the appellant submitted var ious documents, including his complaint filed with the Office of Special Counsel (OSC), but did not include a copy of his letter to Senator Gillibrand or offer any argument concerning how it amounted to a protected disclosure. IAF, Tab 4. The agency move d to dismiss the appeal for lack of jurisdiction. IAF, Tab 8. ¶3 Without holding the appellant’s requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, 3 Tab 11, Initial Decision (ID). T he administrative judge found that , although the appellant exhausted his administrative remedy with OSC and raised a nonfrivolous allegation that he was subjected to a personnel action, he failed to nonfrivolously allege that he made a protected disclosure . ID at 7 -15. In particular, she found that his April 22, 2013 letter to Senator Gillibrand amounted to a request for congressional assistance in expediting the processing of his optional pay retention request, not a claim that anyone had engaged in gros s mismanagement, an abuse of authority, or any other of the categories of wrongdoing set forth in 5 U.S.C. § 2302 (b)(8). ID at 14. ¶4 The appellant has filed a petition for review. Petition for Rev iew (PFR) File, Tab 4. The agency has opposed the appellant’s petition.2 PFR File, Tab 11. DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge properly found that the appellant failed to nonfrivolously allege that he made a protected disclosure. ¶5 To establish the Board’ s jurisdiction over an IRA appeal, an a ppellant must have exhausted his administrative remedies before OSC and make nonfrivolous allegations of the following: (1) he made a protected disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity as specified in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected acti vity was a co ntributing factor in the agency’ s decision to take or fail to take a 2 The agency also has filed a cross petition for review in which it requests that the Board take official or judicial notice of certain facts related to the agency’s organization al str ucture during the relevant time period. PFR File, Tab 10. In its cross petition for review, the agency submits for the first time on review evidence attempting to refute the appellant’s allegation that he was advised that he could retai n his same salary upon his return to Fort Hamilton in New York from a position in Brussels, Belgium . Id. The appellant has moved to strike the agency’s alleged new evidence , asserting that the agency failed to offer an explanation as to why it could not have submitted it below. PFR File, Tab 13. We deny the agency’s cross petition for review because it fails to identify any error in the initial decision and instead addresses matters not relevant to the jurisdictional issue before us. See 5 C.F.R. §§ 1201.114 (b), 1201.115. As such, the appellant’s motion to strike is denied as moot. 4 personnel action as defined by 5 U.S.C. § 2302 (a)(2)(A). 5 U.S.C. §§ 1214 (a)(3), 1221 (e)(1) ; Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016); see Yunus v. Departme nt of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001). At the jurisdictional stage, an appellant i s not required to prove that his disclo sure is protected under 5 U.S.C. § 2302 (b)(8). Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶ 8 (2013). Rather, the standard for establishing jurisdiction is a nonfrivolous allegation of facts that, if proven, would show that the appellant made a protected disclosure, i.e., that the matter disclosed was one which a reasonable person in his position would believe evidenced one of the situations specified in 5 U.S.C. § 2302 (b)(8). Id. ¶6 The administrative judge found that the appellant failed to nonfrivolo usly allege that his April 22, 2013 letter constituted a protected disclosure. Because the appellant did not submit any argument below, the administrative judge relied on a copy of the April 22, 2013 letter submitted by the agency and the appellant’s statements in his OSC complaint to find that he failed to nonfrivolously allege that he disclosed any of the enumerated types of wrongdoing listed under 5 U.S.C. § 2302 (b)(8). ID at 13 -14. Rather, s he found that the letter amounted to a request for assistance in expediting the processing of the appellant’s optional pay retention request. I D at 14 . She also noted that under “complaint category” on his OSC form, the appellant did not identify any spe cific category of wrongdoing, but rather listed “other prohibited activity.” ID at 13. We discern no error in the administrative judge’s finding that the appellant’s letter amounted to a request for assistance in expediting the processing of his optional pay retention request and not a protected disclosure . The appellant’s April 22, 20 13 letter to Senator Gillibrand reads as follows: 5 Dear Senator Gillibrand, I am writing to request your assistance. In August of 2012, I moved back to Fort Hamilton Army Base in New York City from Brussels, Belgium where I was the Chief of the Plans, Analysis and Integration office as a GS -13 step 7 with a base pay of $86,008. Under the Installation Management Command s (IMCOM) Reorganization, my position was abolished an d as a result I was reassigned to Ft. Hamilton where my previous position as a Plans Specialist had been abolished, and I was assigned as a Budget Analyst (GS -12 step 10 $78,355). [.] When I left Europe, I was informed by civilian personnel in Belgium that I would retain my salary as a GS -13 step 7; unfortunately this proved to not be the case. After inquiring, I was informed by the civilian personnel here in NYC that I needed to submit a Request for Safe Pay which I completed immediately and submitted it on the 2nd of October to my chain of command. Much to my chagrin I still have not received a response to my petition. I requested the status of my request from my chain of command on the 22nd of March 2013, and, as I understand it, the request still has not left Ft. Hamilton for adjudication by the Regional Director and IMCOM Commanding General. I respectfully request your assistance in expediting the processing of my Request for Safe Pay. As you can imagine the loss of $7,653 per year is significant e specially as a single father of two teens where each cent counts. Although I understand under sequestration the request may be moot, that would not have been the case had my request been processed in a timely manner and not seven months after this initial request. I would be grateful for any help you could lend to expedite the processing. Thank you for your consideration. IAF, Tab 8, Subtab 13g.3 We agree with the administrative judge that s uch 3 Although the letter is dated April 22, 2012, this appears to be a typo graphical error and the correct date is April 22 , 2013. ID at 5 n.3. 6 assertio ns fail to amount to nonfrivolous allegations o f a protected disclosure.4 See, e.g. , El v. Department of Commerce , 123 M.S.P.R. 76 , ¶ 6 (2015) (finding that vague, conclusory, uns upported, and pro forma allegations of alleged wrongdoing do not meet the nonfrivolous pleading standard needed to establish the Board’s jurisdiction over an IRA appeal) , aff’d , 663 F. App’x 921 (Fed. Cir. 2016) . Moreover, the appellant consistently maint ained below that his request for optional pay retention was denied simply because he requested the assistance of Senator Gillibrand , without explaining how his letter amounted to a protected disclosure. IAF, Tab 1 at 5, 12 -13, Tab 4 at 4. ¶7 On review, the appellant summarily argues for the first time that his letter to Senator Gillibrand amounted to a disclosure of a n abuse of authority by the agency in misleading him, reducing his pay and grade, and arbitrarily and capriciously delaying the processing of his pa y retention request.5 PFR File, Tab 4 at 13. The Board will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). The appellant has not 4 In Hessami v. Merit Systems Protection Board , 979 F.3d 1362 , 1369 (Fed. Cir. 2020), the Federal Circuit cautioned that when evaluating Board jurisdiction over a whistleblower reprisal claim, the Board may not deny jurisdiction by crediting the agency’s interpretation of the evidence. However, the Board need not consider the appellant’s allegations “ in a vacuum, ” and may con sider sources such as matters incorporated by reference or integral to the claim. Id. at 1369 n.5. Although in this case the agency submitted a copy of the appellant’s alleged protected disclosure, rather than the appellant, the appellant does not disput e that the document is authentic and, in fact, he cites to it in his petition for review . PFR File, Tab 4 at 8, ¶ 13. Because the document is undisputed and integral to the appellant’s claim, and because we rely on the document itself rather than the age ncy’s interpretation of it, we find it appropriate to consider the document notwithstanding its source. 5 On review, the appellant also argues that he raised nonfrivolous allegations that his disclosure was a contributing factor in the denial of his pay re tention request. PFR File, Tab 4 at 14 -16. However, we need not reach such arguments in light of our finding that the appellant failed to nonfrivolously allege that he made a protected disclosure. 7 explained why he could not have raised such an argument below , when he was given an opportunity to do so. ¶8 Nonetheless, we find that he has not made a nonfrivolous allegation that he made a protected disclosure because he has offered no facts showing that , in writing to Senator Gillibrand , he reasonab ly believed that he was disclosing an arbitrary or capricious exercis e of power by a F ederal official or employee that adversely affects the rights of any person or results in personal gain or advantage to himsel f or preferred other persons. See Linder v. Department of Justice , 122 M.S.P.R. 14 , ¶ 15 (2014). For example, in his letter , he did not identify any individual whom he be lieved to be responsible for the processing delay or indicate how or why any of that person’s actions amounted to an abuse of authority. See, e.g. , Loyd v. Department of the Treasury , 69 M.S.P.R. 684 , 688-90 (1996) (finding that the appellant’s complaint to Congress that the agency had assigned the person named as the subject of the appellant’s grievance to investigate and decide it co nstituted a nonfrivolous allegation of an abuse of authority). Rather, a plain reading of the letter reflects that, as the administrative judge found, the appellant was merely requesting assista nce in expediting his request. Thus, we find that a reasonab le person in the appellant’s position would not have believed that the April 22, 2013 letter disclosed an abuse of authority. Accordingly , we affirm the initial decision, dismissing the appellant’s appeal for lack of jurisdiction.6 6 We have reviewed the relevant legislation enacted durin g the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. 8 NOTICE OF APPEAL RIGHT S7 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with whi ch to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appro priate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law ap plicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible c hoices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in gen eral. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuanc e of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the followi ng address: 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicat ed 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 p articular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Cou rt of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the serv ices provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil a ction with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 10 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respec tive websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employmen t Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Op portunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunit y Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclos ures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). 11 If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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.go v. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on Dece mber 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for t he Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 12 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	VIGIL_WILLIE_NY_1221_15_0134_W_1_FINAL_ORDER_2045246.pdf	2023-06-29	null	NY-1221	NP
2,963	https://www.mspb.gov/decisions/nonprecedential/FERRELL_JACK_SF_0353_14_0344_B_1_FINAL_ORDER_2045310.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JACK FERRELL, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER SF-0353 -14-0344 -B-1 DATE: June 29, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Guillermo Mojarro , Upland, California, for the appellant. Scott L. Zielinski , Esquire , Long Beach, California, 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 remand initial decision, which denied his request for restoration . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings o f 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 t o follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initia l decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we con clude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to apply the Board’s decision in Cronin v. U.S. Postal Service , 2022 MSPB 13, clarify that the appeal is being dismissed for lack of jurisdiction rather than denied on the merits , and VACATE the administrative judge’s findings regarding the appellant’s discrimination and retaliation claims , we AFFIRM the initial decision. BACKGROUND ¶2 The agency employed the appellant as a Laborer Custodial at the Lakewood Post Office in Lakewood, California . Ferrell v. U.S. Postal Service , MSPB Docket No. SF-0353 -14-0344 -I-1, Initial Appeal File (IAF), Tab 5 at 36. He sustained an on -the-job injury in February 2000 . Id. at 27, 32. In December 2013, he submitted a handwritten note to the Lakewood Postmast er indicating that he wished to return to work at the agency’s Los Angeles C ustomer Call C enter (LACCC) with reasonable accommodation. IAF, Tab 1 at 9, Tab 5 at 35. Thereafter, o n or about February 6, 2014, he asked that his note be forwarded to the agen cy’s District Reasonable Accommodation Committee for assistance. IAF, Tab 5 at 34. On February 19, 2014, the appellant’s doctor completed a Form CA -17 (Duty Status Report) that cleared him to resume work within certain medical restrictions . Id. at 32. The appellant forwarded the Duty Status Report to the agency, which it received on February 26, 2014 . Id. In a 3 letter dated April 25, 2014, the agency notified the appellant that there was no work available for him within his medical limitations. IAF, T ab 23 at 88. On April 29, 2014, the Office of Workers’ Compensation Programs (OWCP) determined that the appellant had fully recovered from his work -related injury, effective that date. IAF, Tab 22 at 8 -11. ¶3 The appellant filed a Board appeal, claiming th at the agency improperly denied h is restoration request and discriminated against him . IAF, Tab s 1, 4. In an initial decision based on the written record, the administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 39, Initial Decision (ID) at 1. She found that the appellant failed to nonfrivolously allege that the agency arbitrarily or capriciously denied him restoration. ID at 6-8. In particular , she found no indication that the agency’s job search was geographically or otherwise inadequate. ID at 7. She further found that, absent an otherwise appealable action, the Boa rd lacked jurisdiction over his claims of discrimination. ID at 8. ¶4 The appellant filed a petition for review of the initial decision , challenging the administrative judge’s findings. Ferrell v. U.S. Postal Service , MSPB Docket No. SF-0353 -14-0344 -I-1, Petition for Review (PFR) File, Tab 1. Th e Board vacated the initial decision and remanded the appeal, finding that he made nonfrivolous allegations of jurisdiction entitling him to a hearing. Ferrell v. U.S. Postal Service , MSPB Docket No. SF-0353 -14-0344 -I-1, Remand Order ( July 21, 2016 ) (Remand Order) ; PFR File , Tab 5, Remand Order. Specifically, the Board found that the appellant made a nonfrivolous allegation that his denial of restoration was arb itrary and capricious when he claimed that the agency improperly failed to search th e LACCC when it performed its search for availab le work. Remand Order, ¶¶ 6 -7. The Board also found that the agency’s obligation to make efforts to restore the appellant to employment as a partially recovered employee ended on April 29, 2014, when he ful ly recovered from his work -related injury. Remand Order, ¶¶ 8-9. 4 ¶5 On remand, the administrative judge held a hearing and issued a remand initial decision. Ferrell v. U.S. Postal Service , MSPB Docket No. SF-0353 -14- 0344 -B-1, Remand File (RF), Tab 46, Tab 47, Remand Initial Decision (RID). She found that the agency’s failure to place the appellant in a rehabilitation position at the LACCC was not arbitrary and capricious because the appellant did not meet the criteria for such a position under the Memorandum of Understanding (MOU) between the agency and his union and that, even if he did meet the criteria, there were no available vacant positions during the relevant time period . RID at 5 -10. She defined the relevant time peri od for determining whether the agency acted arbitrarily and capric iously as being between February 26, 2014 (the date the agency received the appellant’s Duty Status Report ), and April 29, 2014 (the date he fully recovered from his work -related injury ). RID at 11-13. She further found that the agency performed a proper search for available work within his medical restrictions during that time period . RID at 13-18. Finally, she found that he failed to prove his claims of disability, race, and age discrim ination and retaliation for engaging in prior equal employment opportunity (EEO) activity. RID at 18 -25. Accordingly, she denied his restoration request. RID at 26. ¶6 The appellant has filed a petition for review of the remand initial decision. Ferrell v . U.S. Postal Service , MSPB Docket No. SF-0353 -14-0344 -B-1, Remand Petition for Review (RPFR) File, Tab 3. DISCUSSION OF ARGUME NTS ON REVIEW The appellant failed to establish jurisdiction over his restoration appeal. ¶7 The Board has jurisdict ion to review whether an agency’ s denial of restoration to a partially recovered employee was arbitrary and capricious. Bledsoe v. Merit Systems Protection Board , 659 F.3d 1097 , 1103 –04 (Fed. Cir. 2011), modified in part by regulation as stated in Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 10 (2016); 5 C.F.R. § 353.304 (c). Pursuant to the law and regulati ons in effect at the time this appeal was filed, to establish jurisdiction 5 over a restoration appeal as a partially recovered individual, the appellant must prove the following by preponderant evidence: (1) he was absent from his position due to a compens able injury; (2) he recovered sufficiently to return to duty on a part -time basis or to return to work in a position with less demanding physical requirements than those previously required of him; (3) the agency denied his request for restoration; and (4) the denial was arbitrary and capricious. Bledsoe , 659 F.3d at 1104 ; Latham v. U.S. Postal Service , 117 M.S.P.R. 400 , ¶ 10 (2012), overruled on other grounds by Cronin , 2022 MSPB 13 , ¶¶ 20 -21.2 It is undisputed that the appe llant meets the first three jurisdictional criteria. RID at 13. Therefore, the dispositive inquiry here is whether the appellant showed that the denial of his restoration request was arbitrary and capricious . ¶8 After the administrative judge issued the remand initial decision in this appeal, the Board issued a decision clarifying the fourth jurisdictional criterion in partial restoration appeals. Cronin , 2022 MSPB 13. In Cronin , the Board found that a denial of restoration is arbitrary and capricious if —and only if —the agency failed to meet its obligations under 5 C.F.R. § 353.301 (d). Id., ¶ 20. The Board explicitly overruled Latham and its progeny to the extent such precedent held that a denial of restoration may be arbitrary and capricious based on an agency’s failure to comply with its self -imposed restoration obligations, such as those provided in the agency’s Employee and Labor Relations Manual (ELM). Id. Accordingly, under Cronin , the Board’s sole inquiry in an appeal alleging an arbitrary and capricious denial of restoration to a partia lly recovered employee is whether the agency complied with its obligation under 5 C.F.R. § 353.301 (d) to 2 Bledsoe and Latham both apply the “preponderant evidence” standard , rather than the new “nonfrivolous allegation” standard. The new standard applies only in cases fi led on or after March 30, 2015. Practices and Procedures, 80 Fed. Reg. 4489, 4496 (Jan. 28, 2015) (codified in pertin ent part at 5 C.F.R. § 1201.57 ). Because the appellant filed his appeal prior to March 30, 2015, the new standard is inapplicable , and he must prove jurisdiction by preponderant evidence . 6 search within the local commuting area for vacant positions to which it can restor e the employee and to consider him for any such vacancies. Id. ¶9 Here, the administrative judge found that the agency conducted its first search for available positions within the appellant’s medical restrictions on March 3-4, 2014, and that it conducted a second search on April 21 -22, 2014 . RID at 13. She found that the agency searc hed a 50 -mile radius and that it utilized a broad search, placing no limitations in terms of tours or crafts . RID at 13-14. She further found that the appellant did not cha llenge the scope of the local commuting area or proffer any evidence that the agency’s 50 -mile radius search failed to encom pass his local commuting area. RID at 13 (citing Boutin v. U.S. Postal Service , 115 M.S.P.R. 241, ¶ 16 (2010) ). The appellant has not challenged these findings on review , and we discern no basis to disturb them. ¶10 Rather , the appellant continues to argue on review that the denial of restoration was arbitrary and capricious because there was available work for him in the form of vacant rehabilitation assignments at the LACCC. RPFR File, Tab 3 at 6-14. He claims f or the first time on review that , contrary to the administrative judge’s finding, he met the criteria for one of those assignments . Id. at 7, 13. ¶11 Under Cronin , the agency is required only to search for vacant positions to which it can restore a partially recovered employee and to consider him for any such vacancies. Cronin , 2022 MSPB 13 , ¶ 20. Therefore, even if the appellant met the criteria for a rehabilitation assignment , any alleged failure of the agency to search for vacant rehabilitation assignments that do not constitute the essential functions of an established position does not constitute a violation of 5 C.F.R. § 353.301 (d) under the clarified standard . RPFR File, Tab 3 at 7, 13, 17; see Cronin , 2022 MSPB 13 , ¶ 20. Moreover, e ven if the alleged rehabilitation assignments did constitute the essential functions of established positions, which the appellant does not allege , the administrative judge found, based on her thorough examination of the record evidence, that all positions at the LACCC either were filled or were required to be held vacant pending a suitability 7 determination by OWCP during the relevant time period. RID at 10 ; RF, Tab 25 at 10 . The appellant’s mere disagreement with this well -reasoned finding provides no basis to disturb it.3 See Diggs v. Department of Housing and Urban Development , 114 M.S.P.R. 464 , ¶ 8 (2010). Finally, to the extent that the appellant argues that the agency violated the ELM and the MOU when it failed to offer him a rehabilitation assignment at the LACC C, an agency’s failure to comply with its self-imposed obligations, such as the ELM and the MOU , cannot itself constitute a violation of 5 C.F.R. § 353.301 (d) such that a resulting denial of restoration would be rendered arbitrary and capricio us for purposes of establishing Board jurisdiction under 5 C.F.R. § 353.304 (c). RPFR Fi le, Tab 3 at 7-14; see Cronin , 2022 MSPB 13 , ¶ 20. ¶12 The appellant further argues that the agency failed to fully disclose evidence he sought in discovery concerning the rehabilitation assignments at the LACCC . RPFR File, Tab 3 at 6 . The appellant did not file a motion to compel such evidence , however, and his failure to file such a motion below precludes him from raising the issue on review. See Szejner v. Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5 (2005), aff’d , 167 F. App’x 217 (Fed. Cir. 2006). In any event, the evid ence he seeks is not relevant to the dispositive issue here , i.e., whether the agency met its minimum obligations under 5 C.F.R. § 353.301 (d). See Cronin , 2022 MSPB 13, ¶ 20. ¶13 In addition , we have reviewed the appellant’s alleged new evidence submitted on review and have determined tha t it is either contained in the record 3 For instance, the appellant claims, as he did below, that he was aware of 14 vacant rehabilitation assignments because he knew of 14 people who had rejected rehabilita tion assignment offers. RPFR File, Tab 2 at 6; IAF, Tab 4 at 6 -8, Tab 6 at 5. However, as the administrative judge explained, any rehabilitation assignment offer that was made but not accepted was referred to the Department of Labor for a suitability determination and that assignment was required to be kept available for the individual pursuant to OWCP requirements pending a determination. RID at 7, 10. Accordingly, this argument provides no basis to disturb the administrative judge’s finding that the search yielded no available, vacant positions to which the appellant could be restored. 8 below or is not material to his appeal. RPFR File, Tab 3 at 15 -18; RF, Tab 12 at 7-8. Therefore, it provides no basis to disturb the administrative judge ’s findings . 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 w arrant an outcome different from that of the initial decision); Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980) (holding that evidence that is already a part of the record is not new). ¶14 In sum , the administrative judge found, and we agree, that the agency properly searched within the local commuting area for vacant positions to which it could restore the appellant b ut that there were no available positions. RID at 12-18. Therefore, we find that the agency has f ulfilled its minimum obligations under 5 C.F.R. § 353.301 (d) and that the appellant has failed to show that his denial of restoration was arbitrary and capricious . Accordingly, we find that the Board lacks jurisdiction over the appellant’s partial restoration appeal . ¶15 Absen t an otherwise appealable action, we also lack jurisdiction to address the appellant’s claims of discrimination and retaliation. See Cronin , 2022 MSPB 13, ¶ 22. We therefore vacate the administrative judge’s findings concerning the appellant’s claims of disability, race, and age discrimination and retaliation for engaging in prior EEO activity. RID at 18 -25. 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 decis ion. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the n otice, the Board cannot advise which option is most appropriate in any matter. 9 summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights descr ibed below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow a ll filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one app lies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the fo llowing address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 10 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representati ve receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, nati onal origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the 11 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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, 20 17. The All Circuit Review Act, signed into law by the President on 12 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circu it 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorn ey will accept representation in a given case. July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	FERRELL_JACK_SF_0353_14_0344_B_1_FINAL_ORDER_2045310.pdf	2023-06-29	null	SF-0353	NP
2,964	https://www.mspb.gov/decisions/nonprecedential/HUBBARD_PATRICIA_E_AT_0353_13_7341_B_3_FINAL_ORDER_2045339.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD PATRICIA E. HUBBARD, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER AT-0353 -13-7341 -B-3 DATE: June 29, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 John R. Macon , Memphis, Tenness ee, for the appellant. Lori L. Markle , Esquire, Philadelphia, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed h er restoration appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpret ation 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 MS PB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as a n Opinion and 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 a buse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federa l Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1 201.115 for granting 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 ¶2 The appellant is a Mail Handler at the agency’s Air Mail Center in Memphis, Tennessee. Hubbard v. U.S. Postal Service , MSPB Docket No. AT-0353 -13-7341 -I-1, Initial Appeal File (IAF), Tab 1 at 1, Tab 7 at 63. She suffered an on -the-job i njury to her left rotator cuff in 2004. IAF, Tab 7 at 77. She also developed deep vein thrombosis following post -operative repair of her rotator cuff. Id. at 43. As part of the National Reassessment Process, the agency placed the appellant off work on or about Au gust 11, 2010. She appealed that action to the Board , and, after that case settled, she returned to work at the agency. After the appellant sustained additional on -the-job injuries, on September 21, 2012, April 23, 2013, and June 13, 14, and 1 8, 2013, respectively, she underwent a series of medical examinations and continued to return to work with significantly reduced medical restrictions. Id. at 31, 35 -47, 61. She filed claims for compensation with the Office of Workers’ Compensation Progra ms (OWCP), which OWCP accepted for her injuries to her back and neck, left elbow , left rotator cuff , as well as her deep vein thrombosis condition . IAF, Tab 7 at 35, 43, 77, Tab 10 at 19-20. As a result of her injuries, the appellant worked various 3 limit ed-duty assignments for many years . IAF, Tab 7 at 53-59, 65 -72. Most recently , she performed work repairing damaged letters. Hubbard v. U.S. Postal Service , MSPB Docket No. AT -0353 -13-7341 -B-1, Remand File (B -1 RF), Tab 22, Hearing Compact Disc (testimo ny of the appellant). ¶3 On August 9, 2013, the agency offered the appellant a limited -duty assignment, which included , among other things, repairing damaged mail including letters and flats. IAF, Tab 7 at 28. The appellant refused the offer , explaining that damaged flats were too heavy for her to lift and that she was planning to have her left elbow repaired. Id. at 2 8-29. As a result of the appellant’s refusal to accept the job offer, the agency sent her home. Id. at 26 . ¶4 On September 6, 2013, t he appellant filed a Board a ppeal . IAF, Tab 1. The administrative judge dismissed the appeal for lack of jurisdiction , finding that the appellant failed to nonfrivolously allege that she was absent from her position due to a compensable injury because OWCP had not approved her claim for compensation for her left elbow injury. Hubbard v. U.S. Postal Service , MSPB Docket No. AT-0353 -13-7341 -I-1, Initial Decision (Nov . 12, 2013). ¶5 The appellant file d a petition for review, and the full Board remanded the appeal, finding that she had presented evidence below that OWCP had approved her claim for compensation for her elbow injury. Hubbard v. U.S. Postal Service , MSPB Docket No. AT -0353 -13-7341 -I-1, Remand Order , ¶ 4 (Nov . 25, 2014) (Remand Order) . The Board furthe r found that the appellant established that she was denied restoration due to a December 11, 2013 OWCP determination that the agency’s August 9, 2013 limite d-duty job offer was unsuitable based on medical docum entation dated August 14, 2013 , and October 29 , 2013. Id., ¶ 8. Finally, the Board also found that the appellant nonfrivolously alleged that the agency acted arbitrarily and capriciously when it sent her home on August 9, 2013, and remanded the appeal for a jurisdictional hearing on this issue. Id., ¶ 9. The Board noted, however, that the agency may not have acted arbitrarily and 4 capriciously to the extent it believed in good faith that it would receive a favorable suitability determination from OWCP. Id. ¶6 On remand, after holding a hearing, the a dministrative judge dismissed the appeal for lack of jurisdiction. Hubbard v. U.S. Postal Service , MSPB Docket No. AT-0353 -13-7341 -B-3, Remand File (B-3 RF), Tab 10, Remand Initial Decision ( RID).2 The administrative judge credited the appellant’s superv isor’s testimony that he considered the appellant’s medical restrictions, understood that her medical restrictions prevented her from lifting more than five pounds , but that he believed the August 9, 2013 job offer complied with her medical restrictions because flats , which are typically magazines, do not weigh more than five pounds . RID at 6 -8. He further credited the appellant’s supervisor’s testimony that d amaged mail is brought to limit ed-duty employees to repair while they are seated at a table , and the mail is placed next to the table in various manners to provide the limited -duty employee s easy access to the letters and flats . RID at 7. Thus, the administrative judge found that the agency believed in good faith that it would receive a favorable su itability determination from OWCP , and so the appellant had not met her burden of proving that the agency acted arbitrarily and capriciously. RID at 8. ¶7 The appellant has filed a petition for review in which she disputes that the August 9, 2 013 job offer was within her medical restriction s and contends that the agency acted arbitrarily and capriciously in sending her home on August 9, 2013 , without first allowing her to have her doctor review the job offer. Hubbard v. U.S. Postal Service , MSPB Docket No. AT-0353 -13-7341 -B-3, Petition for Review ( B-3 PFR) File, Tab 1. The agency has not responded to the appellant’s petition. 2 On remand, the appeal was dismissed without pr ejudice on two occasions due to uncertainty over an OWCP witness ’s testimony. B-3 RF, Tab 1. 5 DISCUSSION OF ARGUME NTS ON REVIEW ¶8 The Board has jurisdict ion to review whether an agency’ s denial of restoration to a partially recov ered employee was arbitrary and capricious. Bledsoe v. Merit Systems Protection Board , 659 F.3d 1097 , 1103 -04 (Fed. Cir. 2011), supersed ed in pa rt by regulation as stated in Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 10 (2016); 5 C.F.R. § 353.304 (c). To establish jurisdiction over a restoration appeal as a partially recovered individual under the law applicable to this appeal , the appellant must prove the following by preponderant evidence:3 (1) she was absent from h er position due to a compensable injury; (2) she recovered sufficiently to return to duty on a part -time basis or to return to work in a position with less demanding physical requirements than those previously required of h er; (3) the agency denied h er request for restoration; and (4) the denial was arbitrary and capricious. Bledsoe , 659 F.3d at 1104 ; Latham v. U.S. Postal Service , 117 M.S.P.R. 400 , ¶ 10 (2012), superseded in part by regulation as stated in Kingsley , 123 M.S.P.R. 365 , ¶ 10, and overruled on other grounds by Cronin v. U.S. Postal Service , 2022 MSPB 13 , ¶¶ 20-21. Preponderant evidence is the “degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4 (q). ¶9 After the administrative judge issued his initial decision, the Board issued a decision clarifying the fourth jurisdictional criterion in partial restoration appeals. Cronin , 2022 MSPB 13.4 In Cronin , the Board found that a denial of restoration 3 We have applied the preponderant evidence jurisdictional standard for restoration appeals set forth by the U.S. Court of Appeals for the Federal Circuit in Bled soe, 659 F.3d at 1103 -04, instead of the nonfrivolous standard set forth in 5 C.F.R. § 1201.57 because this appeal was filed on September 6, 2013, prior to the March 30, 2015 effective d ate of the Board’s revised regulation. 4 Because the Board issued Cronin while this appeal was pending, it is given retroactive effect and applies to this appeal. Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 18 n.8. 6 is arbitrary and capricious if —and only if —the agency failed to meet its obligations under 5 C.F.R. § 353.301 (d). Id., ¶ 20. The Board explicitly overruled Latham and its progeny to the extent such precedent held that a denial of restoration may be arbitrary and capricious based on an agency’ s failure to comply with its self -imposed restoration obligations. Id. Accordingly, u nder Cronin , the Board’s sole inquiry in an appeal alleging an arbitrary and capricious denial of restoration to a partially recovered employee is whether the agency complied with its obligation under 5 C.F.R. § 353.301 (d). Id. Determining whether an agency met its obligation under section 353.301(d) will turn on whether it “ma[d]e every effort” to re store a partially recovered employee “in the local commuting area” and “according to the circumstances in each case.” Id., ¶ 21 (quoting 5 C.F.R. § 353.301 (d)). ¶10 The sole issue on rema nd in this appeal concerns the fourth jurisdictional criterion, i.e., whether the appellant proved by prepond erant evidence that the agency acted arbitrarily and capriciously when it sent her home on August 9, 2013 , after she refused the limited -duty job o ffer. Remand Order, ¶ 9. The administrative judge found that , because the appellant’s supervisor believed in good faith that the limited -duty job offer was within the appellant’s then -existing medical restrictions, the appellant failed to show that the a gency acted arbitrarily and capriciously . RID at 8. We discern no basis to disturb this conclusion. ¶11 On review, the appellant reiterates her arguments that the agency failed to consider her elbow condition and that the job offer did not comply with her medical restrictions, which prevented her from bending and reaching inside of an 80-pound tub containing a mixture of mail weighing up to five pounds or more . B-3 PFR File, Tab 1 at 4. However, the administrative judge credited the appellant’s supervisor’ s testimony that he considered all of the appellant’s then-existing medical restrictions and that the job offer did not require the appellant to lift more than five pounds. RID at 6-8 & n.4 . The administrative judge further credited the supervisor’s testimony that limited -duty employees 7 repaired damaged mail while seated at a table and there were various ways in which the agency made damag ed mail easily accessible for limited -duty employee s. RID at 7. For example, the supervisor recounted that the damage d mail was often brought to limited -duty employees in flat tubs and letter trays that could be placed on their sides for easy ac cess to the mail , empty containers could be placed upside down in larger containers with mail and flats on top of the empty cont ainers and wheeled next to the limited -duty employ ees while they were seated for easy access to the mail , and at times a netting was used inside larger containers to allow easy access to the mail . Id. In addition, the administrative judge found that the appellant offered no credible evidenc e to support her claim that flats weighed more than five pounds. Id. at 8. ¶12 On review, the appellant does not dispu te any of these findings, and we discern no reason to disturb them. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997) (finding no reason to d isturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility ); Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987) (same). Thus, although the agency here admittedly did not search the broader local commuting area for a position for the appellant, IAF, Tab 9 at 9, given the circumstances of this case, i.e., that the agency believed, in good faith, that it had placed the appellant in a suitable limited -duty position at her current facility , any such search was not required , IAF, Tab 7 at 26, 28 -29; RID at 6 -8; see Cronin , 2022 MSPB 13, ¶ 21; see also Paszko v. U.S. Postal Service , 119 M.S.P.R. 207 , ¶ 10 (2013) (explaining that an agency’s failure to search the entire local commuting area for alternative assignments does not necessarily render the denial of restoration arbitrary and capricious if it had a sufficient explanat ion, such as a reasonable expectation of a favorable suitability ruling from OWCP on a prior job offer). 8 ¶13 The appellant also reiterates her argument that the agency acted arbitrarily and capriciously in not allowing her to have her physician review the jo b offer before sending her home. B-3 PFR File, Tab 1 at 2. The administrative judge considered this argument but found that the appellant failed to identify any authority that obligated the agency to do so. RID at 8 -9 n.5. We agree with this finding. Moreover, because the Board has since clarified that an agency’s failure to comply with its self -imposed restoration obligations is not material for purposes of the fo urth jurisdictional criterion, Cronin , 2022 MSPB 13, ¶ 20, even if the appellant had successfully identified an internal agency obligation that mandated the review she sought , a different outcome would not be warrant ed.5 ¶14 Accordingly, we affirm the initial decision, dismissing the appeal for lack of jurisdiction. NOTICE OF APPEAL RIG HTS6 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1 ). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should 5 As set forth in the initial decision, the appellant ostensibly alleged that the agency’s disallowance of a review by her physician evinced disability discri mination. RID at 8 -9 n.5. To the extent the appellant reasserts on review that the agency engaged in such discrimination , B-3 PFR File, Tab 1 at 2, a different outcome is not warranted. Indeed, the Board has clarified that claims of prohibited discrimin ation or reprisal cannot serve as an “alternative means” of showing that a denial of restoration was arbitrary and capricious . Cronin , 2022 MSPB 13, ¶ 21. 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appro priate in any matter. 9 immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular foru m is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S . Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petit ion for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informa tion about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 (2) Judicial or EEOC re view of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after yo ur representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of a ny requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, e xcluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your re presentative receives this decision. 11 If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If yo u submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20 507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Cou rt of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the P resident on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competen t jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 12 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitio ners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our web site at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HUBBARD_PATRICIA_E_AT_0353_13_7341_B_3_FINAL_ORDER_2045339.pdf	2023-06-29	null	AT-0353	NP
2,965	https://www.mspb.gov/decisions/nonprecedential/HARRELL_GINA_AT_0752_16_0818_I_2_FINAL_ORDER_2045357.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD GINA HARRELL, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER AT-0752 -16-0818 -I-2 DATE: June 29, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Gina Harrell , Hampton, Georgia, pro se. Patricia Edgehille , Norwood, Massachusetts, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 The appellant has f iled a petition for review of the initial decision, which affirmed her indefinite suspension. 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 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 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 findings of material fact; the initi al decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consis tent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting 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 ¶2 On July 14, 2016, the agency proposed indefinitely suspending the appellant , a GS -14 Postal Inspector, based on a two -count A ccusation filed in state court and supported by county police reports charging her with one count of Following Too Closely and one count of H it and Run, offenses for which the agency claimed it had reasonable cause to believe she had committed a crime for which a sentence of imprisonment may be imposed. Harrell v. U.S. Postal Service , MSPB Docket No. AT-0752 -16-0818 -I-1, Initial Appeal File (IAF), Tab 1 at 1, 10 -12. After granting the appellant an extension of time to respond to the proposal, the agency i ssued its decision to indefi nitely suspend her, effective August 18, 2016, and continuing until the resolution of the criminal charges against her .3 Id. at 8-9. 3 Although the agency initially appeared to be rely ing on the crime exception to shorten the advance notice period, the record reflects that the agency gave the appellant more than 30 days ’ notice before effecting her suspension , issuing its notice on July 14, 2016, and, after extending the time for her re sponse, effecting the appellant’s indefinite suspension on August 16, 2016. IAF, Tab 1 at 6 -10; see 5 U.S.C. § 7513 (b); see also Perez v. Department of Justice , 480 F.3d 1309 , 1311 -12 (Fed. Cir . 2007) . 3 ¶3 In her appeal to the Board , the appellant argued that the agency lacked the requisite reason able cause to indefinitely suspend her. Id. at 6. She also claimed disparate treatment, arguing that another employee in her division was placed on administrative leave, rather than on an indefinite suspension, after he allegedly possessed a firearm on a gency property. Id. The agency moved to dismiss the appeal without prejudice until the resolution of the criminal charges , and the appellant responded in opposition, requesting a prompt ruling on the agency’s motion. IAF, Tabs 11, 13 -14. The administrative judge granted the agency’s motion and dismissed the appeal without prejudice until the criminal charges against the appellant were resolved . IAF, Tab 15 , Initial Decision . ¶4 The appellant , who was represented by counse l below , promptly refiled her appeal , and, “to alleviate any concern the Board has with her testifying” while her criminal matter was still pending, she withdrew her request for a hearing, as well as her affirmative defenses , and requested that the adminis trative judge promptly decide the matter on the written record. Harrell v. U.S. Postal Service , MSPB Docket No. AT -0752 -16-0818 -I-2 (I-2 AF), Tab 1. Based on the appellant’s waiver of her hearing request and affirmative defenses, the administrative judge issued an order setting a date for the close of the record and allow ing the agency an opportunity to object to the refiling of the appeal. I -2 AF, Tab 2. The parties subsequently entered joint stipulations into the record in which the appellant acknowle dged that the Henry County Police Department had arrested and charged her by A ccusation in criminal court with Following Too Closely and Hit and Run. I-2 AF, Tab 4 at 4. Both parties also submitted closing briefs. I -2 AF, Tabs 5 -6. ¶5 On the written reco rd, the administrative judge issued an initial decision that affirmed the appellant’s indefinite suspension, finding that the police reports the agency relied upon were sufficient to provide a reasonable basis for suspending her. I-2 AF, Tab 7, Initial De cision (ID) at 8 -10. Moreover, the 4 administrative judge found that , because the Accusation4 filed by the di strict attorney, which charged the appellant with one count of Following Too Closely, in violation of Official Code of Georgia Section 40 -6-49, and one count of Hit and Run; Duty of Driver to Stop at or Return to Scene of Accident, in violation of Official Code of Georgia Section 40 -6-270, carried a potential statutory penalty that included incarceration, the Accusation provided reasonable cause to believe that the appellant committed a crime for which a sentence of imprisonment could be imposed. ID at 8 -9. The administrative judge also found that the indefinite suspension was reasonable and had an ascertainable end and that the agency proved there was a nexus between the appellant’s alleged misconduct and the efficiency of the service . ID at 10-11. ¶6 In her timely filed petition for review , the appellant contends that the agency relied on incomplete evidence because it failed to independently follo w up on her explanation for what happened or to interview the sole eyewitness to the event. Petition for Review (PFR) File, Tab 1 at 4. She asserts that she always has taken responsibility for the accident and did not intentionally leave the scene. Id. The agency responds in opposition to the petition for review. PFR File, Tab 3. DISCUSSION OF ARGUME NTS ON REVIEW ¶7 An indefinite suspension lasting more than 14 days is an adverse action appealable to the Board under 5 U.S.C. § 7513 (d). 5 U.S.C. § 7512 (2); e.g., Henderson v. Department of Veterans Affairs , 123 M.S.P.R. 536, ¶ 5 (2016) , aff’d , 878 F.3d 1044 (Fed. Cir. 2017) . To establish that an indefinite suspension is valid, the agency must show the following : (1) it imposed the suspension for an authorized reason ; (2) the suspension has an ascertainable end; (3) there i s a 4 The administrative judge also found that the Accusation filed by the Henry County District Attorney’s office was entitled t o the same evidentiary weight as a criminal indict ment issued by a grand jury. ID at 9. 5 nexus between the alleged misconduct and the efficiency of the service; and (4) the penalty is reasonable. Henderson , 123 M.S.P.R. 536, ¶ 5. As relevant here, one authorized circumstance for imposing an indefinite suspension is when the agency has reasonable cause to believe that an employee has committed a crime for which a sentence of imprisonment could be imposed. Id.; Gonzalez v. Department of Homeland Security , 114 M.S.P.R. 318 , ¶ 13 (2010) (enumerating a nonexhaustive list of the three circu mstances in which the Board and our reviewing court have approved the u se of an indefinite suspension) . ¶8 As noted above, the administrative judge found that the agency had reasonable cause, based on the Accusation filed by the district attorney, to believ e that the appellant had committed a crime for which a sentence of imprisonment could be imposed and that the suspension had an ascertainable end, bore a nexus to the efficiency of the service, and was a reasonable penalty under the circumstances. ID at 8 -11. On review, the appellant generally reasserts the arguments she set forth below, but she only specifically challenges the administrative judge’s finding of reasonable cause. PFR File, Tab 1 at 4. She asserts that the administrative judge mistakenly interpreted the law and argues that the agency erred by failing to conduct its own investigation into the alleged misconduct. Id. For the following reasons, we disagree. ¶9 The Board has found that “reasonable cause” in the context of an indefinite suspension based on possible criminal misconduct is virtually synonymous with “probable cause,” the standard necessary to support a grand jury indictment, i.e., probable cause to believe that a crime has been committed and that the accused has probably committed it. Henderson , 123 M.S.P.R. 536, ¶ 7. An arrest warrant alone is in sufficient to meet this standard ; however, the warrant “coupled with” other factual material obtained from a criminal complaint and supporting allegations may provide the agency with reasonable cause . Henderson , 878 F.3d at 1049 -50 (citing Dunnington v. Department of Justice , 956 F.2d 1151 , 1157 -58 (Fed Cir 1992)). Moreover, as a general rule, a formal judicial determination 6 followin g a preliminary hearing or an indictment following an investigation and grand jury proceedings is sufficient to meet the reasonable cause standard . Id. at 1050 (citing, among other cases, Dunnington , 956 F.2d at 1157 ). ¶10 We agree with the administrative jud ge that both the police reports and the Accusation filed by the district attorney sufficiently provide the reasonable cause necessary to sustain the appellant’s indefinite suspension. ID at 8-10; IAF, Tab 5 at 12 -22, 25 -26. The touchstone of a finding of “reasonable cause” must be whether the agency had sufficient facts to provide a sound basis for its action . Ellis v. Department of Veterans Affairs , 60 M.S.P.R. 681, 683 (1994) (citing Dunnington , 956 F.2d at 1157 ). The administrative judge found the sum of the agency’s evidence in support of its decision to indefinitely suspend the appellant showed that she struck a bicyclist from behind while she was driving and that she failed to either stop or render aid. ID at 8 ; IAF, Tab 5 at 12 -22. The evidence recounted the statement of an eyewitness who saw the bicyclist fly through the air and then followed the appellant’s car as she left the scene and reported her license plate number to the police. IAF, Tab 5 at 13. The statement of a police officer involved in the investigation recounted the fac t that the appellant already had filed a claim with her insurance company and was at a collision repair shop to have her vehicle fixed when he tracked her down in the aftermath of the accident. Id. at 17. Several officers remarked that they found car par ts at the scene of the accident, including a passenger side rear view mirror, which matched the description of the appellant’s vehicle. Id. at 13, 17, 19. In light of the strength of this evidence, we discern no error in the agency’ s decision not to cond uct an independent investigation. See Hernandez v. Department of the Navy , 120 M.S.P.R. 14 , ¶¶ 15-16 (2013) (finding that the reasonable cause requirement was satisfied, notwithstanding that the agency proposed the indefinite suspension based upon court documents and did not conduct an independent investigation into the criminal charges, because the district attorney had filed a complaint and the employee had been ordered to appear for a jury trial) ; see also Henderson , 7 878 F.3d at 1050 (finding that the agency had no obligation to conduct further investigation after the appellant’s indictment before suspending him and suggesting that such an investigation would in fact be disfavored). ¶11 We also agree with the administrative judge’s finding that the indefinite suspension in this matter has an ascertainable end, i.e., resolution of the criminal charges against the appellan t, that the agency demonstrated the requisite nexus between the appellant’s misconduct and the efficiency of the service, and that the penalty is within the bounds o f reasonableness. ID at 10 -11; see White v. U.S. Postal Service , 22 M.S.P.R. 452 , 454 -57 (1984) (sustaining the indefinite suspension of a Postmaster indicted for tampering with evidence following his attempt to get his car repaired after a hit and run accident ), aff’d, 768 F.2d 334 (Fed. Cir. 1985). The appellant does not specifically challenge these findings on review. Accordingly , we deny the appellant’s petition for review and affirm the initial decision. NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the natu re of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal r ights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their juris diction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, th e Board cannot advise which option is most appropriate in any matter. 8 filing time limits and requirements. Failure to file within the applicable time limit may result in the d ismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. C ourt of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Sy stems Protection Board appellants before the 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 (2) Judicial or EEOC review of cases involving a cl aim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representativ e receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement o f prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receive s this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 10 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request fo r review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegat ions of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for th e 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 o r any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitione rs and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney w ill accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HARRELL_GINA_AT_0752_16_0818_I_2_FINAL_ORDER_2045357.pdf	2023-06-29	null	AT-0752	NP
2,966	https://www.mspb.gov/decisions/nonprecedential/WENTLER_TYLER_L_CH_0752_17_0046_I_1_FINAL_ORDER_2045396.pdf	`UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TYLER L. WENTLER, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER CH-0752 -17-0046 -I-1 DATE: June 29, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Stephen T. Fieweger , Esquire, Davenport, Iowa, for the appellant. Emily L. Macey , Rock Island, Illinois, 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 indefinite suspension based on the suspension of his access to classified materials . 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). However, we VACATE several of the administrative judge’s 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 finding s regarding the agency’s suspension of the appellant’s access to classified materials , MODIFY the initial decision to find that the Board lacks jurisdiction over such action , and AFFIRM the initial decision in all other respects . Except as expressly indicated in this Final Order, the initial decision of the administrative judge is the Board’s fina l decision. BACKGROUND ¶2 As properly described in the initial decision, the appellant holds a Contract Specialist position with the Army Contracting Command in Rock Island, Illinois. Initial Appeal File (IAF) , Tab 20, Initial Decision (ID) at 1. He filed a Board appeal of the agency’s suspension of his access to classified materials , effective October 16, 2015, and the agency’s decision to indefinitely suspend him without pay pending the final adjudication of his eligibility for a security clearance, effect ive December 12, 2015 . Id. Based on the written record , the adm inistrative judge issued an initial decision affirming the agency’s action s. ID at 1-2, 11. ¶3 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The ag ency has not filed a response. DISCUSSION OF ARGUME NTS ON REVIEW The appellant has failed to show good cause for the 1 -day delay in filing his petition for review. ¶4 Generally, a petition for review must be filed within 35 days after the issuance of the initial decision, or, if the petitioner shows that he received the initial decision more than 5 days after the date of issuance, within 30 days after the date he received the initial decision. 5 C.F.R. § 1201.114 (e). Here, the administrative judge informed the appellant that the initial decision dated February 1 6, 201 7, would become the Board’s final decision on March 23, 2017, unless either party filed a petition for review by that date . ID a t 11. She further informed him that, if he received the initial decision more than 5 days after the date of issuance, he could file a petition for review within 30 days after the date 3 of receipt. Id. In addition, she notified him that the 30 -day period would begin to run upon either his or his representative’s receipt of the initial decision, whichever occurred first. Id. ¶5 The certificate of service reflects that, on February 16, 2017, the initial decision was sent both by mail to the appellant’s address of record and by email to his attorney , who had registered as an e -filer. IAF, Tab 13 at 6, Tab 21 ; see 5 C.F.R. § 1201.14 (e)(1) (stating that a party or repr esentative may not file an electronic pleading with the Board unless he or she has registered as an e -filer) ; 5 C.F.R. § 1201 .14(m)(2) (explaining that Board documents served electronical ly on registered e -filers are deemed received on the date of electronic submission) . The appellant has not argued that he or his attorney did not receive the initial decision. W e further find that the deadline for filing the petition for review was March 23, 2017 , as stated in the initial decision . ID at 11; see 5 C.F.R. § 1201.114 (e). ¶6 The appellant filed a petition for review on March 24, 2017 , one day past the filing deadline.2 In an acknowledgment letter, the Clerk of the Board informed the appellant that his petition for review was untimely filed and that he could file a motion with the Board to accept his filing as timely or to waive t he time limit for good cause. PFR File, Tab 2. The letter also stated that the motion must be sent by April 14 , 201 7. Id. at 2. The appellant has not filed any argument or evidence concerning the timeliness of his petition for review. ¶7 The Board may waive the time limit for filing a petition for r eview upon a showing of good cause for the filing delay . 5 C.F.R. § 1201.114 (f)-(g). To 2 Although the appellant’s attorney certified that he mailed the petition for review on March 23, 2017, the postmark date contained on the mailing was March 24, 2017. PFR File, Tab 1 at 5 -6. He mailed the petition to the Board’s Central Regional Office, which then forwarded it to the Office of the Clerk of the Board. Id. at 1-2, 6. A pleading submitted by mail generally is considered filed on the postmark date, even when submitted to the wrong Boa rd office. Branch v. Department of the Army , 110 M.S.P.R. 663 , ¶¶ 6 -7 (2009); 5 C.F.R. § 1201.4 (l). Thus, we find that the filing date of the appellant’s petition for review is the March 24, 2017 postmark date. 4 establish good cause, the appellant must show that he exercised due diligence or ordinary pruden ce under the particular circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). To determine whether an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of his excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidenc e of the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62 -63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table). ¶8 Here, a lthough the brevity of the appellant’s 1 -day filing delay weighs in favor of finding good cause, we find that the minimal length of the delay is outweighed by the remai ning Moorman factors. See Skaggs v. Merit Systems Protection Board , 364 F. App’x 623, 626-27 (Fed. Cir. 2010) (affirming the Board’s decision finding that the appellant failed to show good cause for the 1-day delay in filing his initial appeal when his at torney was negligent )3; see also McBurnett v. Department of the Army , 37 M.S.P.R. 395, 396 -97 (1988) (finding that negligence on the part of the appellant’s attorney did not constitute good cause for the 1 -day delay in filing his initial appeal) . The fact that the appellant has been represented by an attorney throughout the appeal weighs against a finding of good cause. See Marcantel v. Department of Energy , 121 M.S.P.R. 330, ¶ 11 (2014) (affirming the initial decision that dismissed the appellant’s initial appeal as untimely filed without good cause shown). We find that the appellant and his attorney were aware of the filing deadline after receiv ing clear 3 The Board has held that it may rely on unpublished decisions of the U.S. Court of Appeals for the Federal Circuit if, as here, it finds the court’s reasoning persuasive. E.g., Vores v. Department of the Army , 109 M.S.P.R. 191 , ¶ 21 (2008), aff’d , 324 F. App’x 883 (Fed. Cir. 2009). 5 notice in the initial decision , and they were provided with an opportunity to respond on the timeliness issue on review . PFR File, Tab 2; ID at 11. We further find that the appellant’s failure to address the timeliness of his petition for review and the lack of evidence of circumstances beyond his control or of unavoidable casualty or misfortune that prevented him from filing a timely petition for review weigh against finding good cause . See Cabarloc v. Department of Veterans Affairs , 112 M.S.P.R. 453, ¶¶ 9 -10 (2009) (finding no good cause for the pro se appellant’s 10 -day delay in filing a petition for review when he failed to respond to the Clerk’s notice regarding timeliness). Therefore , under the particular circumstances o f the case , we find that the appellant has failed to establish good cause for his untimely filing. The suspension of the appellant’s access to classified information is not an adverse action appealable to the Board. ¶9 For the following reasons, we vacate several of the administrative judge’s finding s regarding the agency’s suspension of the appellant’s access to classified materials, and we modify the initial decision to find that the Board lacks jurisdiction over such action .4 Specifically, w e find that the administrative judge erred in finding that the Board has jurisdiction to review whether the agency committed harmful procedural error in effecting the suspension of the appellant’ s access to classified information . ID at 4. In so finding, the administrative judge cited Rogers v. Department of Defense , 122 M.S.P.R. 671 , ¶ 7 (2015) , for the propos ition that the Board has the authority under 5 U.S.C. § 7701 (c)(2)(A) to review whether the agency committed a harmful procedural error in suspending his access to classified information . ID at 4. However, as the administrative 4 Although we are dismissing the appellant’s petition for review as untimely, the issue of the Board’s jurisdiction may be raised at any time during a proceed ing. Morgan v. Department of the Navy , 28 M.S.P.R. 477 , 478 (1985) ; see 5 C.F.R. § 1201.115 (e). Further, the Board has inherent authority to determine whether a matter is within its jurisdiction. Lloyd v. Small Business Administration , 96 M.S.P.R. 518 , ¶ 16 (2004) . Therefore, we find that it is appropriate to raise the jurisdictional issue here. 6 judge properly found, the suspension of the appellant’s access to classified materials, without a loss in pay, is not an appealable adverse action. Id.; see 5 U.S.C. §§ 7501 (2), 7512, 7513(d); Abbott v. U.S. Postal Service , 121 M.S.P.R. 294, ¶ 6 (2014) (defining a “suspension” as the tempor ary placement of an employee in a nonpay, nonduty status). Thus , we find that the administrative judge ’s reliance on Rogers , 122 M.S.P.R. 671 , ¶ 7, was misplaced . ¶10 Moreover, the Board lacks authority to review the merits of an agency’s decision to suspend an appellant’s access to classified information . Rogers , 122 M.S.P.R. 671 , ¶ 5; see Jones v. Department of the Navy , 48 M.S.P.R. 680 , 690 (finding that the Board lacks authority to review the merits of an agency’s suspension of an appellant’s security access in an indefinite suspension appeal) , aff’d as modified on reco ns., 51 M.S.P.R. 607 (1991), aff’d , 978 F.2d 1223 (Fed. Cir. 1992) . Further, it is well settled that “employees do ‘not have a liberty or property interest in access to classified information, and the termination of that access therefore [does] not implicate any due process concerns. ’” Gargiulo v. Department of Homeland Security , 727 F.3d 1181 , 1184 -85 (Fed. Cir. 2013) (quoting Jones v. Department of the Navy , 978 F.2d 1223 , 1225 (Fed. Cir. 1992) ). ¶11 Therefore, we vacate the following findings regarding the agency’s suspension of the appellant’s access to classified materials : the Board has jurisdiction to review whether the agency committed a harmful procedural error ; the appellant failed to establish that the agency committed procedural error and therefore failed to bear his burden of proving the affirma tive defense of harmful procedural error; the agency did not commit any due process violation ; the agency provided the appellant with all procedural protections; and the action is affirmed. ID at 2, 4, 6 -7, 10 -11. We clarify that we do not vacate any fin dings as they relate to the appellant’s indefinite suspension from duty without pay . ID at 2, 10-11. Moreover, we do not vacate the administrative judge ’s analysis of the agency’s own regulations to the extent it is relevant to her finding that the appel lant failed to prove that the agency committed harmful procedural error in 7 effecting the indefinite suspension from duty without pay . ID at 5-6, 9 n.6. Finally, we modify the initial decision to find that the Board lacks jurisdiction over the agency’s su spension of the appellant’s access to classified materials , including any claims of harmful procedural error . ¶12 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 and the Board’s lack of jurisdiction over the suspension of the appellant’s access to classified information as an independently appealable action . Except as expressly modified by this Final Order, the initial decisi on remains the final decision of the Board affirming the decision to indefinitely suspend the appellant from duty without pay effective December 12, 2015 . 5 C.F.R. § 1201.113 . 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 fin al decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the righ ts described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file 5 Since the issuance of the initial decision in this matter, the Board may have updated the no tice 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 the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Gui de for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warra nts that any attorney will accept representation in a given case. 9 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later th an 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appoint ed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed throug h the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your dis crimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 10 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washing ton, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12 G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial pet ition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 deci sion. 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 whi stleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services p rovided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	WENTLER_TYLER_L_CH_0752_17_0046_I_1_FINAL_ORDER_2045396.pdf	2023-06-29	null	CH-0752	NP
2,967	https://www.mspb.gov/decisions/nonprecedential/LYONS_JOHN_SF_1221_16_0019_W_1_REMAND_ORDER_2045408.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JOHN LYONS, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER SF-1221 -16-0019 -W-1 DATE: June 29, 2023 THIS ORDER IS NONPRECEDENTIAL1 James A. D ’Ambrosio , Esquire, San Diego, California, for the appellant. I.C. LeMoyne , San Diego, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in this individual right of action (IRA) appeal . For the reasons discussed below, we GRANT the appellant ’s petition for review , VACATE the initial decision, and REMAND the case to the Western Regional Office for further adjudication in accordance with this Remand Order. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 BACKGROUND ¶2 The appellant was employed as an Indoor Shooting Range (ISR) Manager within the agency ’s Special Warfare Group ONE (WARCOM). Initial Appeal File (IAF), Tab 8 at 74, 78, Tab 27 at 4. In January 2009, the appellant enrolled himself and a n ISR contract employee in the agency ’s semi -annual blood lead monitor ing and hearing conservation program . IAF, Tab 7 at 71, Tab 39, Hearing Transcript , Day 1 (HT1) at 16 -17 (testimony of the appellant). The agency removed them from the program in February 2010, finding that the testing was unnecessary and, in the case of the contract employee, also improper. HT1 at 18 (testimony of the appellant); IAF, Tab 7 at 57-59. ¶3 In May 2014, the appellant applied for a promotion to Supervisory Range Manager. IAF, Tab 4 at 16, 98. An agency Human Resources Specialist notified him on May 23, 2014, that he was not selected for the position. IAF, Tab 7 at 39. Shortly thereafter, on May 30, 2014, he met with his first -line supervisor, the Range Director, to discuss the nonselection. Id. at 55-56, 60 -61. He then participated in a meeting with the Operations Officer, the Range Officer, the Deputy Operations Officer, who was his second -line supervisor, and his first -line supervisor, on June 5, 2014, and further expressed his concerns. IAF, Tab 4 at 70, Tab 8 at 7. On June 17, 2014, the appellant ’s first -line supervisor issued him a letter of caution to clarify his expec tations of conduct after the May 30 and June 5, 2014 meetings. IAF, Tab 8 at 40 -41, Tab 27 at 4. ¶4 On June 27, 2014, the appellant filed an Office of the Chief of Naval Operations (OPNAV) Navy Employee Report of Unsafe or Unhealthy Working Condition (OPNA V 5100/11) Form. IAF, Tab 7 at 19. He indicated on the Form that there had been lead and noise exposure in the ISR as well as deficiencies in training and occupational health surveillance programs. Id. He also indicated that his supervisor was made awa re that the Industrial Hygienist who was responsible for testing the ISR and making recommendations had falsified a 2011 report and made false statements to staff in June 2013. IAF, Tab 7 at 19, Tab 32 3 at 57 -68. He observed that the agency had ended his regular lead and auditory testing. IAF, Tab 7 at 19. He also indicated that contractor employees received semi -annual lead exposure and hearing testing through their parent company. Id. ¶5 The agency ’s Occupational Health Program Manager issued an interim response on July 15, 2014, in which he concluded that the appellant ’s claims were not validated. Id. at 71-78. However, he stated that, because the appellant was concerned about lead levels, he had been scheduled for a blood test to set a baseline for th e lead levels in his blood. Id. Later that month , the agency tested the appellant ’s blood for lead exposure. The test revealed high levels of lead exposure. IAF, Tab 27 at 5. However, it did not reveal long -term exposure to lead. IAF, Tab 40, Hearing Transcript, Day 2 at 64 (testimony of the appellant ’s second -line supervisor), 192-93 (testimony of the agency ’s Industrial Hygienist) . On July 18, 2014, the Occupational Health Program Manager issued his final response to the appellant ’s OPNAV 5100/11 F orm. IAF, Tab 7 at 63-64. He recommended that the Safety Manager modify any requirements for medical surveillance as necessary based upon blood lead air monitoring results. Id. He further indicated that, because the appellant showed elevated blood lead levels, the agency would require his inclusion in a semi -annual blood lead monitoring and medical surveillance program. Id. The appellant forwarded his OPNAV 5100/11 Form to the WARCOM Safety Director and others on July 25, 2014, stating that the agency had failed to timely respond to the Form as required by agency policy. Id. at 43-44, 66 -68. He also further disagreed with the agency ’s assessment of the issues he raised in his first submission of the Form, and expounded on his disclosures in the Form. Id. at 66-67. ¶6 On August 8, 2014, the appellant filed a formal grievance. Id. at 23 -26. He asserted that his first - and second -line supervisors retaliated against him for filing the OPNAV 5100/11 Form, includin g by issuing him the letter of caution, his supervisors did not address a complaint against the Industrial Hygienist for violating his Privacy Act and Health Insurance Portability and Accountability Act 4 of 1996 rights, and management did not address his co mplaints about his worksite. Id. at 23 -26. He also questioned whether the agency was properly recording his additional work hours as “comp. time.” Id. at 25. On September 19, 2014, the agency issued a response to the grievance.2 IAF, Tab 6 at 75 -76. It stated, among other things, that it would refer his complaint regarding the failure to safeguard information protected by the Privacy Act to the Privacy Act Coordinator, and that his unit would be provided with further training regarding time and attend ance regulations. Id. at 76. ¶7 The appellant ’s second -line supervisor issued the appellant a notice of proposed removal on October 28, 2014, on the basis of four specifications of conduct unbecoming a Federal employee. IAF, Tab 4 at 15 -19. The conduct at issue included the appellant ’s alleged attempts to disrupt the ISR ’s laser range operations; “pattern . . . of making unsubstantiated claims and allegations”; and “hostile, intimidating, and disrespectful conduct towards co -workers and others.” Id. at 15-17. After considering the appellant ’s written and oral responses, the agency ’s deciding official imposed the removal on November 25, 2014, effective November 28, 2014. IAF, Tab 4 at 22-26, Tab 27 at 5. ¶8 Before the agency had proposed his removal, the ap pellant filed a complaint with the Office of Special Counsel (OSC) on October 5, 2014. IAF, Tab 4 at 43-128. He amended his OSC complaint to include the proposed and imposed removal and OSC considered these personnel actions. Id. at 131 -34. The appella nt asserted that he made protected disclosures on May 30, 2014, to his first-line supervisor ; on June 27, 2014, in the OPNAV 5100/11 Form as to unsafe or unhealthy working conditions ; and on July 25, 2014, by emailing a copy of the 2 The agency did not consider the letter of caution, as this was not a grievable action. IAF, Tab 6 at 75. It also did not consider matters addressed in the OPNAV 5100/11 Form because a matter cons idered under an alternative formal review procedure could not be grieved. Id. Although the appellant had requested his own reassignment and discipline against his managers, the agency denied this request. IAF, Tab 6 at 76, Tab 7 at 26. 5 OPNAV 5100/11 Form to ot her agency officials. Id. at 100 -01, 126 -28, 132 -34. As to his meeting with his supervisor on May 30, 2014, he alleged that he disclosed concerns as to the agency ’s manipulation of position descriptions, failure to properly compensate employees for work or permit them to use leave, poor safety training and culture , and high ISR lead levels. HT1 at 35-39, 42 (testimony of the appellant) ; IAF, Tab 4 at 9-25, 73, 132. As to the OPNAV 5100/11 Form, the appellant described filing the Form, forwarding it, and filing a grievance alleging retaliation for filing it. IAF, Tab 4 at 74. Further, he described that he made another disclosure when he forwarded the OPNAV 5100/11 Form to the WARCOM Safety Director on July 25, 2014, and asserted that the agency had not properly addressed it because, among other things, it had not timely responded to the Form. Id. He argued that the agency engaged in a pattern of retaliation against him, issued him the letter of caution, did not select him for the Supervisory Range position, denied his workers ’ compensation claim, proposed his removal, and removed him.3 Id. at 69-72, 132 -33. On August 3, 2015, OSC issued a letter stating that, after considering the appellant ’s additional responses, it had closed out his complaint. Id. at 131. OSC then provided the appellant with notice of his Board appeal rights. Id. ¶9 The appellant filed the instant IRA appeal. IAF, Tab 1. The administrative judge found that the appellant exhausted his OSC remedy and the Board has jurisdiction. IAF , Tab 35 at 2, Tab 51, Initial Decision (ID) at 1, 18 -19. However, after holding a hearing, the administrative judge issued an initial decision that denied the appellant’s request for corrective action on the merits. 3 The appellant a lso asserted that he made the following protected disclosures: (1) in June 2014, in an email to his first -line supervisor, he stated that performance appraisals were posted on a shared drive, in violation of the Privacy Act; (2) in 2014 email chains he st ated that, although the laser program was not in compliance with agency regulations, the site continued to use the lasers; and (3) beginning as early as 2010, he informed his first -line supervisor that Government contractors were improperly performing gove rnmental functions, given improper access, and not subject to appropriate safety testing. IAF, Tab 4 at 15, 24 -25, 41, 51 -52, 132. 6 ID at 1, 31. As to the May 30, 2014 meeting with his first -line supervisor, the administrative judge found that the appellant failed to prove that he made the disclosures alleged. ID at 19 -21. As to the June 27, 2014 OPNAV 5100/11 Form, and the forwarding of that F orm on July 25, 2014, she found that the appellant made protected disclosures of health and safety concerns and the agency ’s alleged violation of Occupational Safety and Health Administration (OSHA) regulations.4 ID at 22. Because the appellant sought to remedy whistleblower rep risal in his August 8, 2014 grievance, the administrative judge concluded the filing of the grievance was a protected activity. ID at 23. ¶10 The administrative judge also determined that the appellant failed to prove that his protected disclosures and activi ty were contributing factor s in the agency ’s decision not to select him for a position in May 201 4, because his nonselection pre dated his disclosures. ID at 23 -24. However, she concluded that he met his burden as to the agency ’s dec ision to propose and impose his removal . Id. She concluded th at the agency proved by clear and convincing evidence that it would have removed the appellant absent these disclosures and activity. ID at 24-31. ¶11 The appellant has filed a petition for review. Petition for Revi ew (PFR) File, Tab 1. The agency has responded to the petition , and the appellant has replied. PFR File, Tabs 3 -4. DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge properly determined that the Board has jurisdiction over this appeal. ¶12 To establish jurisdiction over this IRA appeal, the appellant must first establish by preponderant evidence that he exhausted his administrative remedy 4 Although the administrative judge stated that she was finding that the appellant engaged in protected activity under 5 U.S.C. § 2302 (b)(9)(A), as is further discussed below, her actual finding appears to be that the appellant made protected disclosures under 5 U.S.C. § 2302 (b)(8)(A). 7 before OSC and make nonfrivolous allegations of the following: (1) he made a protected disclosure under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or activity was a contributing factor in the agency ’s decision to take or fail to take , or threaten to take or fail to take, a personnel action. 5 U.S.C. §§ 1214 (a)(3), 1221(e)(1); Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016). The administrative judge found that the Board has jurisdiction over the appeal. ID at 1. Neither party challenges this finding on review. ¶13 The appellant provided evidence, and the administrative judge expressly found, that he exhausted his OSC remedy. ID at 18 -19. We agree. IAF, Tab 4 at 123-28, 132 -34. The administrative judge did not explain her findings that the appellant met his burden to nonfrivolously allege that he made protected disclosures or engaged in protected activities, or that such disclosures or activities were contributing factors in an agency personnel action. ID at 1; IAF, Tab 13, Tab 35 at 2 . Nonetheless, we sustain her jurisdictional finding. T he standard for establishing jurisdiction and the right to a he aring in an IRA appeal is a non frivolous allegation that at least one protected disclosure or activity was a contributing factor in the agency taking or failing to take at least one personnel action. Fitzgerald v. Department of Agriculture , 97 M.S.P.R. 181 , ¶¶ 9-10 (2004); see Bradley v. Department of Homeland Security , 123 M.S.P.R. 547 , ¶ 6 (2016) (explaining that any d oubt or ambiguity as to whether the appellant made nonfrivolous jurisdictional allegations should be resolved in favor of finding jurisdiction ). The appellant met that burden. IAF, Tab 4 at 141, Tab 34 at 5 -6. ¶14 Once an appel lant establishes jurisdiction over his IRA appeal, he is entitled to a hearing on the merits of his claim, which he must prove by preponderant evidence. Salerno , 123 M.S.P.R. 230, ¶ 5. If the appellant proves that his protected disclosure or activity was a contributing factor in a personnel action taken against him, the agency is given an opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the 8 absence of the protected disclosure or activity . 5 U.S.C. § 1221 (e)(1) -(2); Salerno , 123 M.S.P.R. 230, ¶ 5. The administrative judge properly found that the appellant failed to prove by preponderant evidence that he made protected disclosures on May 30, 2014. ¶15 After extensively examining the testimonial and recor d evidence, the administrative judge found that the appellant failed to prove that he actually made the statements that he claimed during the May 30, 2014 meeting.5 ID at 19 -21. The parties do not challenge this finding on review, and we discern no basis to disturb it. See Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (explaining that t he Board must defer to an administra tive 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). 5 The administrative judge’s order and summary of prehearing conference refers to a May 27, 2014 meeting. IAF, Tab 35 at 2. However, we assume it is referring to the May 30, 2014 meeting. Further, the initial decision also found that the appellant made no protected disclosure during a second meeting with m anagers on June 5, 2014. ID at 19-21. However, disclosures allegedly made during the June 5, 2014 meeting were not identified in the prehearing conference summary. IAF, Tab 35 at 2. The summary clearly identified the disclosures at issue, explained that the issues for decision were limited to those identified in the summary, and provided the parties with an opportunity to object. Id. at 2, 5, 9. Neither party objected. Although the appellant identified the June 5, 2014 meeting in his OSC complaint, he did not claim he made any disclosures therein, but rather stated that he “did not get a chance to talk without being interrupted.” IAF, Tab 4 at 127. The parties do not raise the June 5, 2014 meeting as an issue on review. Therefore, we find it unnecessary to revisit the administrative judge ’s finding that the appellant did not make protected disclosures at that meeting. ID at 19 -21; see Crowe v. Small Business Adminis tration , 53 M.S.P.R. 631 , 635 (1992) (declining to consider arguments raised on review concerning an issue that was not reflected in a preh earing conference summary to which an appellant had an opportunity to, but did not, object). Similarly, o n review, the appellant appears to assert retaliation for filing an OSC complaint. PFR File, Tab 1 at 9-10. The order and summary of prehearing conf erence does not identify this protected activity . IAF, Tab 35 at 2. Further, the administrative judge did not address this argument in the initial decision. ID at 19 -23. Thus, this claim is not properly before us. 9 The administrative judge failed to make specific findings as to appellant ’s remaining alleged protected disclosures and activity . ¶16 The administrative judge found that the appellant made a number of potentially protected disclosures on his June 27, 2014 OPNA V 5100/11 Form. ID at 22. She identified these disclosures as alleged deficiencies in the agency ’s training and occupational health surveillance programs, falsification of a 2011 report by an industrial hygienist, and false statements by an in dustrial hygienist at a June 2013 meeting with ISR staff , and that the appellant “is affected in the ISR,” and “other locations are affected.” Id. She characterized his July 25, 2014 email forwarding the Form as expressing dissatisfaction with the agency ’s handling of the Form . Id. She then stated, as to both the Form and the subsequent email , that “while it is evident that certain of the allegations, standing alone, would not qualify as protected disclosures,” the appellant generally alleged matters related to he alth and safety and the agency ’s compliance with OSHA rules, regulations, and standards concerning lead exposure , which she identified as protected . Id. While the parties do not dispute these findings, w e find that we must vacate the m. ¶17 Although the adm inistrative judge stated that she found the appellant engaged in protected activity under 5 U.S.C. § 2302 (b)(9)(A) when he filed and forwarded his OPNAV 5100/11 Form, it appears that she intended to state that he made protected disclosures under section 2302(b)(8)(A) . ID at 22. An employee engages in protected activity over which the Board has jurisdiction in an IRA appeal when he exercises “any appeal, complaint, or grievance right granted by any law, rule, or regulation —with regard to remedying a violation of [§ 2302(b)(8)].” 5 U.S.C. § 2302 (b)(9)(A)(i); see 5 U.S.C. § § 1214 (a)(3), 1221 (a), (e)(1) ; Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶ 7 (2013). However, the Board does not have jurisdiction over an IRA appeal regarding a claim of retaliation for filing an appeal, complaint, or grievance that does not seek to remedy a violation of section 2302(b)(8) ; in other words, a claim 10 that does not seek to remedy reprisal for whistleblowing . 5 U.S.C. §§ 1214 (a)(3), 1221(a), (e)(1), 2302(b)(9)(A)(i i); Mudd , 120 M.S.P.R. 365 , ¶ 7; see Mattison v. Department of Veterans Affairs , 123 M.S.P.R. 492, ¶¶ 7-8 (2016) (explaining that a claim of reprisal for filing internal agency appeals that did not seek to remedy whistleblowing reprisal arose under 5 U.S.C. § 2302 (b)(9)(A)(ii)) . Here, the appellant did not allege retaliation for protected disclosures. IAF, Tab 7 at 19, 43-44, 66 -67. Thus, the appellant ’s OPNAV 5100/11 Form itself did not constitute protected activity. Despite her charac terization of the OPNAV 5100/11 Form and the email forwarding the Form as constituting a protected activity, it is apparent that the administrative judge properly considered whether the Form contained protected disclosures. ID at 22. ¶18 In analyzing the potential disclosures, the administrative judge appears to have identifi ed only the statements the appellant made on the OPNA V 5100/11 Form itself , as well as a generalized statement of dissatisfaction with the agency ’s response when he forwarded the Form . IAF, Tab 7 at 19. In particular , in forwarding the Form, the appellan t alleged that the agency ’s response to his OPNAV 5100/11 was untimely under agency policy . Id. at 66. The administrative judge did not identify the specifics of the appellant ’s disclosures as the agency apparently understood them or as the appellant later clarified and expanded them when he forwarded the Form. ID at 22. Some of the specifics include allegations that the agency engaged in improper timekeeping practices and in re moving the appellant f rom regular lead testing in 2010 , and the ending of regular lead testing resulted in the appellant ’s elevated lead levels when tested in 2014 . IAF, Tab 7 at 66 -67, 77 -80. As other examples of his disclosures, the appellant also alle ged that the agency manipulated position descriptions, manpower, and the hiring process , and his second -level supervisor refused to implement OSHA and military instructions. Id. at 66-67. ¶19 An initial decision must identify all material issues of fact and l aw, summarize the evidence, resolve issues of credibility, and include the 11 administrative judge ’s conclusions of law and her legal reasoning, as well as the authorities on which that reasoning rests. Mastrullo v. Department of Labor , 123 M.S.P.R. 110 , ¶ 14 (2015). Here, the administrative judge ’s findings are incomplete because she did not identify and analyze each of the alleg ed disclosures at issue. Id. Further, her findings are unclear because, although she generally found Board jurisdiction, she did not state whether she was finding the appellant ’s specific disclosures protected on the merits or at the jurisdictional stage . Id. Therefore, we remand the appeal for these findings for a more complete analysis . Id., ¶¶ 14, 27 (explaining that the administrative judge who held a hearing is in t he best position to make factual findings and detailed credibility assessments on disputed factual issues ). ¶20 In considering the appellant ’s disclosures on remand, the administrative judge should determine whether the appellant reasonably believed that his disclosures evidenced any violation of any law, rule, or regulation, gross mismanag ement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety . 5 U.S.C. § § 1221 (e)(1), 2302(b)(8) (A); Bradl ey, 123 M.S.P.R. 547, ¶ 7. The test for the reasonableness of the appellant ’s belief is whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the disclosure evidenced one of the aforementioned circumstances. Bradley , 123 M.S.P.R. 547, ¶ 7. Although the administrative judge identified this test, she did not make finding s as to whether the appellant believed his disclosures evidence d wrongdoing or the reasonableness of such belief. ID at 3, 22. ¶21 Because the administrative judge did not make findings as to whether the appellant proved that he reasonably believed his disclosures on the OPNAV 5100/11 were protected, she also must revisit her finding that the appellant ’s grievance alleging retali ation for the OPNAV 5100/11 was protected activity. ID at 23 ; IAF, Tab 7 at 23 . As mentioned above, to constitute protected activity 12 within the scope of the Board ’s IRA jurisdiction, the grievance must seek to remedy whistleblower reprisal. This include s the requirement that an appellant prove that he reasonably believed his disclosures were protected.6 See Bradley , 123 M.S.P.R. 547, ¶ 7. Without this finding, we cannot rule on the administrative judge ’s determination that the appellant ’s grievance was protected activity.7 We must vacate the administrative judge ’s clear and convincing analysis. ¶22 If an appellant proves that h is protected disclosure or activity was a contributing factor in a personnel action that was taken or threatened , the agency is given an opportunity to prove, by clear and convincing evidence, that it would have taken or threatened the same personnel actio n in the absence of the protected disclosure or activity . 5 U.S.C. § 1221 (e)(1) -(2); Carr v. Social Security Administration , 185 F.3d 1318 , 1322 -23 (Fed. Cir. 1999) ; see Salerno , 123 M.S.P.R. 230 , ¶ 5. However, the Board may not proceed to the clear and convincing evidence test unless it has first made a finding that the appellant established his prima facie case. Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d per curiam , 623 F. App ’x 1016 (Fed. Cir. 2015).8 Therefore, we must vacate the administrative judge ’s finding that the 6 After the issuance of the initial d ecision, Congress passed section 1097(c)(1) of the National Defense Authorization Act (NDAA) , Pub. L. No. 115 -91, 131 Stat. 1283 , 1618 (2017), which amended 5 U.S.C. § 2302 (b)(9)(C) to provide protections for individuals who cooperate or disclose information to “any other component responsible for internal investigation or review.” However, as we found in Edwards v. Department of Labor , 2022 MSPB 9 , ¶¶ 30-33, this statute does not apply to cases arising before the enactment of the NDAA. Accordingly, we do not consider whether the appellant ’s safety complaints or grievance constitute protected activity under section 2302(b)(9)(C) . 7 The administrative judge ’s well -reasoned finding that the appellant proved contributing factor as to his removal, but not his nonselection, is not challenged by the parties on review . ID at 23-24. However, because we are vacating the administrative judge ’s finding that the appellant made protected disclosures, we decline to review her finding as to whether the disclosures contributed to the agency ’s actions. 8 Although the U.S. Cour t of Appeals for the Seventh Circuit has questioned the Board ’s reasoning in its Clarke decision on other grounds, it did not have occasion to 13 agency met its burden to prov e it would have removed the appellant absent his protected disclosures and activity. We do not reach the appellant ’s arguments that the administrative judge ’s analysis was in error. PFR File, Tab 1 at 7 -8, 10-13, 15, 18 -21. ¶23 If the administrative judge again reaches this issue on remand, she should consider not only the motives of the agency ’s decision makers, such as the deciding official, but also any motive on the part of other agency officials who influenced the decision . Herman v. Department of Jus tice, 119 M.S.P.R. 642 , ¶ 16 (2013). In addition, if she determines that the appellant ’s August 2014 grievance was protected activity, she should factor this activity into her analysis of whether the agency met its burden. The administrative judge did not consider this evidence in conducting her analysis of whether the agency met its burden. ID at 28 -30. Finally, she should consider whether the absence of any comparators is evidence of retaliatory motive.9 See Whitmore v. Department of Labor , 680 F.3d 1353 , 1374 (F ed. Cir. 2012) (observing that an agency ’s failure to come forward with evidence as to comparators may be to its detriment). ORDER ¶24 For the reasons discussed above, we remand this case to the Western Regional Office for further adjudication in accordance wi th this Remand Order. In her remand initial decision, the administrative judge may adopt , as appropriate, her prior findings that the Board has jurisdict ion over the appeal and that the appellant failed to prove that he made a ny protected disclosures on May 30, 2014. If she finds the appellant proved he made protected disclosures or that his address this particular finding in Clarke . See Delgado v. Merit Systems Protection Board , 880 F.3d 913 , 924 -25 (7th Cir. 2018) ( questioning Clarke ’s findings as to whether an employee proved OSC exhaustion). 9 We have reviewed the relevant legislation enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. 14 grievance was a protected activity, she also may readopt the relevant findings that the appellant met his burden to prove contributing factor. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	LYONS_JOHN_SF_1221_16_0019_W_1_REMAND_ORDER_2045408.pdf	2023-06-29	null	SF-1221	NP
2,968	https://www.mspb.gov/decisions/nonprecedential/WASKEVICH_CHARLES_F_PH_3330_17_0236_I_1_FINAL_ORDER_2045419.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHARLES F. WASKEVICH , JR., Appellant, v. DEPARTMENT OF THE TR EASURY, Agency. DOCKET NUMBER PH-3330 -17-0236 -I-1 DATE: June 29, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charles F. Waskevich, Jr. , Millburn, New Jersey, pro se. Ariya McGrew , Esquire, New York, New York, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction his appeal seeking corrective action under the Veterans Employment Opportunities Act of 1998 (VEOA) . We DENY the petition for review and , for the reasons discussed below, we VACATE the initial decision and DISMISS the appeal as untimely filed . 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 BACKGROUND ¶2 On December 24, 2016, the appellant filed a VEOA complaint with the Department of Labor (DOL). Initial Appeal File (IAF), Tab 1 at 4, 10-12. In a letter dated February 24, 2017, a DOL investiga tor informed the appel lant that DOL would take no further action to investigate or attempt to resolve his VEOA complaint and that his case was being closed as of that date . Id. at 13. On April 4, 2017, the appellant filed this Board appeal seeking corrective action under VEOA , and he requested a hearing. Id. at 1-6. ¶3 The administrative judge apprised the appellant of the elements and burdens of proving jurisdiction, exhaustion, and timeliness regarding a VEOA appea l, and he ordered the parties to respond on those issues. IAF, Tab 8. Regarding the timeliness of the Board appeal, the administrative judge informed the appellant that a VEOA appeal must be filed with the Board no later than 15 calendar days after the date on which he received written notice from the Secretary of L abor that DOL had not resolved his complaint. Id. at 5. The administrative judge further explained that VEOA filing deadlines may not be waived for good cause, but they are subject to equitable tolling. Id. at 6. He ordered the appellant to file a statement with supporting documentation on the timeliness issue, including whether the filing deadline s should be equitably tolled. Id. at 7. The parties responded. IAF, Tabs 9 -10, 12, 14 -15. ¶4 Without holding the requeste d hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 18, Initial Decision (ID) at 1, 7. The administrative judge acknowledged the agency’s argument that the appeal is untimely, but he did not make a timeliness finding. ID at 2 n.2. ¶5 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has failed a response, PFR File, Tab 3, to which the appellant has replied, PFR File, Tab 4. 3 DISCUSSION OF ARGU MENTS ON REVIEW ¶6 For the following reasons, we vacate the initial decision dismissing the appeal for lack of jurisdiction and we dismiss the appeal as untimely filed. See Rosell v. Department of Defense , 100 M.S.P.R. 594 , ¶ 5 (2005) (explaining that the Board generally may dismiss an appeal on timeliness grounds when the record is sufficiently developed on that issue and when Board j urisdiction remains unresolved) , aff’d , 191 F. App’x 954 (Fed. Cir. 2006) . An appellant has the burden of proving by preponderant evidence the timeliness of his Board appeal. 5 C.F.R. § 1201.57 (c)(2) . Pursuant to 5 U.S.C. § 3330a (d)(1)(B), a complainant must file a VEOA appeal with the Board within 15 days after he receives written notification from DOL that his VEOA complaint has not been resolved. See Gingery v. Department of the Treasury , 110 M.S.P.R. 83, ¶ 23 (2008). Failure to meet th is 15-day sta tutory filing deadline will result in the dismissal of the VEOA appeal on timeliness grounds unless the appellant can establish a basis for equitabl e tolling. Id., ¶¶ 24-25 (remanding the VEOA appeal for the administrative judge to provide the parties an opportunity to address whether the 15-day filing deadline should be equitably tolled) ; see also Williamson v. U.S. Postal Service , 106 M.S.P.R. 502 , ¶ 6 (2007) (explaining that the 15 -day filing deadline cannot be waived and that the Board must dismiss an appeal filed beyond that deadline, but also that the deadline is subject to equitable tolling) . The U.S. Supreme Court explained in Irwin v. Department of Veterans Affairs , 498 U.S. 89 , 96 (1990), that Federal courts have “typically extended equitable relief only sparingly ” and that the Court had allowed e quitable tolling when the complainant “ has actively pursued his judicial remedies by filing a defect ive plead ing during the statutory period ” or when he has been “induced or tricked by his adversary’ s misconduct into allowing the filing deadline to pass. ” See Gingery , 110 M.S.P.R. 83, ¶ 24. ¶7 As an initial matter, we find that the appellant has received clear notice of the precise timeliness issue in this appeal and a full and fair opportunity to 4 litigate it. See Wright v. Department of Transportation , 99 M.S.P.R. 112 , ¶¶ 12-13 (2005) (finding that the appellant was entitled to clear notice of the preci se timeliness issue in the appeal and a full and fair opportunity to litigate it). The administrative judge informed the appellant of the 15 -day deadline for filing a VEOA appeal with the Board, that the deadline is subject to equitable tolling, and of th e circumstances under which the Board may apply equitable tolling. IAF, Tab 8 at 5 -6. Further , the parties’ responses to the j urisdiction al order show that the a ppellant understands that there is a question regarding the timeliness of his Board appeal th at depends on whether he received sufficient written notice from DOL to trigger the start of the 15-day filing period on February 24, 2017, or on March 21, 2017 . IAF, Tabs 9 -10, 12, 14 -15; see Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501 , ¶ 10 (2007) (stating that, before dismissing an appeal as untimely filed, the administrative judge is required to in form the appellant of the date that a document triggering the right to appeal is presumed to have been received) ; see also Melendez v. Department of Homeland Security , 112 M.S.P.R. 51 , ¶ 9 (2009) ( explaining that an administrative judge ’s failure to provide an appellant with proper notice regarding a timeliness issue can be cured by the agency’s pleadings or the initial decision ). ¶8 After reviewing the parties’ evidence and argument on the timeliness issue, we find that the appellant has failed to prove that he timely filed his VEOA appeal within the 15 -day statutory deadline.2 The agency’s evidence shows that the DOL investigator se nt the appellant an email on February 24, 2017, which informed him that his case had been closed on that date, attached copies of the closing letter s addressed to him and to the agency , and asked him for his mailing address to send him the original letters . IAF, Tab 12 at 5. The appellant responded to this evidence by arguing that the closing letters attached to the email were draft, unsigned copies that had not yet been issued . IAF, Tab 14 at 5. He 2 The parties’ submissions on review do not address the dispositive timeliness issue . PFR File, Tabs 1, 3 -4. 5 further argued and provided evidence that he received a signed, issued closing letter on March 21, 2017. Id. at 4-6. However, he does not dispute that he received the February 24, 2017 email and its attachments. Even assuming , without finding, that the appellant’s assertions are true, we find that the Febr uary 24, 2017 email constitute s sufficient written notice to trigger the start of the 15 -day filing period because the email clearly informed him that his case had been closed . See 5 U.S.C. § 3330a (c)(2), (d)(1)(B); see also Shaver v. Department of the Air Force , 106 M.S.P.R. 601 , ¶ 4 n.2 (2007) (stating that the 15-day de adline to file a Board appeal does not begin to run until the complainant receives notice, in writing, that DOL’s efforts to investigate and resolve the complaint did not result in resolution of the complaint). Thus, the appellant untimely filed his Board appeal on April 4, 2017, beyond the 15 -day statutory deadline. See 5 C.F.R. § 1201.14 (m). Moreover, we find that the appellant has not established any of the limited bases for equitabl y tolling the deadline . See Gingery , 110 M.S.P.R. 83, ¶ 24. To the extent the appellant mistakenly believed that the 15 -day filing deadline would not begin to run until he received a signed original closing letter, we find that this does not provide a basis for applying equitable tolling in this matter. Accordingly, we dismiss this appeal as untimely filed. 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 and the appropriate forum with whic h to file. 5 U.S.C. § 7703 (b). Although 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. 6 appropr iate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law appl icable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible cho ices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in gener al. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of part icular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 7 for Merit Systems Prote ction Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Loc ator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 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 revi ew to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhanc ement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your 4 The original statutory provision that provided for judicial review of certain whistleblower claim s by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certai n whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 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 judici al review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono repr esentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	WASKEVICH_CHARLES_F_PH_3330_17_0236_I_1_FINAL_ORDER_2045419.pdf	2023-06-29	null	PH-3330	NP
2,969	https://www.mspb.gov/decisions/nonprecedential/SPELLMAN_SHARON_LEIGH_DC_1221_17_0133_W_1_FINAL_ORDER_2045452.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SHARON LEIGH SPELLMA N, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER DC-1221 -17-0133 -W-1 DATE: June 29, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Thomas F. Hennessy , Esquire, Fairfax, Virginia, for the appellant. Timothy R. Zelek , Quantico, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has file d a petition for review of the initial decision, which dismissed this individual right of action (IRA) appeal for lack of Board jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contain s 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 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 the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of th e appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petiti oner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that 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 appellant’s allegations i n this appeal , supplement the administrative judge’s analysis of whether the appellant nonfrivolously alleged that she made a protected disclosure , and VACATE the portion of the initial decision addressing whether the appellant nonfrivolously alleged that sh e made a protected disclosure that was a contributing factor in the personnel actions at issue, we AFFIRM the initial decision. BACKGROUND ¶2 The appellant is a Financial Management Analyst with the United States Marine Corps Education Command (EDCOM) at the Marine Corps University (MCU) in Quantico, Virginia. Initial Appeal File (IAF), Tab 1 at 6. On February 5, 2016, she filed a whistleblower reprisal complaint with the Office of Special Counsel (OSC), alleging that the agency had taken various actions2 against her in retaliation for disclos ing possible prohibited personnel practices (PPPs) at MCU to an agency investigator on January 14, 2016. Id. at 22-31. On February 9, 2016, the appellant filed a disclosure complaint with OSC , alleging 2 In her complaint, the appellant identified the agency’s alleged retaliatory actions as follows: “Moved positions; duties removed; [Unfair Labor Practice]; deta iled; unable to attend meetings related to my job, unable to walk on certain floors or communicate with certain people.” IAF, Tab 1 at 29. 3 that agency mana gement officials had abused their authority and created a substantial and specific danger to public safety by participating in “personal and professional attacks against her,” including “violating her detail letter” and implementing additional checks on he r work. Id. at 16-21. The appellant transmitted both complaints to OSC’s Disclosure Unit via facsimile on February 16, 2016. Id. at 32-33. On September 16, 2016, OSC advised the appellant that it had terminated its inquiry into the allegations in her whistleblower reprisal complaint that agency officials retaliated against her for disclosing possible PPPs to EDCOM’s Commanding General (CG) ,3 and it apprised her of her Board appeal rights. Id. at 41 -43. ¶3 On November 18, 2016, the appellant filed an IRA appeal with the Board and requested a hearing. Id. at 7, 13. The appellant submitted the following documents with her appeal: (1) the reprisa l and disclosure complaints described above ; (2) a fax cover sheet dated February 16, 2016, addressed to OSC’s Disclosure Unit; ( 3) an undated , unsigned timeline of events; and (4) OSC’s September 16, 2016 letters. Id. at 16 -43. ¶4 The administrative judge i ssued an order informing the parties of the jurisdictional issues and directing the appellant to submit evidence and argument to establish the Board’s jurisdiction over her appeal. IAF, Tab 3. In response, the appellant submitted the same documents that she had submitted with her appeal, with the exception of OSC’s letters. IAF, Tabs 1, 6. ¶5 Without holding the requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 12, Initial Decisi on (ID) at 1, 3, 7. The administrative judge determined that the appellant exhausted her administrative remedies with OSC regarding her allegation that 3 Although the appellant d id not allege that she disclosed possible PPPs to the CG in her OSC whistleblower reprisal complaint , IAF, Tab 1 at 28, she apparently raised this allegation in other submissions to OSC, as evidenced by OSC’s reference to her claim that she made disclosures to the CG in its September 16, 2016 letter advising her that it had terminated its inqui ry into her reprisal allegations . Id. at 41. 4 agency officials retaliated against her for disclosing possible PPPs to the CG. ID at 4. The administrative judge concluded, however, that the appellant failed to nonfrivolously allege that she engaged in whistleblowing activity by making a disclosure protected under 5 U.S.C. § 2302(b)(8).4 ID at 4-6. The administrative judge further found that the appellant failed to nonfrivolously allege that her purported protected activity was a contributing factor in the alleged personnel actions. ID at 6-7. ¶6 The appellant has filed a petitio n for review. Petition for Review (PFR) File, Tab 7. The agency has not filed a response . ANALYSIS ¶7 An appellant bears the burden of proving the Board’s jurisdiction over her appeal by a preponderance of the evidence. 5 C.F.R. § 1201.56 (b)(2) (i)(A). To establish the Board’s jurisdiction over an IRA appeal, an 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)(2)(A). 5 U.S.C. §§ 1214 (a)(3), 1221; Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016); see Yunus v. Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001). 4 As explained below, to establish jurisdiction over an IRA appeal, an appellant is not required to prove that she made protected disclosures . Rather she is required merely to make a nonfrivolous allegation that her disclosures were protected. Grubb v. Department of the Interior , 96 M.S.P.R. 377 , ¶ 11 (2004). Although the adm inistrative judge appears to have applied the proper nonfrivolous standard, the initial decision erroneously states that the appellant failed to “demonstrate” that she made a protected disclosure or that her purported protected activity was a contributing factor in the alleged personnel actions. ID at 5 -7. Also, the administrative judge determined that the appellant failed to nonfrivolously allege that she made a protected disclosure. ID at 5 -6. We thus disregard as a drafting error the administrative j udge’s statement in the heading at the top of page 4 that the appellant made a protected disclosure. 5 The administrative judge correctly found that the appellant exhausted her administrative remedies before OSC regarding her claim of reprisal for disclosing possible PPPs to the CG. ¶8 As for the exhaustion requirement, u nder 5 U.S.C. § 1214 (a)(3), an employee is required to exhaust her administrative remedies with OSC before seeking corrective action from the Board in an IRA appeal. Mason v. Department of Homeland Sec urity , 116 M.S.P.R. 135, ¶ 8 (2011). The Board may only consider those disclosures of information and personnel actions that the appellant raised before OSC. Id.; Campo v. Department of the Army , 93 M.S.P.R. 1 , ¶ 9 (2002) (holding that the Board’s jurisdiction in an IRA appeal is limited to the issues she raised before OSC ). An appellant may demonstrate exhaustion through her initial OSC complaint, evidence that she amended the original complaint, including but not limited to, OSC’s determination letter and other letters from OSC referencing any amended allegations, and the appellant’s written responses to OSC referencing the amended allegations. Mason , 116 M.S.P.R. 135 , ¶ 8. ¶9 The administrative judge correctly found that the appellant exhausted her remedies before OSC as to her allegation that agency officials retaliated against her for disclosing possible PPPs to the CG . ID at 4. As noted above, OSC’s letter notifying the appellant of her Board appeal rights shows that the appellant raised this allegation before OSC. IAF, Tab 1 at 41 ; Sutton v. Department of Justice , 94 M.S.P.R. 4, ¶ 9 (2003) (considering OSC’s termination letters i n determining whether the appellant satisfi ed the exhaustion requirement), aff’d , 97 F. App’x 322 (Fed. Cir. 2004). The appellant did not allege retaliation for making a protected disclosure to OSC and, in any event, she did not exhau st her administrative remedies with OSC regarding such a claim. ¶10 In the initial decision, the administrative judge stated that the appellant was alleging that the agency retaliated against her for making a protected whistleblowing disclosure to OSC. ID at 1 ; see 5 U.S.C. § 2302 (b)(8)(B) (prohibiting an agency from taking or failing to take a personnel action 6 concerning any employee “because of . . . any disclosure to the Special Counsel” of information that the employee reasonably believes evidences, among other things, a violation of any law, rule, or regulation, gross mismanagement, or an abuse of authority). Careful review of the record shows that the appellant has not made such an allegation . ¶11 Moreover, even if this appeal included a claim of reprisal for maki ng a protected disclosure to OSC, the appellant has not shown that she exhausted her OSC remed y regarding such a claim. An appellant filing an IRA appeal has not exhausted her OSC remedy unless she has filed a complaint with OSC and either OSC has notifie d her that it was terminating its investigation of her allegations or 120 calendar days have passed since she first sought corrective action. Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 8 (2010). The record contains no evidence showing that the appellant filed a complaint with OSC alleging that the agency retaliated against her for making a disclosure to OSC. The a ppellant has failed to nonfrivolously allege that she made a protected disclosure. ¶12 Although the administrative judge found that the appellant exhausted her remedies regarding her allegation of retaliation for disclos ing possible PPPs to the CG , he did not analyze whether the appellant nonfrivolously alleged that those disclosures were protected.5 Thus, we do so here. ¶13 A nonfrivolous allegation of a protected disclosure is an allegation of facts that, if proven, would show that the appellant disclosed a matt er that a reasonable person in her position would believe evidenced one of the categories of 5 Instead, the administrative judge considered whether the appellant nonfrivolously alleged that her disclosures to OSC regarding the agency’s alleged abus e of authority and its creati ng a substantial and specific danger to public safety were protected , and he found that the appellant failed to do so. ID at 5 -6; IAF, Tab 1 at 19. The appellant has not specifically contested the administrative judge’s findi ng. See generally PFR File, Tab 7. Therefore, we have not further considered this issue. See 5 C.F.R. § 1201.115 (stating that the Board normally will consider only issues raised in a timely filed petition for review or in a timely filed cross petition for review). 7 wrongdoing specified in 5 U.S.C. § 2302 (b)(8). Salerno , 123 M.S.P.R. 230 , ¶ 6. The test to determine whether a putative whistleblower has a reasonable belief that her disclosure evidenced wrongdoing is an objective one: whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the Government evidenced a violation of law, rule or re gulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. Id. (citing Lachance v. White , 174 F.3d 1378 , 1381 (Fed. Cir. 1999)). The disclosure must be specific and detailed, not vague allegations of wrongdoing. Linder v. Department of Justice , 122 M.S.P.R. 14 , ¶ 14 (2014) . Conclusory, vague, or unsupported allegations are insufficient to qualify as a nonfrivolous allegation of jurisdiction in an IRA appeal . McDonnell v. Department of Agriculture , 108 M.S.P.R. 443 , ¶ 7 (2008). ¶14 The appellant argues on review that the administrative judge erred in finding that she failed to nonfrivolously allege that she made a protected disclosure . PFR File, Tab 7 at 5. She asserts that , in making this finding, the administrative judge disregarded evidence showing that she complained about “[a]gency policy and practice concernin g a promotion.” Id. She contends that her complaint about the agency’s failure to adhere to its own promotion policies was clearly a protected disclosure under 5 U.S.C. § 2302 (b)(8). Id. at 7. ¶15 Based on our review of the record, we conclude that the appellant’s allegation s of wrongdoing are not sufficiently specific or detailed to constitute a nonfrivolous allegation of a protected disclosure. The appellant asserts broadly that she complained about the agency’s alleged illegal hiring practices and failure to adhere to its own promotion policies. Id. at 6-7. The appellant’s conclusory and vague allegations of wrongdoing, without any details, are insufficient to constitute a nonfrivo lous allegation of a protected disclosure under 5 U.S.C. § 2302 (b)(8). El v. Department of Commerce , 123 M.S.P.R. 76 , ¶¶ 7 -8 (2015) (finding that the appellant’s disclosures regarding the agency’s alleged delays in 8 processing his travel reimbursement claims “only vaguely allege wrongdoing” and do not constitute a nonfrivolous al legation of a violation of law, rule, or regulation) , aff’d , 663 F. App’x 921 (Fed. Cir. 2016) . It is unnecessary to determine whether the appellant nonfrivolous ly alleg ed that her disclosures were a contributing factor in the personnel actions at issue . ¶16 The appellant also argues on review that she showed that her protected disclosures were a contributing factor in the personnel action s at issue . PFR File, Tab 7 at 7. Because the appellant has failed to raise a nonfrivolous alleg ation that she made a pro tected disclosure, it is unnecessary to determine whether she raised a nonfrivolous allegation that her disclosures were a contributing factor in the personnel action s. See Yunus , 242 F.3d at 1371 . Accordingly, we vacate the portion of the initial decisi on addressing the contributing factor element of this appeal. ¶17 In sum, we find that the appellant exhausted her administrative remedies with OSC regarding her allegation that agency officials retaliated against her for disclosing possible PPPs to the CG; however, she failed to nonfrivolously allege that those disclosures are protected. Therefore, we find that this IRA appeal must be dismissed for lack of jurisdiction. NOTICE OF APPEAL RIGHTS6 The initial decision, as supplemented by this Final Order, cons titutes 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 Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d 6 Since the issuance of the initial decisi on in this matter, the Board may have updated the notice 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 the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failu re to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have que stions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must f ile a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washin gton, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 10 for Merit Systems Prote ction Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in t his case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 11 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancem ent Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent j urisdiction.7 The court of appeals must receive your 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any cour t of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblow er reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SPELLMAN_SHARON_LEIGH_DC_1221_17_0133_W_1_FINAL_ORDER_2045452.pdf	2023-06-29	null	DC-1221	NP
2,970	https://www.mspb.gov/decisions/nonprecedential/RODRIGUEZ_FRANCISCO_DA_0752_17_0295_I_1_FINAL_ORDER_2045494.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD FRANCISCO RODRIGUEZ, Appellant, v. DEPARTMENT OF AGRICU LTURE, Agency. DOCKET NUMBER DA-0752 -17-0295 -I-1 DATE: June 29, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Erin Martinez , El Paso, Texas, for the appellant. Jose Calvo , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 The agency has filed a petition for review of t he initial decision, which reversed the agency ’s action on procedural 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 requi red procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the agency 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 clarif y the analysis of the appellant’s discrimination and retaliation claims, we AFFI RM the initial decision. BACKGROUND ¶2 The appellant served as a GS -07 Consumer Safety Inspector assigned to the Caviness Beef Packers plant in Hereford, Texas. Initial Appeal File ( IAF), Tab 31 at 6, Tab 21 at 12. On January 12, 2016, the Dallas District Manager of the F ood Safety Inspection Service received a signed statement from a management official at Caviness alleging that the appellant offered to make problems between the agency ’s inspectors and plant management disappear if the management official approved 15 minutes overtime for the inspectors. IAF, Tab 43 at 154 -55, Tab 22 at 16, 18. Because she determined that the appellant had lost credibility at Caviness due to these allegations, the District Manager, who was the appellant ’s fifth -level super visor, temporarily detailed him to the next closest assignment, Cargill Meat Solutions, which i s about 22 miles from Caviness, effective January 17, 2016. IAF, Tab 21 at 12, Tab 22 at 16, 18 . ¶3 The agency investigated the allegations and, based on sworn a ffidavits from Caviness management officials that the appellant had propositioned plant management as described above, it proposed to suspend the appellant for 60 days based on a charge of Unethical Use of Official Authority. IAF, Tab 1 at 10-14. 3 The appe llant provided oral and written replies to the proposal. IAF, Tab 43 at 2, 23-53. In a March 23, 2017 decision, the deciding official sustained the charge and suspended the appellant from April 2 to May 31, 2017. IAF, Tab 1 at 16-20. The agency subsequ ently made the appellant ’s detail to the Cargill facility permanent, citing the suspension as the reason for making the directed assignment. IAF, Tab 21 at 15. ¶4 The appellant filed a Board appeal. IAF, Tab 1. In pertinent part, he argued that the agenc y violated his due process rights when it imposed the 60 -day suspension and permanent reassignment as a unified penalty. IAF, Tab 42 at 3. The administrative judge found that the Board had jurisdiction over both the suspension and the reassignment as a u nified penalty because they arose out of the same circumstances for which the agency found the appellant culpable. IAF, Tab 49, Initial Decision (ID) at 4 -6. He also found that the agency violated the appellant ’s procedural due process rights because the notice proposing his suspension failed to cite a permanent reassignment as a proposed penalty, depriving him of a reasonable opportunity to respond concerning the appropriateness of the penalty. ID at 8. Consequently, the administrative judge reversed t he agency ’s action, canceling the appellant ’s suspension and his directed reassignment. ID at 15. He did n ot order interim relief. ID at 17. ¶5 In its petition for review, the agency contends that the administrative judge erred in finding that a personne l action that enhances an adverse action penalty creates a constitutionally protected property interest that mandates notice of the enhancement in the notice of proposed action. Petition for Review (PFR) File, Tab 1 at 4 , 17. The agency argues that the B oard has never held that a failure to provide advance notice of a reassignment constitutes a denial of due process and that neither the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) nor the Board have ruled that an agency ’s failure to pro vide notice that it was considering reassignment as a penalty enhancement implicates a procedural due process issue. Id. at 7 -8. The agency contends that, b ecause notice is not 4 required before the agency can effect a reassignment that, like here, does no t involve a loss of grade or pay, there was no taking of property prot ected by the due process clause. Id. at 9-11. T he agency also a rgues that the Board ’s jurisdiction to review a unitary penalty does not create any new due process requirements and cont ends the administrative judge therefore erred in extending due process protection to the agency ’s decision to reassign him . Id. at 11-14. Instead, t he agency asserts that any defect in the notice given the appellant concerning the penalty should be gover ned by the harmful error standard. Id. at 15-18. The appellant responded in opposition to the agency ’s petition for review and the agency filed a reply to the appellant ’s response. PFR File, Tabs 3-4. DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge correctly found that the 60 -day suspension and reassignment constitute a unitary penalty . ¶6 As a general rule, the Board does not have appellate jurisdiction over reassignments that do not constitute a reduction in grade or p ay, even when the reassignment reduces the employee ’s status, duties, or responsibilities. Aliota v. Department of Veterans Affairs , 60 M.S.P.R. 491, 495 (1994) (citing Artmann v. Department of the Interior , 926 F.2d 1120 (Fed. Cir. 1991) ). Jurisdiction exists , however, when the reassign ment is part of a unitary penalty that is otherwise within the Board ’s jurisdiction. Id. (citing Brewer v. American Battle Monuments Commission , 779 F.2d 663 (Fed. Cir. 1985) (finding that the Board had jurisdiction over a reassignment imposed in connection with a demotion as part of a unified penalty arising out of the same set of circumstances) ). ¶7 In this matter, the administrative judge found that the appellant ’s 60-day suspension and reassignment comprised a unitary penalty because the agency relied on the same incident of misconduct as the basis for both actions. ID at 6. Neither party challenges this on review . Instead, t he agency concede s on review 5 that it implemente d a unitary penalty and contends that the administrative judge erred in finding that it violated the appellant ’s right to due process by failing to cite the directed reassignment part of the unitary penalty in the notice of pr oposed suspension that it issued to the appellant. PFR File, Tab 1 at 7-8. ¶8 Because the 60 -day suspension and the directed reassignment both arose from the same set of circumstance s for which the agency found the appellant culpable, we agree with the adm inistrative judge that the two actions comprise a unitary penalty over which the Board has jurisdiction . ID at 6 ; see Brewer , 779 F.2d at 66 4-65. Moreover, not only does the Board have jurisdiction to review both actions as a unitary penalty , our reviewing court has indicated that under such circumstances, i.e., when an appealable adverse action is paired with a directed reassignment that would not be appealable in and of itself, the Board should review the entire agency action, including the directed reassignment . Brewer , 779 F.2d at 665 . The administrative judge properly reversed the agency ’s action on procedural grounds . ¶9 Pursuant to the Federal Circuit ’s decisions in Ward v. U.S. Postal Service , 634 F.3d 1274 , 1279 -80 (Fed. Cir. 2011), and Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1376 -77 (Fed. Cir. 1999), a deciding official violates an employee ’s due process rights when he relies upon new and material ex parte information as a basis for his decisions on the merits of a proposed charge or the penalty to be imposed. This is because p rocedural due process guarantees are not met if the employee has notice of only certain charges or portions of the evidence and the deciding official considers new and material information; therefore, it is constitutionally impermissible to allow a deciding official to receive additional undisclosed material information that may undermine the objectivity required to protect the fairness of the process. Stone , 179 F.3d at 1376 . Moreover, o ur reviewing court has held that there is no constitutionally relevant distinction concerning whether such additional 6 undisclosed information relates to the underlying charge or to the penalty. Ward , 634 F.3d at 1280 . Thus, all the aspects of a penalty must be included in the advance notice of an adverse action so that the employee will have a fair opportunity to respond to those fact ors before the deciding official. Ward , 634 F.3d at 1280; Solis v. Department of Justice , 117 M.S.P.R. 458 , ¶¶ 9-10 (2012) ; cf. Pope v. U.S. Postal Service , 114 F.3d 1144 , 1148 (Fed. Cir. 1997) (finding that due process requires that charges be sufficiently detailed to al low the employee to make an informed reply). ¶10 The record reflects that the agency ’s notice of propose d suspension in this matter did not mention the appellant ’s directed reassignment. IAF, Tab 10 at 17-21. In his response to the agency ’s petition for re view, t he appellant reiterates the administrative judge ’s finding that the agency gave him no opportunity to respond concerning the penalty of directed reassignment. PFR File, Tab 3 at 16 ; ID at 9 . We agree with the administrative judge that the agency violated th e appellant ’s due process guarantee to a meaningful opportunity to respond concerning the appropriateness of the penalty . ID at 10 ; Solis , 117 M.S.P.R. 458 , ¶ 10. ¶11 The agency ’s arguments on review —that the appellant had no property interest in the location of his assignment and that a reassignment without the loss of grade or pay is not an adverse action appealable to the Board, but is instead a management prerogative that does not create new due process rights —ignore the fact that the reassignment in this case is part of a unified penalty and do not change the analysis. PFR File Tab 1 at 9 -15. As the above analysis indicates, the agency ’s failure to mention the appellant ’s directed reassignment in the notice of proposed suspension deprived him of his due process right to ma ke a meaningful response to the proposed action . Accordingly, the agency has failed to provide a basis for disturbing the administrative judge ’s finding that the agency violated the appellant ’s constitutional right to minimum due process of law by failing to provide him with an opportunity to respond to the notice of directed 7 reassignment. See Schutte v. Department of the Treasury , 100 M.S.P.R. 645 , ¶ 9 (2005). Thus, his suspension and directed reassignment must be reversed and the agency may initiate a “new constitutionally correct ” proceeding based on the same facts. Solis , 117 M.S.P.R. 458 , ¶ 10 (quoting Ward , 634 F.3d at 1280). The appellant failed to establish his discrimination and retaliation claims . ¶12 Concerning the appellant ’s affirmative defenses, we also agree with the administrative judge that the appellant failed to establish his various claim s of discrimination and retaliation. ID at 12 -15; IAF, Tab 42 at 3 . Although the appellant did not file a cross petition for review challenging the administrative judge ’s findings on this point, we take this opportunity to clarify the analysis of these claims. ¶13 The ad ministrative judge analyzed these claim s under the legal standards set forth in Savage v. Dep artment of the Army , 122 M.S.P.R. 612 , ¶¶ 42, 48 -49, 51 (2015) , overruled in part by Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 23-25. In applying these standards, the administrative judge discussed various types of direct and circumstant ial evidence, and concluded that the record lacked any evidence that the agency was motivated by a discriminatory or retaliatory animus when it suspended and reassigned the appellant. ID at 12-15; see Savage , 122 M.S.P.R. 612 , ¶ 42 (identifying different types of evidence relevant to a discrimination claim). The Board has clarified that Savage does not require administrative judges to separate “direct ” from “indirect ” evidence and reaffirmed its holding in Savage , 122 M.S.P.R. 612, ¶ 51, that the dispositive inquiry is whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in t he contested personnel action. Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶ 30 (2016), clarified by Pridgen , 2022 MSPB 31 , ¶¶ 23-24. ¶14 The administrative judge found that the appellant produced no direct evidence of discrimination or retali ation. ID at 12. He also found that the circumstantial evidence the appellant produced did not indicate that the agency 8 had discriminated or retaliated against him because neither the proposing official nor the deciding official were implicated in the ap pellant ’s allegations and the appellant failed to show that the agency used either of those officials, under a “cat’s paw ” theory, to effect the action for discriminatory or reta liatory purposes, ID at 12 -14. Staub v. Proctor Hospital , 562 U.S. 411 , 422 (2011); see Aquino v. Department of Homeland Security , 121 M.S.P.R. 3 5, ¶¶ 20-21 (2014) (explaining “cat’s paw” to describe an instance when a particular management official, acting because of an improper animus, influences another agency official wh o is unaware of the improper animus when the latter official implements a personnel action) . The administrative judge also found the appellant ’s unsupported and conclusory allegations failed to show that the agency ’s stated reasons for its action were unw orthy of belief. ID at 14 -15. The administrative judge distinguished between direct and circumstantial evidence and there is no indication that he disregarded any evidence in concluding that the appellant failed to meet his burden of proof. ID at 12-15. ¶15 As noted above, t he appellant does not challenge the administrative judge ’s findings on review, and we decline to disturb them. To the extent that the administrative judge discussed the evidence as either direct or indirect, or suggested that an appell ant must prove a convincing mosaic of discrimination, we modify the initial decision to find that the appellant did not present any evidence of status -based discrimination or retaliation .2 ID at 12 -15; see Pridgen , 2022 MSPB 31 , ¶¶ 23-24. 2 Because we affirm the administrativ e 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 was a “but -for” cause of the agency’s decisions. See Pridgen , 2022 MSPB 31, ¶¶ 20-22, 29-33. 9 ORDER ¶16 We ORDER the agency to cancel the suspension and the directed reassignment and retro actively restore the appellant, effective April 2, 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. ¶17 We also ORDER the agency to pay the appellant the c orrect amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, as appropriate, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith i n 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. ¶18 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board ’s Order and of the actions it has taken to carry out the Board ’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶19 No later than 30 days after the agency tells the appellant that it has fully carried out the Board ’s Order, the appellant may file a petition for enforcement with the off ice 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). ¶20 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation 10 necessary to process payments and adjustments resulting from a Board decision are attached. The agen cy 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 APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS 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 m ust 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 RIG HTS3 The initia l 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 b elow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of 3 Since the issuance of the initial decision in this matte r, the Board may have updated the notice 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 this final decision, you should immediately review the law applicable to your claims and carefully follow all fil ing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies t o your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 12 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 13 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower 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. 14 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 Feder al Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 respe ctive websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 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. Missin g 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 d amages) 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 Remed y 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 under taken 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 annuit y 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 leav e ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK 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 decisi on. 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 incl ude 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 document ation 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 t he 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.	RODRIGUEZ_FRANCISCO_DA_0752_17_0295_I_1_FINAL_ORDER_2045494.pdf	2023-06-29	null	DA-0752	NP
2,971	https://www.mspb.gov/decisions/nonprecedential/SINGAM_AKI_DC_0752_16_0868_I_1_FINAL_ORDER_2045504.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD AKI SINGAM, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER DC-0752 -16-0868 -I-1 DATE: June 29, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Aki Singam , Bethesda, Maryland, pro se. Debbie Davis , Fort Belvoir, Virginia, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her removal appeal on res judicata 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 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required proc edures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 Effective March 5, 2013, the appellant was removed from her position as a GS-12 Pharmacist at the Fort Belvo ir Community Hospital (FBCH) , Joint Task Force, National Capital Region Medical ( JTF CAPMED), for failure to follow instructions, inappropriate behavior, and absence without leave. Singam v. Department of Defense , MSPB Docket No. DC-0752 -16-0868 -I-1, Initial Appeal File (IAF), Tab 2 at 43-45. She filed a Board appeal of the removal , which was dismissed as settled pursuant to a March 31, 2014 settlement agreement . Singam 2 The appell ant also filed a submission titled, Emergency Motion for Leave to File, in which she requested to file additional pleadings. PFR File, Tab 6. In this motion, the appellant is seeking leave to submit additional evidence that according to her was not readily available before the record closed and shows that she “was, at all times relevant, an Army employee .” Id. Although the evidence she seeks to submit appears to postdate the close of the record , and therefore m ay be considered new, she has failed to explain how the evidence is material and would warrant an outcome different from that of the initial deci sion, which found that the same allegations she is raising here were barred under the doctrine of res judicata. Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). Accordingly, the appellant’s Emergency Motion for Leave to File is denied. 3 v. Department of Defense , MSPB Docket No. DC-0752 -13-0457 -I-2, Initial Decision ( Apr. 1, 2014 ); Singam v. Department of Defense , MSPB Docket No. DC-0752 -13-0457 -I-2, Refiled Appeal File (RAF) , Tab 37, Initial Decision (Singam I ID).3 ¶3 On September 30, 2014, the appellant filed a petition for enforcement of the settlement agreement . Singam v. Department of Defense , MSPB Docket No. DC-0752 -13-0457 -C-1, Compliance Initial Decision (Jan. 15, 2016 ).4 The administrative judge denied the petition for enforcement and dismissed the agency’s cross petition for enforcement as moot. Id. at 1, 11. The appellant filed a petition for review with the Board , which denied her petition and affirmed the compliance initial decision . Singam v. Department of Defense , MSPB Docket No. DC-0752 -13-0457 -C-1, Final Order (July 15, 2016) (Singam II Final Order ). ¶4 The appellant filed the instant appeal on August 12, 2016. IAF, Tab 2. Therein, she appealed the March 5, 2013 removal action and alleged that the agency committed prohibited personnel practices, including discrimination based on age, national origin, race , and sex; retaliation for past equal employment opportunity (EEO) activit y; and retaliation for whistleblowing and other protected activit y. Id. at 1-42. She named the Army Medical Command, Department of the Army, as the agency that took the contested a ction against her. Id. at 1. The administrative judge docketed the appeal naming the Department of Defense (DOD) as the respondent agency, and she issued a comprehensive show cause order, in which she informed the appellant that he r appeal was not a new one and that the issues she raised could have been litigated in Singam I had th at appeal not been dismissed as settled . IAF, Tab 3, Tab 4 at 2. She a lso explained that prohibited personnel practices a re not an independent source of the Board ’s jurisdiction and that the appellant had already elected her remedy for alleged 3 We will refer to this appeal as Singam I. 4 We will refer to the petition for enforcement as Singam II. 4 whistleblower retaliation when she filed her previous appeal. IAF, Tab 4 at 2-3. She further observed that the appeal appeared to arise from the removal action in Singam I and set forth the standard for dismissal on res judicata grounds. Id. at 3. She then ordered the appellant to produce evidence and argument as to why her appeal should not be dismissed. Id. at 4. ¶5 The appellant responded by filing a motion requesting that Board issuances reflect the Department of the Army as the responding agency , rather than DOD . IAF, Tab 5. The administrative judge denied that motion , explaining that DOD had been the responding agency in the appellant’s prior ap peal and compliance matter and that the agency had never notified the Board that it was not the correct respond ent. IAF, Tab 6. On September 28, 2016, t he appellant moved for the recusal or withdrawal of the administrative judge. IAF, Tab 7. She also requested that her motion be certified to the Board as an interlocutory appeal pursuant to 5 C.F.R. § 1201.42 (c) if the administrative judge denied it . Id. The administrative judge denie d both of these motion s. IAF, Tab 8. The appellant asked the administrative judge to reconsider her rulings. IAF, Tab 9 . The administrative judge denied the request, stating: “This is my final ruling on this matter, and I will not address any further motions concerning the issues raised in the appellant’s September 28, 2016 motions.” IAF, Tab 10. ¶6 The appellant subsequently answered the show cause order , and the agency also filed its responses. IAF, Tab s 12-16. The appellant then moved to disqualify the agency representative, D.D., arguing that she was not author ized to represent the agency. IAF, Tab 17 . The agency responded. IAF, Tab 18 . The administrative judge denied th at motion in the initial decision . IAF, Tab 20, Initial Decision ( ID) at 5-6 n.5. The administrative judge dismissed the appeal on res judicata grounds. ID at 1, 8. Among other things, the administrative judge explained that DOD was the proper responding agency and, had the appellant intended to object to th at determination , she should have done so before settling 5 her earlier appeal . ID at 7 & n.8. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. ANALYSIS The a dministrative judge properly dismissed this appeal on res judicata grounds. ¶7 The appellant argues that the administrative judge erred in dismissing th is appeal on res judicata grounds . Id. at 13 -22. Under the doctrine of res judicata, a valid final judgment on the merits of an action bars a second action involving the same parties o r their privies based on the same cause of action. Carson v. Department of Energy , 398 F.3d 1369 , 1375 (Fed. Cir. 2005). Res judicata applies if (1) the prior decision was re ndered by a forum with competent jurisdiction , (2) the prior decision was a final decision on the merits , and (3) the same cause of action and the same parties or their privies were involved in both cases. Id. For res judicata purposes , the Board is a forum with competent jurisdiction and the appellant’s two removal appeals arise from the same cause of action. ¶8 The Board is a forum with competent jurisdiction over the appellant’s removal . See 5 U.S .C. §§ 7512 , 7513 (d), 7701(a). The same cause of action means the same set of facts that gives an appellant a right to seek relief from the agency. Navarro v. Office of Personnel Management , 105 M.S.P.R. 278 , ¶ 4 , aff’d per curiam , 252 F. App’x 316 (Fed. Cir. 2007) . We find that b oth appeals arose from the appellant’s March 5, 2013 removal from the Pharmacist, GS -0660 - 12 position at the FBCH , and that any additional issues she seeks to raise were known to her at the time of her earlier appeal and could have been litigated then .5 Singam I, RAF, Tab 1 at 1-60. We also find that she waived the se issues under 5 Prohibited personnel practices, including discrimination and retaliation , are also not independent sources of Board jurisdiction. Wren v. Department of the Army , 2 M.S.P.R . 1, 2 (1980 ), aff’d , 681 F.2d 867 (D.C. Cir. 1982). 6 the settlement agreement. Singam I , RAF , Tab 36 at 2; see Ford -Clifton v. Department of Veterans Affairs , 661 F.3d 655 , 661 (Fed. Cir. 2011) (citing Mannion v. Department of the Treasury , 429 F. App’x 986 (Fed. Cir. 2011) , for the proposition that an appellant cannot reinstate or reopen a Board appeal when, in a settlement agreement for that appeal, she has voluntarily waived the right to pursue any and all of her claims in any forum ). For res judicata purposes, the Singam I Initial Decision dismissing the removal appeal as settled is a valid final judgment on the merits. ¶9 The appellant asserts that the administrative judge erroneously dismiss ed this appeal on res judicata grounds because the settlement agreement was not a valid final judgment on the m erits of the removal action. PFR File, Tab 1 at 13-14, 16-19. Courts widely agree, however, that an earlier dismissal based on a settlement agreement constitutes a final judgment on the merits in a res judicata analysis. Ford -Clifton , 661 F.3d at 660-61. The appellant argues that Ford -Clifton is inapposite because the court in that case found that the parties’ settlement agreement was both “ lawful ” and “ a full and complete settlem ent of all issues in the appeal, ” id., whereas h ere, the parties reached the settlement agreement in the appellant’s concurrent EEO complaint and it “is not in the record ” for her Board appeal , PFR File, Tab 1 at 17. The settlement agreement , however, is in the record. Singam I , RAF, Tab 36. The administrative judge reviewed the agreement and entered it into the record for enforcement purposes . Singam I ID at 1-2. ¶10 The appellant asserts that the settlement agreement does not state whether it constitute s a full and complete settlement of her earlier appeal or whether it was intended to settle any other claims against the agency, including any past claims she may have had against the Department of the Army , the Department of the Navy , or JTF CAPMED, a pred ecessor to the Defense Health Agency (DHA) . PFR File, Tab 1 at 14-19. The appellant did not develop th is issue during the proceeding before the administrative judge to the degree she does now . IAF, 7 Tab 12; see Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (holding that the Board will not consider an argument raised for the first time in a petition for review absent a showing th at it is based on new and material evidence not previously available despite the party’s due diligence) . Even if she had done so, we find that the settlement agreement explicitly addresses these matters. T he settlement agreement explicitly states that it : constitutes full and complete settlement and withdrawal with prejudice of the above -captioned Merit Systems Protection Board (MSPB) case and the Equal Employment Opportunity (EEO) Complaint, including Docket Nu mbers (MSPB: DC -0752 -l3- 0457 -l-2; EEO: JFT -CAPMED 12 -0079). In addition, the Appellant waives her right to pursue administrative or judicial action against the Agency and its officials, representatives, agents , and employees , former o fficials , or former employees in any forum . . . based on any fac ts or circumstances that were known or should have been known and that were related to her employment with the Department of Defense up to and including the effective date of this Agreement. Singam I , RAF, Tab 36 at 2. ¶11 The appellant additionally as serts that the settlement agreement here cannot underlie a final judgment on the merits for res judicata purposes because the agreement lacks certain provisions required under the Whistleblower Protection Enhancement Act of 2012 (WPEA ). PFR File, Tab 1 at 19. The WPEA states , in pertinent part : Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority . . . implement or enforce any nondisclosure policy, form, or agreement , if such policy, form, or agreement does not contain the following statement: “These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Ex ecutive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantia l and specific danger 8 to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated i nto this agreement and are controlling. ” 5 U.S.C. § 2302 (b)(13). ¶12 We will not consider th e issue of whether omitting such a statement from the settlement agreement would invalidate that agreement as the basis for a final judgment on the merits. The appellant did not assert this argument during the proceeding before the administrative judge, and she has not argued that it is based on new and material evidence not previously available despite her due diligence . IAF, Tab s 2, 12; see B anks , 4 M.S.P.R. at 271. She also has not shown that the agency has sought to prevent her from making any disclosure or filing any complaint, including the instant appeal. ¶13 The appellant also a sserts that the administr ative judge’s failure to include mixed -case appeal rights in the Singam II compliance initial decision retroactively tainted Singam I , affecting the validit y of the Board’s final decision . PFR File, Tab 1 at 6 -7, 10. There was, however, no such error in Singam I , and the Board corrected the omission in the Final Order for Singam II . Singam I ID at 6-8; Singam II Final Order at 8 n.8. The appellant’s argument is thus unavailing , and we conclude that the initial decision dismissing Singam I as settled is a valid final judgment on the merits6 for purposes of the res judicata analysis. For res judicata purposes, the same parties or their privies were involved in both appeals because DOD is the proper responding agency. ¶14 The appellant asserts that the administ rative judge erred in changing the responding agency that she designated when she filed her appeal , Army Medical 6 The initial decision became the Board’s final decision when neither party filed a petition for review. 5 C.F.R. § 1201.113 . 9 Command, the Department of the Army , to DOD . PFR File, Tab 1 at 11 -12. She alleges that the Department of the Army was her employer before sh e was removed and is thus the proper responding agency, and that the DHA is neither identical to nor in priv ity with that agency for purposes of res judicata analysis . Id. at 14-16. ¶15 In the prior removal appeal, the administrative judge excluded the Department of the Army and Department of the Navy as parties and determined that DOD was the proper responding agency . Singam v. Department of Defense , MSPB Docket No. DC-0752 -13-0457 -I-1, Initial Decision (Dec. 13, 2013) at 2 n.1. The administrative jud ge explained that the appellant’s removal would be the only personnel action adjudicated in the appeal and her affirmative defenses would be adjudicated only as they concerned the removal action. Id. The appellant was represented by counsel at the time . Id. at 1. She did not file a petition fo r review. ¶16 After she filed the current appeal, t he appellant had an opportunity to explain why she believed that the Department of the Army was the proper responding agency . IAF, Tab 12. The agency, however, est ablished that it is the proper responding agency. The agency showed that the appellant was assigned to JTF CAPMED, a D OD sub -agency, at the time she was removed. IAF, Tab 16 at 46. The agency explained that JTF CAPMED later became the National Capitol R egion Medical Directorate (NCR MD), which was established effective October 1, 2013, after the appellant was removed. IAF, Tab 15 at 4 -5. NCR MD along with the FBCH was administratively assigned to the DHA, which is subordinate to D OD. Id.; IAF, Tab 12 at 6; Singam II Final Order at ¶ 5 n.5. The administrative judge thus found that D OD was the proper responding agency.7 ID 7 As noted above, supra ¶ 1 n.2, a fter the record on review closed, the appellant filed a pleading titled Emergency Motion for Leave to File, in which she also aske d the Board’ s permission to file an EEO counselor’s report describing an interview with the agency’s former representative, an officer in the U.S. Army Judge Advocate General’s 10 at 7. We agree and likewise find that the appellant has not shown that the appeal should not be dismissed on res judicata grounds. The appellant’s allegations re garding the qualifications and alleged misconduct of agency representatives are unsubstantiated . ¶17 The appellant asserts that the administrative judge erred in designa ting Major D.C. as an agency representative because he was “at all times assigned to the Army Northern Region Medical C ommand and not to the DHA or FBCH .” PFR File, Tab 1 at 13. She asserts that , during the first appeal, Major D.C. illegitimately “installed himself as an agency representative ” and violated her due process rights. Id. at 20. She asserts he was separated from military service for that reason . Id. The appellant asserts that a nother agency representative, D .D., lost her license to practice law in Maryland after the appellant filed an ethics complaint against her.8 Id. She also allege s that D.D. violated her due process rights . Id. The appellant concludes that the agency representatives ’ conduct tainted the proceedings in Singam I , calling into question the validity of the Board’s final decision. Id. ¶18 The exhibits included with the appellant’s petition for review do not prove her allegations. PFR File, Tab 1 at 53 -56, 58 -60. To the extent that these (JAG) corps. PFR File, Tab 6 at 5-6. As described by the appellant, that report sets forth the JAG officer’s explanation that , while he was assigned to the DHA at FB CH, he served under the direct supervision and authority of the DHA and FB CH, although he was paid and trained by his military branch, and that the appellant’s “position at the time in question as mil itary Army assigned to FB CH would have been the same. ” Id. (emphasis omitted). The appellant claims that this statement establishes that she was an employee of the U.S. Army. Id. at 6. We find that the appellant has failed to demonstrate that the infor mation in this statement was previously unavailable or of sufficient weight to change the outcome. 5 C.F.R. §§ 1201.114 (k), 1201 .115(a)(1), (d). Therefore, we deny the appellant’s moti on. 8 In her reply to the agency’s response to the petition for review , the appellant speculates that D.D. is either no longer employed by the agency or working under a pseudonym, and that other agency attorneys have inserted a clip art version of her signature in the agency ’s pleadings. PFR File, Tab 4. The appellant’s allegations are nothing more than her unsubstantiated opinion . 11 exhibits do not i ntroduce information that would have been available before the record closed had the appellant been diligent in pursuing it, Avansino v. U.S. Postal Service , 3 M.S.P.R. 21 1, 214 (1980) (holding that 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),9 little can be gleaned from them . The exhibits show that Major D.C. was assigned to DHA at one time and retired from active duty on September 30, 2016 , and that the agency had not yet acceded to the appellant’s demand to prove that D.D. was its authorized represent ative . PFR File, Tab 1 at 53-56, 58-60. ¶19 The agency, however, acknowledged its choice of representative, and we find that is sufficient . IAF, Tab 18 . A party may des ignate its representative, revoke such a designation, and change such a designation in a signed submission, submitted as a pleading . 5 C.F.R. § 1201.31 (a). A party may choose any representative a s long as that person is willing and available to serve. 5 C.F.R. § 1201.31 (b). A party’s representative need not be an attorney. Walton v. Tennessee Valley Authority , 48 M.S.P.R. 462, 469 (1991); see Augustine v. Department of Veterans Affairs , 429 F.3d 1334, 1338 -40 (Fed. Cir. 2005) (holding that states cannot regulate attorney practice before the Board) . The other party or parties may challenge the party’s designat ion of a representative , however, on ground s that it involves a conflict of interest or a conflict of position. 5 C.F.R. § 1201.31 (b). The appellant has not at any point posed such a challenge . The administrative judge properly denied any and all challenges based on the allegations the appellant raises on review , and we reject them as well. ID at 5-6 n.5. 9 Some of the exhibits with the petition for review predate the close of the record below. PFR File, Tab 1 at 46, 48 -51, 53, 55-56. 12 Even if the administrative judge erred, the appellant has not shown that she was harmed. ¶20 The appellant argues that the administrative judge, through her paralegal, “engaged in protracted ex -parte communication ” with her regarding matters involving the merits of the case, and that she failed to include the complete correspondence in the record in violation of Board regulations. PFR File, Tab 1 at 10; see 5 C.F.R. §§ 1201.101 –1201 .103. The appellant explains that she filed the appeal on August 12, 2016 , and then e ngag ed in correspondence with the administrative judge’s paralegal beginning on August 17, 2016, wherein the administrative judge sought to refuse her filing of a new appeal. PFR File, Tab 1 at 7, 10-11. The appellant asserts that the administrative judge do cketed the appeal only after she referred the ex parte co rrespondence to the Board’s Inspector General . Id. at 7. ¶21 The appeal was docketed on August 12, 2016. IAF, Tab 2. The record shows that a paralegal in the Washington Regional Office sent the appellant an August 17, 2016 rejection letter expla ining that she had previously filed an appeal based on the same removal action as the instant appeal. The record does not contain the appellant’s response s to that letter . IAF, Tab 1 . The appel lant provided copies of those responses with the petition for review . PFR File, Tab 1 at 33-35, 48 -51. ¶22 Board regulations generally prohibit oral or written communications between an administrative judge and an interested party to a case before h er, when t hose communications concern the merits of a matter before the Board for adjudication, and when they are made without providing the other party or parties to the appeal with an opportunity to participate. Martinez v. U.S. Postal Service , 89 M.S.P.R. 152 , ¶ 24 (2001); 5 C.F.R. §§ 1201.101 –1201 .102 . Here, the corre spondence to which the appellant refers arguably goes to procedural matters and not the merits of the appeal. Nevertheless, e ven if the administrative judge erred by not docketing the appellant’s response s, the appellant has not shown that 13 she was harmed by the omission . The excluded party, the agency , has not asserted that it was harmed . Conversely, the presence of the August 17, 2016 letter in the record alerted the agency that the administrative judge initial ly rejected the pleading . In any event, t he appellant herself effectively cured any defect in the record b y providing the remaini ng correspondence . See 5 C.F.R. § 1201.103 (a). ¶23 The appellant also argues that the administrative judge issued an undated order denying her September 28, 2016 motion and failed to “describe the motion and [her] reasons for granting or denying the motion” in that order. PFR File, Tab 1 at 11. She additionally argues that the administrative judge did not describ e accurately the sequence of motions and orders in the initial decision . Id. The record shows, however, that the order to which the appellant refers bears the date September 29, 2016 . IAF, Tab 8. Although t he order does not describe the appellant’s September 28, 2016 motion in detail or explain the administrative judge’s reasons for denying it , the administrative judge correctly pointed out that the appellant’s appe al rights would allow for the review of he r decision . Id. The initial decision reflects the record. ID at 2 -5. We find no abuse of discretion or evidence of bias in this matter , and a ccordingly, we affirm the initial decision. NOTICE OF APPEAL RIG HTS10 You may obtain review of this final decisio n. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights describ ed below do not represent a 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. 14 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one appli es to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 15 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective webs ites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your rep resentative receives this decision before you do, then you must file 16 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EE OC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 pe tition 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 of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 17 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Cir cuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants b efore the 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. 18 Contact information for the courts of appeals can be found at their respective website s, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SINGAM_AKI_DC_0752_16_0868_I_1_FINAL_ORDER_2045504.pdf	2023-06-29	null	DC-0752	NP
2,972	https://www.mspb.gov/decisions/nonprecedential/REYES_CAROLINA_A_DC_0843_17_0542_I_1_FINAL_ORDER_2045516.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CAROLINA A. REYES, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DC-0843 -17-0542 -I-1 DATE: June 29, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Randle R. Edwards , Washington, D.C., for the appellant. Carl E. Hobbs, II , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction her appeal of an Office of Personnel Management (OPM) final decision denying her application for a Federal Employees’ Retirement System (FERS) basic death benefit. For the reasons set 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 forth below, the appellant’s petition for review is DISMIS SED as untimely filed withou t good cause shown. 5 C.F.R. § 1201.114 (e), (g). BACKGROUND ¶2 On May 25, 2017, the appellant filed a Board appeal of OPM’s final decision denying her applicat ion for a basic employee death benefit under FERS. Initial Appeal File (IAF), Tab 1. On August 1, 2017, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction on the basis that OPM had rescinded the final decis ion under appeal. IAF, Tab 11, Initial Decision (ID). The administrative judge noted that, in moving to dismiss the appeal, OPM asserted its intention to grant the appellant’s applic ation for death benefit. ID at 1-2; IAF, Tab 9. The administrative jud ge notified the appellant of her right to file a petition for review and of the time limits for doing so. ID at 3 -4. ¶3 On November 21, 2017, the appellant filed a petition for review, objecting to the way that OPM had handled her case and requesting that th e Board hold OPM accountable for its promise to grant her application. Petition for Review (PFR) File, Tab 1. The Clerk of the Board issued an order, notifying the appellant that her petition for review appeared to be untimely and directing her to file a motion to accept the appeal as timely or to waive the filing deadline for good cause shown. PFR File, Tab 2. The appellant responded, requesting that the Board accept her petition for review as timely and explaining that the OPM had recently contacted h er to say that OPM no longer intended to grant her application. PFR File, Tab 3. The Clerk of the Board then issued an order to OPM, directing it to file evidence and argument to show that it had completely rescinded its prior decision by restoring the a ppellant to the status quo ante. PFR File, Tab 4. OPM failed to respond to the order. However, on August 22, 2018, the appellant filed a request to withdraw her petition for review based on “the representation of [OPM] that the final reconsideration dec ision has been 3 rescinded in full and that OPM has now granted my application for Basic Employee Death Benefits . . . .” PFR File, Tab 7. OPM consented to the withdrawal. Id. DISCUSSION OF ARGUME NTS ON REVIEW ¶4 Withdrawal of a petition for review is an a ct of finality that has the effect of removing the appeal from the Board’s jurisdiction. Okello v. Office of Personnel Management , 112 M.S.P.R. 563 , ¶ 5 (2009). Hence, a withdrawal must be by clear, unequivocal, and decisive action. Leno v. Department of Veterans Affairs , 90 M.S.P.R. 614 , ¶ 3 (2002). In this case, the appellant’s withdrawal appears to be conditioned on OPM’s granting her application for d eath benefits, and therefore does not meet that standard. PFR File, Tab 7; see Ryan v. Department of the Air Force , 117 M.S.P.R. 36 2, ¶ 9 (2012). Notably, the record does not contain any evidence to support a finding that the conditions of the withdrawal have, in fact, been met. Finding that the parties would not be prejudiced by a disposition of the petition for review on timelines s grounds, we deny the appellant’s request for a withdrawal and proceed to the issue of timeliness. ¶5 A petition for review must be filed within 35 days after the initial decision is issued or, if the appellant shows that she received the initial decision mo re than 5 days after it was issued, within 30 days after the date of receipt. Williams v. Office of Personnel Management , 109 M.S .P.R. 237 , ¶ 7 (2008); 5 C.F.R. § 1201.114 (e). In this case, we find that the petition for review was untimely filed by 42 days. The initial decision was issued on August 1, 2017, and it was served the same day on the appellant by mail and on her representative by email. ID at 1; IAF, Tab 12. There is no indication that either the appellant or her representative failed to receive the initial decision in due course, and so th e filing deadline was September 5, 2017, 35 days from the date of the initial decision. See 5 C.F.R. § 1201.114 (e); see also Williamson v. U.S. Postal Service , 106 M.S.P.R. 502 , ¶ 7 (2007) (explaining that, under Board precedent and 4 regulations, documents placed in the mail are presumed to be received in 5 days). The appe llant filed her petition for re view 42 days later, on November 21, 2017, as indicated by the postmark on the envelope in which she mailed it. PFR File, Tab 1 at 6; see 5 C.F.R. § 1201.4 (l) (providing that the date of filing by mail is determined by the postmark date). ¶6 The Board will waive the filing deadline for a petition for review only upon a showing of good cause for the filing delay. Lawson v. Department of Homeland Security , 102 M.S.P.R. 185 , ¶ 5 (2006); 5 C.F.R. §§ 1201.12 , 1201.114(g). To establish good cause for an untimely filing, a party must show that she exercised due diligence or ordinary prudence under the particular circumstances of her case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). To determine whether an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of her excuse and her showing of due diligenc e, whether she is proceeding pro se, and whether she has presented evidence of the existence of circumstances beyond her control that affected her ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causa l relationship to her inability to timely file her petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). ¶7 In this case, the appellant’s explanation for the delay is that, on November 15, 2017, after the filing deadline had already passed, OPM’s representative left her a voicemail stating that he forwarded her death b enefit application to the office within OPM responsible for adjudicating it, but the office did not agree that there was sufficient basis to grant the application. PFR File, Tab 3 at 3, 5. He stated that the appellant would be receiving a new final decis ion with notice of Board appeal rights. Id. at 5. We find that the appellant is essentially claiming that her untimely filing should be excused because it was based on new and material evidence. See Lybrook v. Department of the Navy , 5 51 M.S.P.R. 241 , 244 (1991) (explaining that the discovery of new and material evidence may provide good cause to waive the deadline for filing a petition for review). We find that th e OPM representative’s November 15, 2017 voicemail constitutes new evidence because it was unavailable prior to the September 5, 2017 filing deadline, and that the appellant acted diligently by filing her petition promptly wit hin a week after receiving it. See Brown v. Department of the Army , 108 M.S.P.R. 90 , ¶ 8 (2008) (finding good cause to waive the filing deadline when the appellant filed his petition within 5 days of receiving new and material evidence). However, we find that the appellant has not established good cause to waive the filing deadline beca use the information contained in the OPM representative’s voicemail is not material to the outcome of the appeal. See Levenson v. Department of Transportation , 38 M.S.P.R. 292 , 295 -96 (1988) (declining to waive the petition for review filing deadline because the new evidence that the appellant submitted was not material to the outcome of the appeal). ¶8 The administrative judge dismissed t his appeal for lack of jurisdiction on the basis that OPM had rescinded its final decision. ID at 1 -2. It is well -settled that OPM’s complete rescission of a final decision divests the Board of jurisdiction over an appeal of that decision. Richardson v. Office of Personnel Management , 101 M.S.P.R. 128 , ¶ 3 (2006). However, a complete rescission requires OPM to return the appell ant to the status quo ante. Campbell v. Office of Personnel Management , 123 M.S.P.R. 240 , ¶ 7 (2016). In this case, the appellan t’s status quo ante, prior to OPM’s final decision, is that she was not in receipt of any death benefits and that she was awaiting a final decision on her application. IAF, Tab 1 at 7 -19. The evidence in this appeal, filed both below and on petition for review, shows that exactly these same conditions existed after OPM rescinded its final decision. IAF, Tab 9 at 5; PFR File, Tab 3 at 5. We therefore find that OPM’s rescission was complete. Although the 6 administrative judge mentioned in her initial deci sion that OPM intended to issue a final decision granting the appellant’s application, ID at 2, this fact was not material to the outcome of the appeal. OPM’s rescission of its final decision would still have divested the Board of jurisdiction regardless of whether OPM had made any such assurances. See, e.g. , Glasgow v. Office of Personnel Management , 103 M.S.P.R. 531 , ¶ 5 (2006) (dismissing the appellant’s disability retirement appeal for lack of jurisdiction on the basis that OPM rescinded its previous decision dismissing the application as untimely and intended to issue a new decision on the merits). In other words, granting t he appellant’s application was not part of returning her to the status quo ante. Because the information contained in the OPM representative’s voicemail was not material to the jurisdictional issue, we find that the discovery of this evidence does not pro vide good cause to waive the deadline for filing the petition for review. See Upshaw v. Department of Defense , 56 M.S.P.R. 94 , 97 (1992) , aff’d , 5 F.3d 1502 (Fed. Cir. 1993) (Table) . ¶9 It appears, although it is by no means certain, that OPM may have since issued a new final decision on the appellant’s application for death benefits, and that the appellant is satisfied with that decision. P FR File, Tab 6. Nevertheless, if the appellant is not satisfied with OPM’s new final decision, she has the right to file a separate Board appeal to contest it. See Rorick v. Office of Personnel Management , 109 M.S.P.R. 597 , ¶¶ 5-7 (2008 ). ¶10 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 regardin g the jurisdictional issue . 7 NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeki ng such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not pr ovide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final de cision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please re ad carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be 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 not ice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must su bmit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative 9 receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims onl y, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 2 0507 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 personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 Petition ers 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, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower 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. 11 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our webs ite at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	REYES_CAROLINA_A_DC_0843_17_0542_I_1_FINAL_ORDER_2045516.pdf	2023-06-29	null	DC-0843	NP
2,973	https://www.mspb.gov/decisions/nonprecedential/HUDSON_JESSIE_DONALD_AT_3330_17_0266_I_1_FINAL_ORDER_2044833.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JESSIE DONALD HUDSON , Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-3330 -17-0266 -I-1 DATE: June 28, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jessie Donald Hudson , Stone Mountain, Georgia, pro se. Dafni Kiritsis , Syracuse, New York, for the agency. BEFORE Cathy A. Harris, Vice Ch airman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a peti tion for review of the initial decision, which dismissed his request for corrective action under the Veterans Employment Opportunities Act of 1998 (VEOA) as untimely filed. 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 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 contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is ava ilable that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting 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 On November 29 and December 1, 2016, the Department of Labor (DOL) issued letters stating that it was closing its inv estigation into the appellant’s VEOA complaints. Initial Appeal File (IAF), Tab 9 at 32, 36. The DOL also informed the appellant of his right to appeal to the Board within 15 days of the date he received the letters. Id. at 32, 37. ¶3 On January 21, 2017, the appellant filed his appeal. IAF, Tab 1. The administrative judge issued a jurisdictional order in which she informed the appellant of the jurisdictional requirements and burdens of proof in a VEOA appeal. IAF, Tab 3. She also issued a show cause or der in which she informed the appellant that his appeal was filed after the 15 -day deadline had lapsed, but she noted that the deadline was subject to equitable tolling , and she advised him as to the criteria for establishing whether the deadline should be equitably tolled. IAF, Tab 8. ¶4 The appellant filed a lengthy response in which he addressed the merits of the agency actions underlying his VEOA complaints, but he did not discuss the timeliness of his appeal or the question of equitable tolling. IAF, Tab 9. The 3 administrative judge dismissed the appeal as untimely filed. IAF, Tab 10, Initial Decision (ID) . In his petition for review, the appellant again argues the merits of his VEOA claims and does not address the timeliness of the appeal. Petition f or Review File, Tab 1. ¶5 An appellant must file his VEOA appeal within 15 days after receiving written notification from the Secretary of Labor concerning the results of the DOL’s investigation. Gingery v. Department of the Treasury , 110 M.S.P.R. 83 , ¶ 23 (2008) . The appellant did not indicate when he received the DOL’s letters. There is no evidence concerning when the appellant received the letters, but Board precedent and regulations recognize that documents placed in the mail are presumed to be received within 5 days. Lagreca v. U.S. Postal Service , 114 M.S.P.R. 162 , ¶ 6 (2010) . The twentieth day after the latest date that the DOL’s letters were mailed is December 21, 2016, as the administrative judge correctly found. ID at 3; see Williamson v. U.S. Postal Service , 106 M.S.P.R. 502, ¶ 7 (2007) (recognizing that a DOL letter provid ing notice that it has closed the investigation is presumed to have been received 5 days after it was issued). The appellant’s appeal, filed on January 21, 2017, was approximately 1 month late. ¶6 The 15 -day deadline for filing a VEOA appeal is set by statut e, 5 U.S.C. § 3330a (d)(1)(B), and therefore cannot be waived for good cause shown. Williamson , 106 M.S.P.R. 502, ¶ 6. However, it is by now well established that the deadline is subject to equitable tolling. Gingery , 110 M.S.P.R. 83 , ¶ 24. Equitable tolling is allowed “only sparingly” in situations in which the appellant actively pursued his remedies by filing a defective pleading durin g the statutory period, or when the appellant has been induced or tricked by the agency’s misconduct into allowing the filing deadline to pass. Id. (citing Irwin v. Department of Veterans Affairs , 498 U.S. 89 , 96 (1990 )). ¶7 Here, the appellant has not claimed that he filed a defective pleading during the statutory filing period or that the agency tricked or induce d him into allowing 4 the deadline to pass. In fact, the appellant fails even to acknowledge that he filed his appeal late. Under the circumstances, we find that the administrative judge correctly dismissed this appeal as untimely filed. NOTICE OF APPEAL R IGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representati ve receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 6 race, color, religion, sex, nati onal origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 7 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HUDSON_JESSIE_DONALD_AT_3330_17_0266_I_1_FINAL_ORDER_2044833.pdf	2023-06-28	null	AT-3330	NP
2,974	https://www.mspb.gov/decisions/nonprecedential/SCOTT_THOMAS_A_AT_1221_17_0637_W_1_REMAND_ORDER_2044855.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD THOMAS A. SCOTT, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER AT-1221 -17-0637 -W-1 DATE: June 28, 2023 THIS ORDER IS NONPRECEDENTIAL1 James Ouellette , Esquire, Martinez, Georgia, for the appellant. Christopher M. Kenny , Fort Gordon, Georgia, for the agency. BEFORE Cathy A. Harris, Vice Ch airman Raymond A. Limon, Member REMAND ORDER ¶1 The appellant has filed a pet ition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction . For the reasons discussed below, we GRANT the appellant’s petition for review and REMAND the case to the Atlanta Regional O ffice 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 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 BACKGROUND ¶2 The appellant was a GS -11 Physical Security Specialist for the agency , stationed at Fort Gordon, Georgia. Initial Appeal File (IAF), Tab 1 at 2. On July 17, 2017, he filed the instant IRA appeal with the Board, alleging that he made 14 protected disclosures between 2012 and 2016 related to alleged breaches of security protocol and that the agency took numerous personnel actions against him in retaliation for these disclosures. Id. at 4-5. The administrative judge issued an order infor ming the appellant of the jurisdictional standard in an IRA appeal and directing him to file evidence and argument on the issue. IAF, Tab 3. The appellant responded by filing several pages of documentary evidence. IAF, Tab 5. ¶3 After the close of the reco rd, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction on the basis that the appellant failed to make a nonfrivolous allegation that he made a protected disclosure. IAF, Tab 8, Initial Decision (ID). The ap pellant has filed a petition for review in which he provides additional informa tion related to his disclosures and submit s for the first time several exhibits, some of which he claims to have submitted previously but which do not appear in the record below . Petition for Review (PFR) File, Tab 1. The agency has filed a re sponse to the petition for review, PFR File, Tab 3, and the appellant has filed a reply to the agency’s response, PFR File, Tab 4. ANALYSIS ¶4 As relevant here, to establish jurisdiction over an IRA appeal, an appellant must exhaust his administrative remedies with the Office of Special Counsel (OSC) and make nonfrivolous allegations that he made a protected disclosure and that his disclosure was a contributing factor in the agency ’s decision to take , threaten to take, or fail to take a covered personnel action against him . Yunus v. Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001); Rusin v. 3 Department of the Treasury , 92 M.S.P.R. 298, ¶ 9 (2002).2 For the reasons explained in the initial decisi on, we agree with the administrative judge that the appellant failed to satisfy his jurisdictional burden below. ID at 3 -6. We find that the initial decision was correct and that the administrative judge made no error in reaching his conclusion . ¶5 Furtherm ore, although the issue of jurisdiction is always before the Board, the Board generally will not consider evidence submitted for the first time on review absent a showing that it was previously unavailable despite the party’s due diligence. See Washington v. Department of the Navy , 77 M.S.P.R. 525 , 528 -29 (1998) ; Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) ; 5 C.F.R. § 1201.115 (d). Nevertheless, under the u nique circumstances of this case, we exercise our discretion to consider the appellant’s newly filed evidence. See 5 C.F.R. § 1201.115 (e). It appears to us that the appellant was genui nely confused and actually believed that he had submitted this evidence, labeled as Exhibits 1-23, on July 28, 2017, before the close of the record below.3 The appellant alleges on review that he uploaded these documents through the Board’s e-Appeal Onlin e system on that date and subsequently confirmed that they were posted in the repository. PFR File, Tab 1 at 4. Although we are unable to confirm the appellant’s version of events through his e -Appeal Online activity, other evidence of record is consiste nt with his account. Specifically, on July 31, 2017, the appella nt filed exhibits labeled 24 -32 and noted on the transmission sheet that these were in addition to Exhibits 1-23, which were previously filed. IAF, Tab 5. Furthermore, the appellant’s Exhib it 2 is an affidavit that was 2 The Whistleblower Protection Enhancement Act (WPEA), which went into effect on December 27, 2012, does not affect the relevant holding in th ese cited authorities , nor does it affect the relevant ho ldings in the other authorities cited herein that were issued prior to the effective date of the WPEA. See Pub. L. No. 112 -199, 126 Stat. 1465 (2012). 3 On review, the appellant submits only Exhibits 2, 4-8, and 14 -15. PFR File, Tab 1 at 24-50. 4 notarized on July 27, 2017, which supports his claim that he attempted to file it with the Board the following day. PFR File, Tab 1 at 33. We also note that, although the appellant has designated an attorney to represent him, IAF, Tab 1 at 10, the representation that he is actually receiving is limit ed. As the administrative judge noted, the appellant’s attorney has made no submissions whatsoever in this appeal. ID at 2 n.1. Therefore, notwithstanding any legal advice that the appellant may be receiving from his attorney, he seems to be effectively acting pro se when it comes to actually filing his pleadings. Considering the appellant’s effective pro se status, his genuine confusion, his apparent reasonable diligence, and the jurisdictional nature of the matter at issue, we find that , in this parti cular case , the interests of justice are best served by the Board considering, as appropriate, the documentation he has submitted for the first time on petition for review.4 ¶6 Considering this documentation, we find that the appellant has established jurisd iction over his appeal. First, as the administrative judge correctly found, the appellant has exhausted his administrative remedies with OSC. ID at 2; IAF, Tab 1 at 11 -16. Second, the appellant has made a nonfrivolous allegation that he made at least on e protected disclosure. The appellant alleges that, on November 7, 2014, the Secretary of the Army directed Army installations to conduct National Crime Information Center background checks on all non-Department of Defense personnel before granting such i ndividuals access to the installation. PFR File, Tab 1 at 34. He further alleges that on January 23, 2015, he informed various agency officials of an incident in which an agency 4 The app ellant also has submitted additional evidence and allegations of fact, for the first time on review, outside the Exhibits 1-23 that he attempted to submit below. PFR File, Tab 1 at 7 -12, 60 -96. Enforcing the Board’s general rule that it will not consider evidence and argument raised for the first time on petition for review without a showing that it previously was unavailable despite the party’s due diligence, we have not considered these allegations and documents in deciding whether the appellant made a nonfrivolous allegation of Board jurisdiction. See Washington , 77 M.S.P.R. at 528 -29. 5 employee failed to conduct a background check as required, resulting in an individual with an active arrest warrant gaining access to Fort Gordon. PFR File, Tab 1 at 34 -35, 47 -48; IAF, Tab 5 at 9, 20. We find that the appellant has made a nonfrivolous allegation that he reasonably believed that this disclosure evidenced a violat ion of law, rule, or regulation, or a substantial and specific danger to public health and safety. See Aquino v. Department of Homeland Security , 121 M.S.P.R. 35 , ¶ 14 (2014) . Third, we find that the appellant has made a nonfrivolous allegation that this disclosure was a contributing factor in a personnel action. One of the individuals to whom the appellant made his discl osure was the Director of Emergency Services. IAF, Tab 5 at 9. The appellant alleges that, on May 5, 2016, or shortly thereafter, the Director of Emergency Services ordered the appellant to begin performing the duties of another position in addition to his own. PFR File, Tab 1 at 27, 30. We find that the appellant has made a nonfrivolous allegation that this “cross -training,” as he calls it, constituted a significant change in duties or responsibilities —a personnel action under 5 U.S.C. § 2302 (a)(2)(A)(xii). We further find that the appellant has made a nonfrivolous allegation under the knowledge/timin g test of 5 U.S.C. § 1221 (e)(1) that his disclosure was a contributing factor in this personnel action. See Redschlag v. Department of the Army , 89 M.S.P.R. 589 , ¶ 87 (2001) (finding that the knowledge/timing test was satisfied when the personnel action was taken 18 months after the disclosure). ¶7 We make no findings on the other 13 disclosures at issue or the other alleged personnel actions that the appellant identifies in this appeal. In his petition for review , the appellant has clearly identified the precise date and content of each disclosure, as well as the individuals who were aware of the disclosures. PFR File, Tab 1 at 7 -12. However, because the administrative judge is primarily responsible for ensuring the developmen t of the record and otherwise governing the proceedings on remand, we find it appropriate for him to consider these matters in the first instance. 6 ORDER ¶8 For the reasons discussed above, we remand this case to the Atlanta Regional Office for further adjudic ation in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SCOTT_THOMAS_A_AT_1221_17_0637_W_1_REMAND_ORDER_2044855.pdf	2023-06-28	null	AT-1221	NP
2,975	https://www.mspb.gov/decisions/nonprecedential/WILKERSON_ANDREW_D_DA_0752_18_0216_I_1_FINAL_ORDER_2044909.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ANDREW D. WILKERSON, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER S DA-0752 -18-0216 -I-1 DA-1221 -18-0217 -W-1 DATE: June 28, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Andrew D. Wilkerson , El Paso, Texas, pro se. Alexandria P. Tramel and Karen Denise Haertl , Fort Worth, Texas, Ernest A. Burford , Esquire, 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 affirmed the appellant’s removal and denied his request for corrective action 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 dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 his individual right of action (IRA) appeal .2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material ev idence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). DISCUSSION OF ARGUME NTS ON REVIEW ¶2 The appellant was employed by the agency as a Civil Engineer. I nitial Appeal File (IAF),3 Tab 11 at 116. In July 2017, the appellant filed a whistleblower reprisal complaint with the Office of Special Counsel (OSC). IAF, Tab 34 at 53 -54. In subsequent communications with OSC, he specifically alleged that the agency took a number of personnel actions, including 2 Joinder of two or more appeals filed by the same appellant is appropriate when doing so would expedite case processing and will not adversely affect the parties’ interests. Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ 1 n.1 (2015) , overruled on other grounds by Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 23-25; 5 C.F.R. § 1201.36 (a)-(b). We find that these criteria ar e satisfied here , and we therefore JOIN the two appeals. 3 Unless otherwise specified, references to the Initial Appeal File are to the file in MSPB Docket No. DA -0752 -18-0216 -I-1. 3 investigating him and placing him on absence without leave (AWOL), in retaliation for his protected disclosures. Id. at 55 -56, 58. ¶3 In November 2017, while the whistleblower complaint was pending before OSC , the agency proposed the appellant’s removal based on charges of Conduct Unbecoming a Federal Employee (3 specifications); Making Statements (or Sending E -mails) that Cause Anxiety and Disruption in the Workplace (4 specifications); Insubordination (2 specifications); Making False Statements (4 specifications); and Lack of Candor (2 specifications). IAF, Tab 11 at 96 -114. The appellant raised the proposed removal before OSC. IAF, Tab 34 at 60 -62. ¶4 By letter dated January 4, 2018, OSC informed the appel lant that it had closed its investigation into his complaint and that he had the right to file an IRA appeal within 65 days. IAF, Tab 34 at 114. By letter dated March 1, 2018, t he agency issued a decision removing the appellant effective the following day. IAF, Tab 11 at 74-94. The appellant filed a Board appeal on March 1, 2018, IAF, Tab 1, which the Board docketed separately as a chapter 75 removal appeal and an IRA appeal.4 ¶5 After holding a hearing covering both appeals, the administrative judge issued a single initial decision affirming the appellant’s removal and denying his request for corrective action in his IRA appeal. IAF, Tab 122 , Initial Decision (ID). The administrative judge found that the agency proved all three specifications of the co nduct unbecoming charge, ID at 4 -13, o ne of the four specifications of the charge of making statements that cause anxiety and disruption in the workplace , ID at 14 -17, and both specifications of insubordination, ID at 17 -20, but that it failed to prove its charges of making false 4 The appellant repeatedly requested that the Board stay his removal, but t he administrative judge denied those requests, finding the appellant failed to show that there was a substantial likelihood he would prevail on the merits of his whistleblower retaliation claim. See 5 U.S.C. § 1221 (c); Wilkerson v. Department of the Army , DA-0752 -18-0216 -S-3, Stay Decision (Apr. 26, 2018). 4 statements and lack of candor, ID at 20 -27. He further found that the agency established a nexus between the appellant’s proven misconduct and the efficiency of the service, ID at 27 -28, and that removal was a reasonable penalty f or the proven misconduct, ID at 28 -33. The administrative judge then addressed the appellant’s claims of reprisal for protected disclosures and activities in connection with both the removal and the personnel actions raised in his IRA appeal. The adminis trative judge found that the appellant proved that he engaged in protected whistleblowing activity when he filed a prior IRA appeal, shared information with a member of Congress, disclosed alleged contracting improprieties to agency investigators, and disc losed information to OSC. ID at 35-42. The administrative judge further found that the appellant established that his protected whistleblowing was a contributing factor in a June 2017 letter of reprimand, the proposal and decision to remove him, his plac ement on AWOL for several days in June and July 2017, and his placement on full -time telework. ID at 43 -49. However, the administrative judge found that the appellant failed to establish that the agency subjected him to a hostile work environment . ID at 47-48.5 For those protected activities that the appellant proved were a contributing factor in personnel actions, the administrative judge found that the agency proved by clear and convincing evidence that it would have taken the same actions absent the appellant’s protected whistleblowing. ID at 50 -62. ¶6 The appellant has filed identical petitions for review in both appeals. Petition for Review (PFR) File, Tab 2. He accuses agency officials of a variety of criminal acts and other misconduct. Id. at 4-5. He also makes a number of 5 The administrative judge considered the appellant’s claim that the agency retaliated against him by investigating him, but he found that an investigation per se is not a personnel action. ID at 49 -50. However, the administrative judge considered the appellant’s claims regarding the investigation in evaluating whether the agency proved by clear and convincing evidence tha t it would have taken the actions resulting from that investigation (i.e., the proposed removal and removal decision) in the absence of his protected whistleblowing. ID at 49 -50, 56 -58. 5 factual assertions without reference to the record. Id. at 16 -26. The appellant alleges that the agency improperly withheld information during discovery and that the administrative judge committed harmful procedural error. Id. at 29. The agency has filed a response , PFR File, Tab 4, and the appellant has filed a reply, PFR File, Tab 5. ¶7 A petition for review states a party ’s objections to the initial decision, including all of the party ’s legal and factual arguments, and must be supported by references to applicable laws or regulations and by specific references to the record. See 5 C.F.R. § 1201.114 (b). A petition for review must contain sufficient specif icity to enable the Board to ascertain whether there is a serious evidentiary challenge justifying a complete review of the record . Tines v. Department of the Air Force , 56 M.S.P.R. 90 , 92 (1992). Before the Board will undertake a complete review of the record, the petitioning party must explain why the challenged factual determination is incorrect and identify the specific evidence in the record that demonstrates the error . Weaver v. Department of the Navy , 2 M.S.P.R. 129 , 133 (1980). The Board will not disturb an administrative judge’s findings when he considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility. Crosby v. U.S. Post al Service , 74 M.S.P.R. 98 , 106 (1997); Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987). ¶8 The appellant’s arguments on petition for review do not meet the Board’s standard for review. His allegations of criminal conduct lack evid entiary support and he fails to explain how those matters relate to the issues before the Board in these appeals. Likewise , although he appears to challenge some of the administrative judge ’s factual findings and credibility determinations, he fails to identify the specific evidence that supports his position. We find no reason to disturb the administrative judge ’s well -reasoned findings and credibility determinations. 6 ¶9 The appellant’s argum ents regarding alleged procedural error also do not warrant reversing the initial decision . Even if we were to accept as true the appellant’s bare assertion that the administrative judge told the appellant he could not award corrective action, PFR File, T ab 2 at 29, the appellant has not shown how that statement affected his rights. See Karapinka v. Department of Energy , 6 M.S.P.R. 124 , 127 (19 81) (t he administrative judge ’s procedural error is of no legal consequence unless it is shown to have adversely affected a party ’s substantive rights ). ¶10 Finally, we find that the appellant’s arguments regarding discovery do not provide a basis for reversin g the initial decision. The administrative judge denied the appellant’s motion to compel discovery as untimely filed. IAF, Tab 92. The appellant has not explained how the administrative judge erred in that ruling, and we see no reason to disturb it. See McCarthy v. International Boundary and Water Com mission : U.S. and Mexico , 116 M.S.P.R. 594 , ¶ 15 (2011) (an administrative j udge has broad discretion in ruling on discovery matters and, absent a showing of abuse of discretion, the Board will not find reversible error in such rulings ), aff’d, 497 F. App ’x 4 (Fed.Cir.2012). ¶11 We have considered the appellant’s remaining arguments on review , and we find that they do not warrant reversal of the initial decision. NOTICE OF APPEAL RIG HTS6 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nat ure of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most 6 Since the issuance of the initial decision in this matter, the Boar d may have updated the notice 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 appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one t o review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court o f Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10 , and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 8 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases in volving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obt ain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you h ave a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.u scourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 9 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for re view to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enha ncement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of compete nt jurisdiction.7 The court of appeals must receive your petition for 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 10 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judic ial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Pract ice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono rep resentation for Merit Systems Protection Board appellants before the 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. 11 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	WILKERSON_ANDREW_D_DA_0752_18_0216_I_1_FINAL_ORDER_2044909.pdf	2023-06-28	null	S	NP
2,976	https://www.mspb.gov/decisions/nonprecedential/ARREDONDOLOPEZ_JUAN_WILLIAM_PH_0714_17_0438_C_1_FINAL_ORDER_2044961.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JUAN WILLIAM ARREDONDOLOPEZ, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER PH-0714 -17-0438 -C-1 DATE: June 28, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Juan William Arredondolopez , Shoemakersville, Pennsylvania, pro se. Stacey Conroy , Esquire, Philadelphia , Pennsylvania, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member FINAL OR DER ¶1 The appellant has filed a petition for review and the agency has filed a cross petition for review of the compliance initial decision, which denied the appellant’s petition for enforcement . Generally, we grant petitions such as these 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 only in the follo wing circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrati ve judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or leg al argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the 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 cro ss petition for review and AFFIRM the compliance initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). We FORWARD the appellant’s new allegation of noncompliance to the regional office for docketing as a petition for enforcement. 5 C.F.R. § 1201.182 (a). BACKGROUND ¶2 On September 18, 2017, the appellant appealed the agency’s decis ion to remove him from his position as Chief Supervisory Radiologic Technologist (CSRT), GS-11, at the agency’s Corporal Michael J. Crescenz Medical Center in Philadelphia, Pennsylvania. Arredondolopez v. Department of Veterans Affairs , MSPB Docket No. PH-0714 -17-0438 -I-1, Init ial Appeal File (IAF), Tab 1. After holding a hearing, the administrative judge issued an initial decision finding that the agency failed to prove its charge s and reversing the appellant’ s removal. IAF, Tab 30. The administrative judge ordered the agency to retroactively restore the appellant, effective September 12, 2017, pay him the appropriate amount of back pay, with interest, and adjust his benefits with appropriate credits and deductions. 3 Id. The initial decision became the final decision of the Board on March 20, 2018 , after neither party filed a petition for review. See 5 C.F.R. § 1201.113 . ¶3 On April 13, 2018 , the appellant filed a petition for enforceme nt of the Board’s f inal decision alleging that the agency had failed to comply with the Board’s order to reinstate him. Compliance File (CF), Tab 1. In particular, he alleged that the agency had improperly abolished his prior position to prevent him from returning to it and improperly detailed him to a position as an Administrative Specialist in the Research and Deve lopment Service, a position which he alleged was not substantially similar to his prior position. Id. at 2-3. In response, the agency asserted that it had begu n contemplating abolishing the appellant’s position as redundant in fiscal year 2015 and concl uded the process in January 2018 . CF, Tab 3 at 4-5. The agency further represented that there were no vacant super visory GS -11 positions, but that it was actively searching for one in which to place the appellant permanently and that it planned to reassign him to a supervisory position in Patient Care Services (PCS) , pending classification of the position. Id. at 5. ¶4 On June 18, 2018 , the administrative judge issued a compliance initi al decision denying the appella nt’s petit ion for enforcement. CF, Tab 4 , Compliance Initial Decision (CID).2 The administrative judge found that the agency proved that it had a compellin g reason for not returning the appellant to his former position based on declarations from agency officials attesting that the former position had been abolished. CID at 3 -4. The administrative judge further found that the appellant was returned as nearl y as possible to the status quo ante because he was in the same position that he would have been had the agency not 2 The compliance initial decision was erroneously dated June 22, 2018. CID at 1. On August 2, 2018, the administrative judge issued an Erratum Order correcting the date to be June 18, 2018. CF, Ta b 6. 4 removed him, abolished his position, and exercised its discretion to temporarily detail him while it searched for another position for him. CID at 4 -5. ¶5 The appellant has filed a petition for review. Petition for Review ( PFR ) File, Tab 1. The agency has filed a cross petition for review asserting that the appellant’s petition is untimely filed , and it has also filed a response opposing the appellant’s petition on the merits. PFR File, Tab 4. The appellant has filed a reply. PFR File, Tab 6. DISCUSSION OF ARGUME NTS ON REVIEW We deny the agency’s cross petition for review. ¶6 In its cross petition for review, the agency argues that the appellant’s petition for review was untimely filed on July 26, 2018 , three days after the July 23, 2018 deadline . PFR File, Tab 4 at 5. The agency further requests reconsideration of the Office of the Clerk of the Board’s decision to accept the petition as timely. Id. at 5-6. We reject the agency’s arguments. The record reflects that the compliance initial decisi on was erroneously dated June 22 , 2018, and thus, erroneously notified the appellant that the deadline for filing his petition for review was July 27, 2018 , thirty -five days after June 22, 2018. CID at 5. The appellant filed his petition for rev iew on July 26, 2018. PFR File, Tab 1. On August 2, 2018, the Office of the Clerk of the Board accepted the appellant’s petition as timely, noti ng that it was filed in accordance with the finality date set forth in the compliance initial decision.3 PFR File, Tab 2. Also on August 2, 2018, the administrative judge issued an Erratum Order correcting the date of the compliance initial decision to J une 22, 2018. CF, Tab 6. 3 The agency argues t hat it was prejudiced by this 3 -day delay because , but for the administrative error , it “would only [have] had to respond to the PFR on the basis of timeliness, not the merits, which would have conserved valuable resources.” PFR File, Tab 4 at 5. We are not persuaded by this argument. It is equally as likely that, had the appellant been informed of the proper deadline, he would have timely filed his petition for review, necessitating the agency to respond to the merits. 5 ¶7 The Board’ s regulations provide that a petition for review must be filed within 35 days of the issuance of the initial decision or, if the appellant shows that the initial decision was received more than 5 days after the date of i ssuance, within 30 days after the date he received the initial decision. 5 C.F.R. § 1201.114 (e). However, t he Board will excuse the late filing of a petition for review on a showing of good cause for the delay. 5 C.F.R. § 1201.114 (g). To establish good cause for an untimely filing, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). To determine whether an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of 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 that similarly shows a causal relationship to his inability to timely file his petitio n. 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). ¶8 Although we find that the appellant’s petition was not filed within 35 days of the correct date of the initial decision, we find that good cause exists to waive the filing deadline because the administrative judge erred in informing the appellant of the deadline for filing a petition for review and t he appellant’s petition was submitted in accordance with the administrative judge’s instructions. Accordingly, we accept the appellant’s petition as timely filed. We deny the appellant’s petition for review. ¶9 The agenc y bears the burden of establishing that it has complied with a final Board order. Spates v. U.S. Postal Service , 70 M.S.P.R. 43 8, 441 (1996). Compliance requires that the appellant be returned as nearly as possible to the status quo ante consist ent with the terms of the Board’ s final order. Foreman v. U.S. Postal Service , 82 M.S.P.R. 332 , 336 (1998). Contentions pertaining to the 6 enforcement of a final Board decision are initially considered by the regional or field office that issued the initial decision. 5 C.F.R. § 1201.182 (a); see Smith v. Department of the A rmy, 89 M.S.P.R. 82 , ¶ 6 (2001). ¶10 We discern no error in the administrative judge’s finding that the agency had a compelling reason fo r not returning the appellant to his former position because it had been abolished. CID at 3 -4; see, e.g. , Currier v. U.S. Postal Service , 72 M.S.P.R. 191 , 199 (1996) . On review, the appellant reiterates his argument below that th e agency had improper motives for abolishing his position. PFR File, Tab 1 at 6 -7. However, the administrative judge considered and rejected such an ar gument. CID at 3 -4. Thus, the appellant’s argument amounts to mere disagreement with the administrative judge’s finding and does not provide a basis for reversal. See, e.g. , Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105 -06 (1997) (finding no reason to d isturb the administrative judge’ s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions); Broughton v. Department of Health and Human Services , 33 M.S.P. R. 357 , 359 (1987) (same). The appellant also disputes the agency’ s assertion that his former position was abolished due to the lack of funding and submits new evidence , which he contends shows that the budget for full -time employees has steadily risen fr om 2015 to 2017. PFR File, Tab 1 at 7, 119 -21. The appellant, however, has not explained why he could not have submitted such evidence , which appears to date back to 2014 and 2016, before the record below closed, and we decline to consider it for the fir st 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 argume nt 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).4 4 For th e same reason, we also decline to consider the appellant ’s argument raised for the first time in his reply that the agency’s action violates its handbook because the 7 ¶11 The appellant also contends that the agency did not actually abolish his position because another employee in the Diagnostic I maging Service was assigned his duties. PFR File, Tab 6 at 9, 13. However, this is consistent with the agency’s representation that the administrative duties previously under the appellant’s abolished posi tion were divided bet ween the Administrative Officer and PACS Administrator. CF, Tab 3 at 22. Finally, the appellant disputes the merits of the agency’s decision to abolish his position and submits new documentation showing that similar organizational structure s, in which a Chief Technologist oversees supervisors and leads , exist throughout the agency. PFR File, Tab 6 at 10, 16 -18. He has not , however, explained why he could not have submitted such information below. Regardless, the Board lacks juris diction over matters concerning the agency’s authority to abolish positions. See D’Leo v. Department of the Navy , 53 M.S.P.R. 44 , 48 (1992). ¶12 Regarding his temporary assignment , the appellant reiterates his argument that the agency made no showing that the duties and responsibilities of his temporary assignment as an Administrative Specialist in the Research and Development Service are substantial ly similar to his former duties and responsibilities as a Chief Supervisory Radiologic Technologist.5 PFR File, Tab 1 at 8. In response, the agency points out that it merely temporarily detailed the appellant to the Administrative Services position. PFR File, Tab 4 at 7. Additionally, t he agency has acknowledged that the appellant’s temporary detail notice was vague and did not specify the duratio n of the detail. PFR File, Tab 6 at 8, 11 -12. 5 The appellant also argues for the first time on review that there was an available GS-11 position in the Diagnostic Imaging Service to which he could have been assigned. PFR File, Tab 6 at 10. In support of his argument, he submits new evidence dated after the close of the record below consisting of a vacancy announcement for the position of Diagnostic Radiologic Te chnologist (Quality Management), which was open from June 22 to July 13, 2018 . Id. at 15. This position, however, is not a supervisory position . Id. 8 assignment was not a supervisory position , but that no vacant funded supervisory GS-11 positions were available, and it was actively working to reclassifying the GS-11 PCS position to add supervisory duties. CF, Tab 3 at 8. ¶13 The administrative judge found that the agency had not yet reassigned the appellant to a new position. CID at 4. He further found that the appellant was in no worse position than had the agency not rem oved him but instead had abolished his position and te mporarily assigned him duties. Id. at 4-5. We discern no error in the administrative judge’s finding that the agency reinstated the appellant as nearly as possible to the status quo ante when it temporarily assigned him duties while searching for a comparable supervisory GS -11 position to which it could permanently reassign him. We forward the app ellant’s new allegation of non compliance to the regional office for docketing . ¶14 After the compliance initial decision was issued , on July 6, 2018 , the agency issued the appellant a management directed reassignment to the position of Supervisory Ad ministrative Specialist (GS -11) with PCS, effective August 5, 2018. PFR File, Tab 6 at 19. However, the record does not contain a description of the duties and responsibilities of this position. Thus, it is not clear whether such a position is substantially similar to the appellant’s former Chief Supervisory Radiologic Technologist position. Additional ly, the agency asserts that, in lieu of accepting this position, the appellant applied for and accepted a position as an Administrative Specialist in the Research and Development Service, the same position to which he had been temporarily assigned. PFR Fi le, Tab 4 at 9 -10. The appellant appears to concede that he accepted the Administrative Specialist position, but he argues that he did so rather than risk being removed for not meeting the requirements of the PCS Supervi sory Administrative Specialist position due to not having a nursing background . PFR File, Tab 6 at 9. 9 ¶15 Thus, the evidence before the Board does not show whether the age ncy has complied with the Board’ s final decision with regard to the appellant’s reinstatement. Because contentions per taining to the enforcement of a final Board decision should be considered first by the regional or field office that issued the initial decision, we forward the appellant’s allegation that the agency’s July 6, 2018 management directed reassignment failed t o comply with the Board’s order to the Northeastern Regional Office for the administrative judge to consider as a new petition for enforcement of the Board’s final decision . See 5 C.F.R. § 1201.182 (a); Smith , 89 M.S.P.R. 82 , ¶ 6. NOTICE OF APPEAL RIG HTS6 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to yo ur particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropria te in any matter. 10 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circ uit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Peti tioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attor ney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 11 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representativ e in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination base d on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_L ocator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representati ve in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S . mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signatur e, it must be addressed to: 12 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U .S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the Presi dent on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent ju risdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 13 Additional information about the U.S. Cou rt of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6 , 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Mer it Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C . /s/ for Jennifer Everling Acting Clerk of the Board	ARREDONDOLOPEZ_JUAN_WILLIAM_PH_0714_17_0438_C_1_FINAL_ORDER_2044961.pdf	2023-06-28	null	PH-0714	NP
2,977	https://www.mspb.gov/decisions/nonprecedential/RODRIGUEZ_LUPE_I_PH_0845_17_0402_I_1_REMAND_ORDER_2044979.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LUPE I. RODRIGUEZ, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER PH-0845 -17-0402 -I-1 DATE: June 28, 2023 THIS ORDER IS NONPRECEDENTIAL Lupe I. Rodriguez , Stratford, Connecticut, pro se. Carla Robinson , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Ch airman Raymond A. Limon, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review , VACATE the initial decision, and  A nonprecedential order is one that the Board has determined does not add significantly to the 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 REMAND the case to the New York Field Office for further adjudication in accordance with this R emand Order. ¶2 The appellant appealed a purported determination by the Office of Personnel Management (OPM) that she was not entitled to a waiver of an overpayment due to financial hardship . Initial Appeal File (IAF), Tab 1. The administrative judge ordered the appellant to file evidence and argument establishing jurisdiction and informed her that she should provide OPM’s final decision on the matter, if she had it. IAF, Tab 3. The appellant failed to provide such a final decision, and OPM asserted that it was unable to locate any records concerning the appellant. IAF, Tabs 5 -7. Because the appellant failed to establish that OPM had issued a final decision, the administrative judge dismissed the appeal for lack of jurisdi ction. IAF, Tab 8, Initial Decision. ¶3 On review, the appellant asserts that she is e ntitled to a waiver because of medical and financial hardship . Petition for Review (PFR) File, Tab 1. She attaches proof of various communications she had with OPM and ev idence pertaining to her medical conditions. Id. In its response, OPM asserts that it has located the appellant’ s retirement file and determined that it issued her a final decision. PFR File , Tab 5. OPM states that it would not object to the Board vaca ting the initial decision and remand ing the appeal for a decision on the merits. Id. OPM has not submitted its final decision into the record; however, based on OPM’s representations, we find it appropriate to vacate the initial decision and remand the c ase for further adjudication . We make no findings at this time on the merits of the appellant’s arguments. 3 ORDER ¶4 For the re asons discussed above, we remand this case to the New York Field Office for further adjudication in accordance with this Remand Orde r. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	RODRIGUEZ_LUPE_I_PH_0845_17_0402_I_1_REMAND_ORDER_2044979.pdf	2023-06-28	null	PH-0845	NP
2,978	https://www.mspb.gov/decisions/nonprecedential/STUSSY_DIETER_SF_1221_17_0095_W_1_FINAL_ORDER_2045051.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DIETER STUSSY, Appellant, v. DEPARTMENT OF THE TR EASURY, Agency. DOCKET NUMBER SF-1221 -17-0095 -W-1 DATE: June 28, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Dieter Stussy , Las Vegas, Nevada, pro se. Mikel C. Deimler , Esquire, San Francisco, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his individual righ t of action (IRA) appeal as barred by collateral estoppel. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneou s 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 dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 in volved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Cod e of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting 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 ¶2 The appellant , an In ternal Revenue Service employee , was removed in 1993. His grievance of that matter was resolved by a 1994 settlement agreement pursuant to which his removal was changed to a resignation, effective February 15, 1994. In February 2012, he appli ed for disability retirement under the Federal Employees’ Retirement System , but the Office of Personnel Management (OPM) dismissed his application as untimely filed. On appeal, a Board administrative judge affirmed OP M’s decision, the full Board denied the appellant’s petition for review of the decision, Stussy v. Office of Personnel Management , MSPB Docket No. SF -844E -13-0168 -I-1, Final Order at 2, 6 (May 7, 2014), and the U.S. Court of Appeals for the Federal Circuit affirmed the Board’s decision , Stussy v. Office of Personnel Management , 662 F. App’x 972 (Fed. Cir. 2016) ; Petition for Review (PFR) File, Tab 1 at 19. ¶3 On November 4, 2013, the appellant filed an IRA appeal alleging , inter alia , that, in retaliation for his whistleblowing activities, the agency conspired to remove him in 1993 and entered into an invalid settlement agreement in 1994, rendering his resignation involuntary . Finding that the appellant failed to 3 establish exhaustion and otherwise satisf y the jurisdictional requirements for an IRA appeal , the administrative judge dismissed it. Stussy v. Department of the Treasury , MSPB Docket No. SF -1221 -14-0068 -W-1, Initial Decision at 9 -10 (Mar. 26, 2014) ; 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 administrat ive remedies before the Office of Special Counsel (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). On review, the full Board affirmed the initial decision but modified it to dismiss as untimely the appellant’s IRA claim that he exhausted his remedy with OSC in 1997 and 1998, and to find that the reason the Board lacks jurisdiction over his claim that his resignation was involuntary is that he elected to first challenge that matter through the negotiated grievance procedure . Stussy v. Department of the Treasury , MSPB Docket No. SF -1221 -14-0068 -W-1, Final Order at 4-5, 7-8 (June 23, 2015). Despite the Board’s guidance as to how the appellant could challenge its decision, he sought review at the Equal Employment Opportunity Commission , which denied consideration of the petition. His subsequent filing with the Federal Circuit was dismissed as untimely filed. Stussy v. Merit Systems Protection Board , No. 2016 -1553 (Fed. Cir. June 22, 2016); Initial Appeal File (IAF), Tab 7 at 9.2 2 On December 1, 2015, the appellant filed another IRA appeal in which he alleged that the Board’s administrative judge retaliated against him by ruling against him in his disability retirement appeal after he disclos ed alleged misconduct by OPM counsel and the administrative judge himself. The administrative judge in this IRA appeal dismissed the case for lack of jurisdiction, finding that the appellant failed to nonfrivolously allege that he was subjected to a perso nnel action, Stussy v. Merit Systems Protection Board , MSPB Docket No. SF -1221 -16-0142 -W-1, Initial Decision (Dec. 23, 2015), and the full Board denied the appellant’s petition for review of that decision, Stussy v. Merit Systems Protection Board , MSPB Doc ket No. SF -1221 -16- 0142 -W-1, Final Order (May 27, 2016). 4 ¶4 In thi s current IRA appeal, the appellant challenged a number of these same matter s, including the merits of his 1993 removal, the voluntariness of his 1994 resignation , and the validity of the settlement agreement that preceded it , and he again appeared to alle ge that the agency retaliated against him because of his whistleblowing activity. IAF, Tab 1 at 9-12. With his appeal, he submitted a copy of an OSC complaint he filed on August 12, 2016, seeking to reopen his previous complaint, id. at 34 -41, and a Sept ember 30, 2016 letter he received from OSC regarding his filing, id. at 32 -33. He requested a hearing. Id. at 1. In acknowledging the appeal, the administrative judge referred the appellant to his prior appeals and directed him to show why this appeal s hould not be dismissed as precluded by collateral estoppel , and he also directed the appellant to provide evidence and argument showing that he exhausted his remedy before OSC . IAF, Tab 3. The appellant responded, IAF, Tab 6, and , in its response, the ag ency urged that the appeal be dismissed for lack of jurisdiction , IAF, Tab 7. ¶5 In his initial decision based on the written record, the administrative judge dismissed the appellant’s appeal. IAF, Tab 8, Initial Decision (ID) at 1, 8. The administrative ju dge first considered the September 30, 2016 OSC letter which, he found, merely advised the appellant that it had no basis to further investigate his allegations challenging his removal but did not indicate that it was reopening his previous complaints so as to extend his deadline for filing an IRA appeal with the Board . Cf. Hawker v. Department of Veterans Affairs, 123 M.S.P.R. 62, ¶ 7 (2015) (holding that a decision by OSC to reopen its investigation deprives its initial close -out determination of the requisite finality needed for purposes of seeking Board review). As such , the administrative judge found that the appellant’s 1997 and 1998 complaints that the Board found to be untimely by 15 years remain so . ID at 4-6. The administrative judge further found, based on the Board’s decision in Stussy v. Department of the Treasury , MSPB Docket No. SF-1221 -14-0068 -W-1, Final Order (June 23, 2015), that th e appellant’s remaining cla ims were barred by collateral estoppel . ID at 6 -8. 5 ¶6 The appellant has filed a petition for review, PFR File, Tab 1, to which the agency has responded in opposition, PFR F ile, Tab 3, and the appellant has filed a reply, PFR File, Tab 4. ANALYSIS ¶7 On review, the appellant argues that neither res judicata nor collateral estoppel applies to bar consideration of his claims. PFR File, Tab 1 at 4 -8. Although the agency argued be low that the appellant’s appeal is barred by res judicata, IAF, Tab 6 at 5 -7, the administrative judge did not rely on that doctrine, but rather on collateral estoppe l, to dismiss the appellant’s appeal . ID at 6 -8. Therefore, we need not address whether the appellant’s appeal is barred by res judicata , which has different criteria. Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 337 (1995). ¶8 Collateral estoppel is appropriate when (1) the issue is identical to that involved in the prior action; (2) the issue was actually litigated in the prior action; (3) the determination on the issue in the prior action was necessary to the resulting judgment; and (4) the party against whom preclusion is sought had a full and fair opportunity to litigate the issue in the prior action. McNeil v. Department of Defense , 100 M.S.P.R. 146, ¶ 15 (2005). The administrative judge found that these criteria apply to the appellant’s claims regarding the rescinded 1993 removal, the invalidity of the 1994 settlement agreement, and the agency’s alleged violation of that agreement. ID at 6 -8. As noted, the Board in Stussy v. Department of the Treasury , MSPB Docket No. SF -1221 -14-0068 -W-1, found that the claims relate d to the 1993 removal were not timely raised to the Board following the appellant’s receipt of OSC’s closure letters, and that th e administrative judge properly found that t he Board lacks jurisdiction over the appellant’s alleged involuntary resignation claim because he elected to pursue that matter through the negotiated grievance procedure. Final Order at 5 -8. These jurisdictional and timeliness findings made in that decision bar the 6 appellant, under the doctrine of collateral estoppel, from raising the se same claim s again in this appeal. See Ford v. U.S. Postal Service , 118 M.S.P.R. 10, ¶ 11 (2012). ¶9 The appellant also alleges bias o n the part of the administrative judge as to a number of matter s. PFR File, Tab 1 at 10-14. Some of the appellant’s allegations relate to actions of the administrative judge in prior appeals (claims #1, 2, 3, and 5) and they are therefore not relevant to this appeal. The appellant’s assertions regarding the administrative judge’s actions in this case include his denying sufficient time for discovery (claim #1), “being insubordinate to [the Federal Circuit ] in entering his judicially estopped decision and thus denying the appellant’s claim ” (emphasis in original) (claim #4), mischaracterizing OSC’s correspondence (claim #6), and being “derelict in his duties” by stating th at th e appellant’s challenge to the review rights the Board provided in its 2015 Final Order is a matter more appropriately addressed to the Federal Circuit (claim #7). These allegation s of bias appear to be based only on rulings made during this proceeding and findings made in the initial decision. Such rulings and findings , even if erroneous, do not establish bias sufficient to warrant recusal. See King v. Department of the Army , 84 M.S.P.R. 235 , ¶ 6 (1999) ; Oliver v. Department of Transportation , 1 M.S.P.R. 382 , 386 (1980) (finding that, i n 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 ). ¶10 Finally, the appellant alleges that the administrative judge abused his discretion by not allowing the appellant to reply to the agency’s response to the administrative judge ’s order to show cause. PFR File, Tab 1 at 1 0-12. In that November 18, 2016 Order , the administrative judge directed the appellant to respond to the res judicata/collateral estoppel issue such that the Board and the agency received his submission within 10 calendar days (by November 28). IAF, Tab 3. The administrative judge stated that the agency’s response had to be 7 received within 19 calendar days (by December 7), and that the record would close on that date, unless the agency submitted new evidence or argument just before the close of the record, in which case the appellant could respond by a further filing received within 24 calendar days (by December 12). Id. The record reflects that the agency did file its response to the administrative judge ’s order on December 7, 2016, IAF, Tab 7, and that , therefore , the appellant had 5 days in which to submit a final filing, but did not do so. T he appellant has not explai ned why he did not attempt to make any further filing after the agency filed its response to the administrative judge ’s order, or identified what additional evidence or argument he was unable to submit. Rather, he argues that the administrative judge ’s sc heduling precluded him from pursuing meaningful discovery. PFR File, Tab 1 at 10 -11. However, he has not argued that he was attempting to pursue discovery in this case, despite the administrative judge ’s November 17, 2016 acknowledgment order describing the Board’s discovery procedures. IAF, Tab 2. Administrative judge s have broad authority to govern the proceedings before them. 5 C.F.R. § 1201.41 (b); see Morrison v. Department of the Navy , 122 M.S.P.R. 205 , ¶ 12 (2015) . Under the circumstances, we find that the appellant has not shown that the administrative j udge abused his discretion regarding the scheduling set forth in the show cause order. ¶11 We have considered the remaining matters to which the appellant has referred on review, including his 1996 “Tucker Act District Court case,” PFR File, Tab 1 at 8 -9; the merits of his whistleblower claim, id. at 14-15; and t he 2007 guilty plea of his former fourth -level supervisor , id. at 15 -16, but find that none of these matters has any bearing on the propriety of the initial decision here under review. ¶12 Accordingly, we affirm the initial decision. 8 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 see king such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Pleas e read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for 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 w hich 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 ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in sec uring pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants befor e the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option app lies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a di sposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 10 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for rev iew to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhan cement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 11 disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competen t 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 judic ial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Pract ice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono rep resentation for Merit Systems Protection Board appellants before the 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 cou rt 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: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	STUSSY_DIETER_SF_1221_17_0095_W_1_FINAL_ORDER_2045051.pdf	2023-06-28	null	SF-1221	NP
2,979	https://www.mspb.gov/decisions/nonprecedential/WASHINGTON_FREDRIC_E_AT_0752_17_0365_I_1_FINAL_ORDER_2045094.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD FREDRIC E. WASHINGTO N, Appellant, v. DEPARTMENT OF HOUSIN G AND URBAN DEVELOPMENT, Agency. DOCKET NUMBER AT-0752 -17-0365 -I-1 DATE: June 28, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Antonio F. Gaines , Atlanta, Georgia, for the appellant. Jeffrey J. Burns , Esquire, 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 dismissed his removal appeal for failure to prosecute . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 erroneo us interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or i nvolved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Co de of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis unde r section 1201.115 for granting 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 ¶2 On March 27, 2017, t he appellant filed a Board appeal challenging his removal from his GS -13 Management Analyst position . Initial Appeal File (IAF), Tab 1. On June 6, 2017, the agency filed a motion to compel discovery, alleging that the appellant had failed to fully respond to its written discovery requests. IAF, Tab 8 at 13. The appellant filed a response to the motion. IAF, Tab 10. By order dated July 3, 2017, the administrative judge granted the motion to compel and ordered the appellant to provide full substantive responses to certain agency discovery requests by July 19, 2017. IAF, Tab 11 at 2. The administrative judge warned the appellant that failur e to comply with his order could result in the imposition of sanctions, including dismissal of the appeal. Id. at 3. ¶3 On July 24, 2017, the agency filed a motion to dismiss the appeal, alleging that the appellant had failed to comply with the administrativ e judge ’s July 3, 2017 Order . IAF, Tab 14. On August 11, 2017, the administrative judge issued a show cause order directing the appellant to respond to the agency’s motion to dismiss by August 18, 2017 , and to show cause why the appeal should not be 3 dism issed for failure to prosecute. IAF, Tab 16. In his order, t he administrative judge warned the appellant that failure to comply with his order would result in sanctions under 5 C.F.R. § 1201.43 , up to and including dismissal of the appeal for failure to prosecute. Id. The appellant did not respond. ¶4 On August 22, 2017, the administrative judge issued an initial decision that dismiss ed the appeal for failure to prosecute, finding that the appellant had failed to exercise basic due diligence in prosecuting his appeal. IAF, Tab 18, Initial Decision (ID) at 1, 3. The appellant has filed a petition for review, and the agency has filed a response in opposition to the petition . Petition fo r Review (PFR) File, Tabs 1, 3. ANALYSIS ¶5 The sanction of dismissal with prejudice may be imposed if a party fails to prosecute or defend an appeal. Leseman v. Department of the Army , 122 M.S.P.R. 139 , ¶ 6 (2015) ; 5 C.F.R. § 1201.43 (b). Such a san ction should be imposed only when a party has failed to exercise basic due diligence in complying with Board orders, or has exhibited negligence or bad faith in its efforts to comply. Leseman , 122 M.S.P.R. 139 , ¶ 6. Repeated failure to respond to multiple Board orders can reflect a failure to exercise basic due diligence. Williams v. U.S. Postal Service , 116 M.S.P.R. 377 , ¶ 9 (2011) . Absent an abuse of discretion, the Board will not reverse an administrative judge’s determination regarding sanctions. Leseman , 122 M.S.P.R. 139, ¶ 6. ¶6 On review, the appellant asserts that he did not respond to the agency’s discovery requests because he was unable to obtain legal counsel. PFR File, Tab 1 at 13. The Board has held , however, that an appellant’s difficulty in obtaining a representative do es not excuse his failure to prosecute his appeal by not complying with the Board’s orders. Murdock v. Government Printing Office , 38 M. S.P.R. 297, 299 (1988) . Moreover, even if difficulty in obtaining a representative were a valid excuse for the appellant’s failure to respond to the 4 agency’s discovery requests, as directed by the administrative judge, such an excuse is inapplicable here because the appellant has been represented by a union representative throughout these proceedings. IAF, Tab 1 at 3, Tab 19. ¶7 The appellant further argues on review that he responded to the agency’s motion to dismiss via an email that he sent to the adminis trative judge and copied to agency counsel. PFR File, Tab 1 at 13. In support of this argument, the appellant cites to “Exhibit 3 .” Id. The petition for review does not include an Exhibit 3 , however, and the record does not contain any evidence that the appellant responded to the motion to dismiss . ¶8 Under these circumstances, we find that the appellant has not shown good cause for his failure to comply with the administrative judge’s orders and that he failed to exercise due diligence in the procee dings below. Therefore, we find no abuse of discretion in the administrative judge’s decision to impose sanctions under 5 C.F.R. § 1201.43 (b). See Williams , 116 M.S.P.R. 377, ¶¶ 9 -12 (finding that dismissal for failure to prosecute was appropriate when the appellant failed to respond to multiple Board orders). Accordingly, we affirm the initial decision dismissing the appeal for failure to prosecute. NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is mos t appropriate in any matter. 5 jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prote ction Board appellants before the Federal Circuit. The 6 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in t his case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator /CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 7 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail , the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option app lies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 appea ls must receive your 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law b y the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appea ls for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protect ion Board appellants before the 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 th eir respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	WASHINGTON_FREDRIC_E_AT_0752_17_0365_I_1_FINAL_ORDER_2045094.pdf	2023-06-28	null	AT-0752	NP
2,980	https://www.mspb.gov/decisions/nonprecedential/GUZMAN_GLANDY_DA_0752_16_0434_I_1_FINAL_ORDER_2044422.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD GLANDY GUZMAN, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER DA-0752 -16-0434 -I-1 DATE: June 27, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Glandy Guzman , San Antonio , Texas, pro se. Douglas Mark Livingston , Esquire, Houston, 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 sustained her removal . On petition for review , the appellant asserts that she proved her race and sex discrimination claims and that the agency did not inform her of her right to file an equal employment opportun ity (EEO) complaint . 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 regulat ion or the erroneous application of the law to the facts of the case; the administrative judge ’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner ’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201 .115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the pet ition for review. Therefore, we DENY the petition for review . Except as expressly MODIFIED to apply the Board’s decision in Pridgen v. Office of Management and Budget , 2022 MSPB 31 , to the appellant’s allegations of discrimination, we AFFIRM the initial decision . ¶2 Applying the standard set forth in cases such as Savage v. Department of the Army , 122 M.S.P.R. 612 (2015), the administrative judge found that the appellant failed to establi sh that her race and sex were motivating factors in the agency’s removal action. Initial Appeal File (IAF), Tab 12, Initial Decision at 7-11. The appellant has shown no error in the se findings , with which we agree .2 We therefore need not analyze whether the appellant could prove that 2 The appellant provides additional information on review about herself and a comparison employ ee. P etition for Review File, Tab 1 at 4. Under 5 C.F.R. § 1201.115 (d), 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 closed despite the party’s due diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). The appellant has not shown that this information was unavailable before the record closed below despite her due diligence. Therefore, the Board need not consider it. However, even if we were to consider the statements that the appellant makes in her petition for review, it would not change the administrative 3 discrimination was a but -for cause of the action, as that standard is a higher burden than motivating factor. Pridgen , 2022 MSPB 31 , ¶¶ 20-22, 48; Desjardin v. U.S. Postal Service , 2023 MSPB 6 , ¶ 31. To the extent that the appellant is asserting that the agency’s decision notice did not inform her of her right to file an EEO complaint, the record reflects otherwise. See IAF, Tab 4 at 10-11. 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 fina l decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the right s described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully f ollow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. judge’s proper conclusion that the appellant and the comparison employee were not similarly situated. 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 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guid e for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prote ction Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 5 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision bef ore you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling c ondition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can b e found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision be fore you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If 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 w histleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 sta tutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently al lows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 f or an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 th e link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	GUZMAN_GLANDY_DA_0752_16_0434_I_1_FINAL_ORDER_2044422.pdf	2023-06-27	null	DA-0752	NP
2,981	https://www.mspb.gov/decisions/nonprecedential/SHU_THOMAS_K_NY_0752_10_0190_I_4_FINAL_ORDER_2044489.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD THOMAS K. SHU, Appellant, v. DEPARTMENT OF THE TR EASURY, Agency. DOCKET NUMBER NY-0752 -10-0190 -I-4 DATE: June 27, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Thomas K. Shu , New York, New York, pro se. Alison K. Sablick , Esquire, New York, New York, 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 . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision 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 an y future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the out come of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting 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 ¶2 The appellant was formerly employed by the agency as an Internal Revenue Agent in the Tax Exempt and Government Entities Division of the Internal Revenue Service . Shu v. Department of the Treasury , MSPB Docket No. NY- 0752 -10-0190 -I-1, Initial Appeal File (I -1 IAF), Tab 5, S ubtab 4(b). Effective April 16, 2010, the agency removed him , pursuant to chapter 75 of Title 5, for unacceptable performance based on 22 specifications . Id., Subtab s 4(c), (f). ¶3 The appellant’s job performance was evaluated based on his performance in five critical job eleme nts (CJE), which included: (1) Employee Satisf action -Employee C ontribution; (2) Custome r S atisfaction -Knowledge; (3) Customer Satisfaction -Application; (4) Business Results -Quality; and (5) Business Results -Efficiency. I-1 IAF, Tab 10 at 2. Each CJE cont ained three performance aspects. Id. A rating of unacceptable for a CJE was based on the appellant failing two or more performance aspects within that CJE. Id. Specifications 1 -7 in the agency’s proposal notice set forth examples of the appellant’s una cceptable performance regarding CJ E No. 2 (Customer Satisfaction -Knowledge). I-1 IAF, Tab 5, S ubtab 4(f) at 1 -6. Specifications 8 -13 set forth examples of the appellant’s unacceptable performance regarding CJ E 3 No. 3 (Customer Satisfaction -Application). Id. at 6-9. Specifications 14 -16 set forth examples of the appellant’s unacceptable performance regard ing CJE No. 4 (Business Results -Quality). Id. at 9-11. Specifications 17 -22 set forth examples of the appel lant’s unacceptable performance in CJE No. 5 (Business Results -Efficiency). Id. at 11 -14. ¶4 After holding a hearing, the administrative judge issued an initial decision , affirming the appellant’s removal. Shu v. Department of the Treasury , MSPB Docket No. NY-0752 -10-0190 -I-4, Appeal File , Tab 7, Initial Decision (ID). He found that the agency proved by preponderant evidence that the appellant’s performance was unacceptable in CJE No. 3, Customer Satisf action -Application based on the appellant ’s failure to meet performa nce aspects 3B and 3C. ID at 43-44. The administrative judge sustained specifications 8 -10, which established that the appellant’s performance was deficient in performan ce aspect 3B (Customer Relations) because he failed to provide information to customers that was complete, understan dable, and presented in a logical manner, and his supervisor received complaints from tax payers that he made s trange and confusing statements, and treated them in a disrespectful and unprofessional manner. ID at 24 -27. ¶5 The administrative judge also sust ained specifications 12 -13,2 which established that the appellant’s performance was deficient in performance aspect 3C (Written Communication) because he failed to prepare written w ork that was sufficiently detailed, easy to follow, and clearly reflected t asks taken when he cited to a revenue ruling that did not appear applicable to the taxpayer without providing any explanation and failed to include a description of his work activitie s in the case chronology record, despite charging time to a case. ID at 29-32. 2 The administrative judge sustained specification 13 in part, finding that the agency’s charge that a fax was missing from one of the appellant’s case files did not evidence a failure to meet any of the standards outlined in performan ce aspect 3C. ID at 31 -32. 4 ¶6 The administrative judge found that the agency’s standards provided for an accurate and reasonable measurement of the appellant’s performance. ID at 26, 31. The administrative judge further found that the penalty of removal was reasonable and prom oted the efficiency of the service. ID at 44, 47 -50. Finally, he found that the appellant failed to prove his affirmative defense of denial of reasonable accommodation because the record refle cted that the agency granted the appellant’s requests for acco mmodation and, in any event, the appellant failed to show that any of the sustained instances of unacceptable performance were a direct result of his disabilities. ID at 44-47. ¶7 The appellant has filed a petition for review. Shu v. Department of the Treas ury, MSPB Docket No. NY -0752 -10-0190 -I-4, Petition for Review (I-4 PFR) File, Tab 1. The agency has opposed the appellant’s petition. I-4 PFR File, Tab 3. The appellant has filed a reply . I-4 PFR File, Tab 4. DISCUSSION OF ARGUME NTS ON REVIEW ¶8 A petitio n for review must contain sufficient specificity for the Board to ascertain whether there is a serious evidentiary challenge justifying a complete review of the record. Tines v. Department of the Air Force , 56 M.S.P.R. 90 , 92 (1992). Under the Board’s regulations, a petition for review must identify specific evidence in the record demonstrating any alleged erroneous findings of material fact and explain why the challenged factual determinations are incorrect. 5 C.F.R. § 1201.115 (a). ¶9 Although the appellant was represented below, I -1 IAF, Tab 1, he has filed his petiti on for review pro se. Pro se filings are to be construed liberally. Harper v. Office of Personnel Management , 116 M.S.P.R. 309 , ¶ 9 (2011). However, even with a liberal reading of the appellant’s petition for review, we are unable to discern any specific challenges to the administrative judge’s findings concerning the agency’ s proof of its charge of unacceptable performance or th e appellant’s failure to prove his affirmative defense . Accordingly, we will not undertake a 5 full review of the record. See, e.g., Baney v. Department of Justice , 109 M.S.P.R. 242, ¶ 7 (2008); Tines , 56 M.S.P.R. at 92. ¶10 However, we will address the appellant’s arguments concerning procedural and adjudicatory error. First , the appellant contests the overall length of the case. I-4 PFR File, Tab 1 at 3, 5, 24. He contends that the administrative judge improperly determined that he was not competent to prosecute his case and opened and closed the case to intimidate him. Id. at 2, 4, 9, 17, 23. Such arguments are unavailing. T he record reflects that the appeal was dismissed without prejudice on two occasions based on concerns raised by the appellant’s counsel concerning the appellant’s mental condition.3 I-1 IAF, Tabs 27, 29; Shu v. Department of the Treasury , MSPB Docket No. NY -0752 -10-0190 -I-2, Appeal File, Tabs 4-5. An administrative judge has wide discretion to dismiss an appeal without prejudice in the interests of fairness, due process, and administrative efficiency, and may order such a dismissal at the request of one or b oth parties, or to avoid a lengthy or indefinite continuance. Thomas v. Department of the Treasury , 115 M.S.P.R. 224 , ¶ 7 (2010). We find that the appellant’s assertions on review fail to demonstrate that the administrative judge abus ed that considerable discretion. Rather, t he record supports the administrative judge’s reasons for dismissing the appeal without prejudice.4 3 Although the appellant contends that his attorney did not inform the administrative judge of concerns regarding the appellant’s competency, I -4 PFR File, Tab 1 at 2, 17, 23, the record includes correspondence from the appellan t’s attorney indicating as much, I -1 IAF, Tab 27. 4 The appeal also was previously dismissed without prejudice on June 16, 2016 , because the parties agreed to engage in settlement discussions after it was discovered that a portion of testimony had been lost due to technical difficulties and woul d potentially need to be retaken. Shu v. Department of the Treasury , MSPB Docket No. NY-0752 - 10-0190 -I-3, Appeal File, Tab 27. On petition for review, the Board found that the administrative judge did not abuse his discretion in dismissing the appeal without prejudice. Shu v. Department of the Treasury , MSPB Docket No. NY -0752 -10-0190 - I-3, Final Order, ¶¶ 2, 4 (Sept. 15, 2016). 6 ¶11 Next , the appellant contends that the judicial process was “nothing but acting for the defendants.” I -4 PFR File, Tab 1 at 26. He also contends that the administrative judge was the alter ego of his former supervisor, among others, and acted to shield her. Id. at 5, 13 -14, 23 -25. To the extent the appellant is arguing that the administrative judge was biased against him, we find that his bare ass ertions do not establish a deep -seated antag onism toward him that would make f air judgment impossible and do not over come the presumption of honesty and integrity accorded to administrative judges. See Bieber v. Department of the Army , 287 F.3d 1358 , 1362 -63 (F ed. Cir. 2002); Oliver v. Department of Transportation , 1 M.S.P.R. 382 , 386 (1980). The appellant also contends that the administrative judge’s eff orts to encourage settlement were improper and protests that the proposed settlement amount remained unchanged over the course of 6 years. I -4 PFR File, Tab 1 at 24, 26 -27. However, there is nothing improper in an administrative judge encouraging the par ties to enter into a settlement agreement. See Bell v. Department of the Army , 78 M.S.P.R. 685 , ¶ 6 (1998); Busen v. Office of Per sonnel Management , 49 M.S.P.R. 37 , 42-43 (1991). ¶12 Finally, we reject the appellant’s contentions on review that he was denied a hearing and/or certain witnesses. Regarding the appellant’s apparent contention that he was denied a hearing, I -4 PFR File, Tab 1 at 16, 26, the record reflects that testimony was heard on January 6, 2011 , and April 17, 2014. I -1 IAF, Tab 29; Shu v. Department o f the Treasury , MSPB Docket No. NY -0752 -10- 0190 -I-3, Appeal File, Tab 15. The appellant appears to argue that the administrative judge denied his request to call two of his requested witnesses. I -4 PFR File, Tab 1 at 10, 12, 25 . However, the record refl ects that one of those witnesses, who is a doctor, testified at the hearing and the administrative judge considered this doctor’s testimony in making his findings. ID at 46. Further, the appellant has not identified, and we are unable to locate in the re cord , any request to call the other individual as a witness. Finally, we reject the appellant’s contention that the initial decision, which contains 55 pages of detailed analysis, 7 is incomplete and fails to adequately set forth the reasoning behind the administrative judge’s conclusions. I -4 PFR File, Tab 1 at 27, 30. ¶13 Accordingly, we conclude that the appellant’s arguments do not provide a basis for disturbing the initial decision. NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federa l Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visi t our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and t hat such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 9 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the li nk below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discriminat ion claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this dec ision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D .C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Was hington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 10 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 th e Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide f or Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 6 The original statutory provision that provided for judicial review of certain whistleblower clai ms by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certa in whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SHU_THOMAS_K_NY_0752_10_0190_I_4_FINAL_ORDER_2044489.pdf	2023-06-27	null	NY-0752	NP
2,982	https://www.mspb.gov/decisions/nonprecedential/SAUNDERS_DENISE_AT_3443_17_0289_I_1_FINAL_ORDER_2044503.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DENISE SAUNDERS, Appellant, v. DEPARTMENT OF THE TR EASURY, Agency. DOCKET NUMBER AT-3443 -17-0289 -I-1 DATE: June 27, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Denise Saunders , Lawrenceville, Georgia, pro se. Andrew M. Greene , 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 rev iew of the initial decision, which dismissed her appeal alleging a reduction in grade or pay for lack of jurisdiction . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, w as not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conc lude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petiti on for review. Except as expressly MODIFIED to clarify and augment the analysis of the jurisdictional issue, we AFFIRM the initial decision . BACKGROUND ¶2 In 2012, the appellant received a temporary promotion from her permanently assigned position as a Lead Tax Examining Technician , GS-8, step 7, with an adjusted basic salary of $53,865 , to a Supervisory Tax Examining Assistant position, Internal Revenue Service (IR) Payband level 8, with an adjusted basic salary of $58,174 . Initial Appeal File (IAF), Tab 6 at 8. The agency extended her temporary promotion several times and gave her seve ral performance -based salary increases (PBIs) , resulting in an adjusted basic salary of $63,454 as of January 11, 2015 . Id. at 9-14. On December 27, 2015, she received another temporary promotion, i.e., a “stacked promotion, ” to a Department Manager posi tion in the IR Payband with an a djusted basic salary of $68,530 .2 Id. at 15. On January 10, 2016 , while the appellant was still on her 2 According to the agency’s IRS Payband System Pay Administrative Guidance (IR Guidance ), a “stacked promotion occurs when an employee already on a temporary promotion is placed, without a break in s ervice, on a second temporary promotion to a position with a higher maximum rate than the first temporary promotion, prior to the not-to-exceed (NTE) date of the first temporary promotion.” IAF, Tab 6 at 20, 29. 3 stacked promotion, the agency awarded her a 7.7% PBI, which increased her adjusted basic pay to $73,985 . Id. at 16. O n April 17, 2016, the appellant’s stacked temporary promotion ended, and the agency administratively returned her to her permanently assigned position as a Lead Tax Examining Technician , GS -8, step 8, with an adjusted basic pay of $57,177 , before immediate ly placing her on another temporary promotion to the position of Supe rvisory Tax Examining Assistant, IR-08, with an adjusted basic pay of $63,608 .3 Id. at 17 -19. On August 7, 2016, the agency permanently promoted her to the position of Supervisory Tax Examining Assistant , IR-08. Id. at 46. ¶3 In February 2017, t he appellant appealed an alleged reduction in pay or grade to the Board , alleging that she suffered a loss of $6,000 in annual salary due to a “pay setting err or” when, upon the termination of her stacked temporary promotion to a Department Manager position, the agency set her pay without properly accounting for the 7.7% PBI she received while serving as Department Manager.4 IAF, Tab 1 at 3, 5. In an acknowled gment order, t he administrative judge notified the appellant that the Board may not have jurisdiction over her appeal of a pay -setting error and ordered her to file evidence and argument amounting to a nonfrivolous allegation of jurisdiction . IAF, Tab 2. In response, the appellant explained that, upon further research, she realized that the $6,000 loss in salary she was appealing was not due to a pay -setting error, but occurred because of agency rules governing pay setting upon the termination of stacked promotions. IAF, Tab 8 at 4. She argued that the agency was negligent in failing 3 The IR Guidance provides that an employee on a stacked promotion who is being returned to a temporary promotion that she previously held in a series of temporary promotions is first returned to her permanent position of record and then promoted to the temporary promotion position. Id. at 29 -30. 4 It appears that the appellant’s February 2017 appeal of the agency’s April 2016 action may be untimely filed. See 5 C.F.R. § 1201.22 (b). I n light of our fi nding that the Board does not have jurisdiction over this appeal, however, we need not reach the timeliness issue. See Alston v. Social Security Administration , 95 M.S.P.R. 252 , ¶ 29 (2003) , aff’d , 134 F. App’x 440 (Fed. Cir. 2005) . 4 to inform her that she could lose money by taking the temporary promotio n, that she did not agree to such terms, and that the agency’s action was unfair . Id. at 4-5. She further asserted that the agency has since changed its policy. Id. at 5. The agency moved to dismiss the appeal for lack of jurisdiction, arguing that the appellant did not suffer an appealable reduction in pay. IAF, Tabs 3, 6, 9. ¶4 Without holding the appellant’s requested hearing, the administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID). The appellant has filed a petition for review of the initial decision, and the agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 The Board does not have jurisdiction over all matters involving Federal employees that are alleged to be unfair or incorrect ; rather, it is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985); Johnson v. U. S. Postal Service , 67 M.S.P.R. 573 , 577 (1995). Under chapter 75 of Title 5, the Board has jurisdiction to review specified adverse action s taken against covered employees, including reductions in grade or pay. See 5 U.S.C. § 7512 (3)-(4). If the employee makes a nonfrivolous allegation of jurisdiction, i.e., an allegation that, if proven, could establish the Board’s jurisdiction, she is entitled to a hearing at which she must prove jurisdiction by a preponderance of the evidence.5 Garcia v . Department of Homeland Security , 437 F.3d 1322 , 1344 (Fed . Cir. 2006) (en banc). ¶6 As noted above, the appellant alleged that the agency unfai rly set her pay upon the termination of her temporary promotion by failing to properly credit her with the 7.7% PBI she received while serving on a stacked temporary detail as a 5 A preponderance of the evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficie nt to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q). 5 Department Mana ger, which caused a $ 6,000 loss in annual salary. IAF, Tabs 1, 8. In the initial decision, the administrative judge found that the appellant’s dispute with the method used by the agency to calculate her pay following the termination of her stacked promotion did not constitute an appealable reduction in pay under 5 U.S.C. § 7512 (4). ID at 3. On review, the appellant argues again that the agency failed to inform her that taking the temporary detail would harm her financially, she is entitled to the 7.7% PB I that she earned while she was on the Department Manager detail, the agency made mistakes in processing the paperwork, and the agency’s action is unfair. PFR File, Tab 1 at 3 -5. ¶7 In the context of a reduction in pay under chapter 75, “pay” means “the ra te of basic pay fixed by law or administrative action for the position held by an employee .” 5 U.S.C. § 7511 (a)(4 ). The right to appeal a reduction in pay has been narrowly construed and requires that the appellant show a demonstrable loss, such as an actual reduction in pay, to establish jurisdiction. See Chaney v. Veterans Administration , 906 F.2d 697 , 698 (Fed. Cir. 1990) (stating that an appealable reduction in pay occurs only when there is an “ascert ainable lowering” of an employee’ s pay at the time of the action). “Grade” in this context means “a level of classification under a position classification system. ” 5 U.S.C. § 7511 (a)(3). Here, the appellant has not alleged, and the record does not show, that the agency reduced her rate of pay or grade in her permanent ly assigned position following her temporary promotions.6 IAF, Tabs 1, 8; PFR File, Tab 1. Absent any loss in grade or actual reduction in pay, the Board lacks jurisdiction 6 As noted above, prior to her temporary promotions, the agency employed the appellant as a L ead Tax Examining Technician, GS -8, step 7, with an adjusted basic salary of $53,865 . IAF, Tab 6 at 8. Upon the termination of her stacked promotion on April 17, 2016, the agency administratively returned her to her permanently assigned position as a Lead Tax Examining Technician, GS -8, step 8, with a n adjusted basic pay of $57,177, which included the within -grade increase for which she became eligible on July 1 2, 2015, and the 1% General Schedule increase that became effective in January 2016. Id. at 17-18. 6 over the appellant’s challenge to her salary following the termination of her tempor ary promotions. See 5 U.S.C. § 7512 (3)-(4). ¶8 In addition , the Board lacks jurisdiction to consider an “[a]ction that terminates a temporary or term promotion and returns the employee to the position from which temporarily promoted, or to a different position of equivalent grade and pay, if the agency informed the employee that it was to be of limited duration. ” 5 C.F.R. § 752. 401(b)(12) ; see 5 C.F.R. § 335.102 (f) (stating that an agency may make time -limited promotions but must give the employee advance written notice of the conditions of the temporary promotion, including, among other things, that she may be returned to her former position at any time and that such return may not be appealed to the Board under chapter 75). Here, the record reflects that , following the termination of the appellant’s stacked promotion, the agency administratively returned her to her permanently assigned position at the same grade level she previously held without any loss in pay . IAF, Tab 6 at 8, 17. While the appellant alleges that the agency failed to inform her of the financial effect of the temporary promotions, she does not allege that the agency failed to inform her that her promotions were time limited , and the Standard Form 50s documenting her temporary promotions clearly indicate that they were temporary . Id. at 8, 10, 12, 14 -15. Therefore, we find that the Board lacks jurisdiction to consider the agency’s action returning the appellant to her permanently assigned position at the same grade level previously held following the termination of her stacked promotion. See 5 C.F.R. §§ 335.102 (f), 752.401(b)(12). ¶9 Lastly, because the Board lacks jurisdiction over this appeal, it cannot consider the appellant ’s claims that she was harmed by the agency’s handling of her temporary promotions . See Daneshpayeh v. Department of the Air Force , 57 M.S.P.R. 672 , 682 n. 9 (1993) ( stating that the Board lacks jurisdiction over allegations of harmful error absent an ot herwise appealable action), aff’d, 17 F.3d 1444 (Fed. Cir. 1994) (Table) . 7 NOTICE OF APPEAL RIG HTS7 The in itial 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 par ticular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 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 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is t he court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Fe deral Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any att orney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is ap pealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriat e U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district co urt no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 9 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000 e-5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EE OC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC n o later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street , N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 10 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for revie w “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. Cou rt of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018 , permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SAUNDERS_DENISE_AT_3443_17_0289_I_1_FINAL_ORDER_2044503.pdf	2023-06-27	null	AT-3443	NP
2,983	https://www.mspb.gov/decisions/nonprecedential/HELMAN_SHARON_DE_0707_15_0091_M_1_FINAL_ORDER_2044520.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SHARON HELMAN, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DE-0707 -15-0091 -M-1 DATE: June 27, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Debra L. Roth , Esquire, and James P. Garay Heelan , Esquire, Washington, D.C., for the appellant. Bradley Flippin , Nashville, Tennessee, for the agency. Hansel Cordeiro , Esquire, and W. Iris Barber , Washington, D.C., for the agency. Jeffrey T. Reeder , Esquire, Dallas, Texas, for the agency. Sean A. Safdi , Denver, Colorado, 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 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 FINAL ORDER ¶1 This case is before the Board on remand from the U.S. Court of Appeals for the Federal Circuit for review of the administrative judge’s decision affirming the appellant’s removal. For the reasons discussed below, we AFFIRM the decision of the administrative judge. BACKGROUND ¶2 The appellant was employed as the Dire ctor of the Phoenix Veterans Affairs (VA) Health Care System. On May 30, 2014, the agency’s Deputy Chief of Staff notified the appellant in writing of a proposal to remove her based on a charge of failure to provide oversight. Helman v. Department of Vet erans Affairs , MSPB Docket No. DE-0707 -15-0091 -J-1, Initial Appeal File (IAF), Tab 18 at 29 -31. However, no final action was taken regarding the May 2014 proposed removal, and the agency later rescinded that proposal. Id. at 27. ¶3 The Veterans Access, Choice, and Accountability Act of 2014 (Choice Act), Pub. L. No. 113 -146, 128 Stat. 1754, was signed into law on August 7, 2014. Section 707 of the Choice Act, which was codified at 38 U.S.C. § 713, authorized the Secretary of Veterans Affairs to remove senior executives “if the Secretary determines the performance or misconduct of the individual warrants such removal.” 128 Stat. at 1798. Section 707 provided that actions tak en under its authority could be appealed to the Board, but such appeals had to be filed within 7 days. Id. at 1799. Section 707 required the Board to assign such appeals to an administrative judge, who was required to issue a decision within 21 days. Id. Section 707 provided that the decision of the administrative judge in such an appeal “shall be final and shall not be subject to any further appeal.” Id. The Board issued regulations, effective August 19, 2014, governing the adjudication of appeals un der section 707 of the Choice Act. 5 C.F.R. part 1210. ¶4 On November 10, 2014, Deputy Secretary Sloan Gibson informed the appellant in writing of a pending action to remove her from Federal service based 3 on charges of lack of oversight, conduct unbecoming a senior executive, and failure to report gifts. IAF, Tab 1 at 9 -16. The Deputy Secretary’s notice informed the appellant that the pending action was being taken pursuant to section 707 of the Choice Act, and that she had 5 business days after receipt of the notice to submit a written response. Id. at 12 -13. The appellant, through counsel, responded in writing to the notice on November 17, 2014. Id. at 17 -30. On November 24, 2014, the Deputy Secretary informed the appellant in writing of his decision t o remove her. Id. at 31 -33. ¶5 The appellant filed a Board appeal of her removal on December 1, 2014. IAF, Tab 1. She requested a hearing. Id. at 2. During the processing of her appeal, the appellant raised a claim of harmful procedural error. IAF, Tab 13. At the prehearing conference, the appellant withdrew her hearing request and asked for a decision on the written record. IAF, Tab 66 at 1. On December 22, 2014, the administrative judge issued a decision affirming the appellant’s removal. IAF, Tab 75. He found that the agency failed to prove any of the specifications of lack of oversight, id. at 13 -32, but that it proved both specifications of conduct unbecoming a senior executive, id. at 32 -42, and both specifications of failure to report gifts, id. at 42 -51. He further found that the appellant failed to prove that she was denied due process, id. at 51 -56, or that the agency committed harmful procedural error, id. at 56 -57. Finally, he found that the appellant had not overcome the presumption tha t the penalty of removal was reasonable. Id. at 57-61. ¶6 The appellant filed a motion for an extension of time to file a petition for review of the administrative judge’s decision. IAF, Tab 78. In response, the Clerk of the Board informed the appellant that, because section 707 of the Choice Act made the administrative judge’s decision final and not subject to any further appeal, the Board would not be taking any further action on her appeal. IAF, Tab 79. 4 ¶7 The appellant then sought review before the U.S. Court of Appeals for the Federal Circuit. The court held that the finality language in section 707 of the Choice Act did not prevent it from reviewing constitutional claims. Helman v. Department of Veterans Affairs , 856 F.3d 920 , 926 (Fed. Cir. 2017). The court further held that the finality language in section 707 violated the Appointments Clause by giving Board administrative judges the autho rity to issue final decisions without the possibility of review by the members of the Board. Id. at 928-29. To remedy that violation, the court remanded the case to the Board for it to review the administrative judge’s decision. Id. at 938. ¶8 Shortly afte r the Federal Circuit remanded this appeal to the Board, the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L. No. 115 -41, 131 Stat. 862, was signed into law on June 23, 2017. Section 2 01 of the VA Accountability Act amended 38 U.S.C. § 713 in part to provide that a senior executive who is removed by the Secretary under that section may contest that action through an internal gri evance procedure rather than before the Board, as provided by the provision in effect at the time this appeal was filed. 131 Stat. at 868. Section 201 provides that a grievance decision, or the decision of the Secretary if no grievance is filed, may be subject to judicial review. Id. Section 201 does not provide for Board review of the Secretary’s actions against senior executives. ¶9 On remand from the Federal Circuit, the Board afforded the appellant the opportunity to raise those arguments she could hav e raised in a petition for review. Helman v. Department of Veterans Affairs , MSPB Docket No. DE 0707 - 15-0091 -M-1, Remand File (RF), Tab 2 at 2. In her submission, the appellant argues that the administrative judge erred in rejecting her due process claim and that there is new and material evidence that supports that claim. RF, Tab 8 at 19-30. She also argues that the agency committed harmful procedural error. 5 Id. at 30. Finally, she argues that the penalty of removal was unreasonable.2 Id. at 31 -35. ¶10 In response to the appellant’s submission, the agency first argues that the VA Accountability Act should be applied to the present case and that it deprives the Board of jurisdiction over this appeal. RF, Tab 11 at 7 -11. As to the merits of the appellant ’s arguments, the agency argues that the administrative judge properly rejected the appellant’s due process and harmful procedural error claims, id. at 11 -24, and that the appellant failed to show that the penalty was unreasonable, id. at 24 -27. The agency also submits evidence that was not presented to the administrative judge.3 Id. at 29 -41. ¶11 The appellant has also filed a Notice of New Legal Authority regarding the Federal Circuit’s decision in Rodriguez v. Department of Veterans Af fairs , 8 F.4th 1290 (2021). RF, Tab 16. She argues that Rodriguez should compel the Board to reverse her removal as not in accordance with law. Id. at 4. The agency has f iled a response to the appellant’s submission, arguing that the present case is distinguishable from Rodriguez . RF, Tab 18. ANALYSIS The VA Accountability Act did not deprive the Board of jurisdiction over pending appeals. ¶12 The agency argues that the VA Ac countability Act deprives the Board of jurisdiction to adjudicate the appeal further . RF , Tab 11 at 7 -11. In determining whether a new statutory provision should be given retroactive effect, the Board applies the analytical framework set forth in Landgra f v. USI Film Products , 511 U.S. 244 , 280 (1994). King v. Department of the Air Force , 119 M.S.P.R. 2 The appellant does not challenge the administrative judge’s findings regarding the charges. 3 Because we agree with the agency that the administrative judge correctly decided the appeal on the reco rd before him, we need not consider the agency’s newly submitted evidence. 6 663, ¶ 8 (2013). Under Landgraf , when a case implicates a Federal statute enacted after the events at issue, we must first determine whether Congress explicitly prescribed in the statute that the provision at issue should be applied retroactively. 511 U.S. at 280. If the statute expressly states that the provision is retroactive, then our inquiry ends there. Id. If the statute does not expressly state that the provision is retroactive, then we must determine whether the retroactive application of the statute “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed. ” Id. If so, the provision does not apply retroactively absent clear congressional intent indicating otherwise. Id.4 ¶13 We find that Congress did not expressly prescribe that section 201 of the VA Accountability Act would be retroactive. Congress has the ability to clearly express its intent for a statute to apply retroactively and has done so regarding other statutes. See, e.g. , 38 U.S.C. § 4324 (c) (p roviding that the Board’s jurisdiction to hear appeals under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) exists “without regard as to whether the complaint accrued before, on, or after October 13, 1994”); Lapuh v. Merit S ystems Protection Board , 284 F.3d 1277 , 1281 -82 (Fed. Cir. 2002) (observing that Congress expressly provided for the Board’s retroactive jurisdi ction over claim s brought under USERRA but did not do so with regard to veterans’ preference claims under the Veterans Employment Opportunities Act of 1998 (VEOA)). In this case, however, Congress has not specifically provided for 4 The Federal Circuit adopted a three -part test to examine the issue of whether a change in the law would have an impermissible effect if applied retroactively under Landgraf . See Princess Cruises , Inc. v. United States , 397 F.3d 1358 , 1362 -63 (Fed. Cir. 2005 ). Under that test, the court will c onsider the following factor s: (1) “the nature and extent of the change of the law”; (2) “the degree of connection between the operation of the new rule and a relevant past event”; and (3) “familiar considerations of fair notice, reasonable reliance, and settled expectations.” Id. Because we find that the Landgraf holding directly controls in this appeal, we do not apply the Princess Cruises test. However, even if we did, we would still find that the relevant portion of the VA Accountability Act is not retroactive. See King , 119 M.S.P.R. 663 , ¶ 17 n.3. 7 an effective date of the provisions at issue. See Sayers v. Department of Veterans Affairs , 954 F.3d 1370 , 1380 (Fed. Cir. 2020) (finding that the VA Accountability Act “lacks an unambiguous directive or express command that the statute is to be applied retroactively” (quotation marks and citations omitted) ). ¶14 Having determined that the VA Accountability Act does not expressly state that it is retroactive, we must apply the second part of the Landgraf test to determine retroactivity. See Sayers , 954 F.3d at 1380 -82 (applying Landgraf to examine whether section 202 of the VA Accountability Act had an impermissible retroactive effect because Congress did not express any intent as to whether the Act applied to pre enactment conduct ); Wilson v. Department of Veterans Affairs , 2022 MSPB 7, ¶ 27.5 We find that applying the VA Accountability Act would impair the review rights that the appellant was afforded after the Federal Circuit’s decision in her appeal. See Upshaw v. Consumer Product Safety Commission , 111 M.S.P.R. 236 , ¶ 10 (2009) (finding that new suitability regulations issued by the Office of Personnel Management could not be applied retroact ively to exclude Board jurisdiction) , holding modified on other grounds by Scott v. Office of Personnel Management , 116 M.S.P.R. 356 (2011) . Thus, we conclude that the portion of the VA Accountability Act that provides for a new grievance process 5 In Sayers , the agency removed the appellant pursuant to section 202 of the VA Accountability Act, codifi ed as amended at 38 U.S.C. § 714 . Sayers , 954 F.3d at 1372 . Section 202 authorizes the agency to “remove, demote, or suspend a covered individual ” for inadequate performance or misconduct using an expedited process . 131 Stat. at 869-72; Wilson , 2022 MSPB 7, ¶¶ 11 , 28. Our reviewing court held that section 202 had an impermissible retroactive effect because its lowered substantial evidence standard of proof and elimination of the Board’s authority to mitigate the penalty d etrimentally affected the appellant ’s property right to continued employment and “substantive righ ts to relief from improper removal.” Sayers , 954 F.3d at 1372 n.1, 1374, 1380 ‑81; Wilson , 2022 MSPB 7, ¶¶ 27-28. In so finding , the court did not address whether section 201, the provision at issue here, had an impermissible retroactive effect , and thus, we consider it now. 8 and direct court review is not retroactive.6 See Lapuh , 284 F.3d at 1280 -82 (finding that 5 U.S.C. § 3330a (d)(1) did not retroactively provide for the Board’s jurisdiction over allegations of a denial of veterans’ preference that arose prior to the enactment of VEOA). ¶15 The general presumption against retroactivity does not necessarily apply to provisions that confer or strip jurisdiction. Hamdan v. Rumsfeld , 548 U.S. 557 , 577 (2006); see Landgraf , 511 U.S. at 274 (“We have re gularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed.”). “That does not mean, however, that all ju risdiction -stripping provisions —or even a ll such provisions tha t truly lack retroactive effect —must apply to cases pending at the time of their enactment. ‘[N]ormal rules of construction, including a contextual reading of the statutory language, may dictate otherwise. ’” Hamdan , 548 U.S. at 577 (quoting Lindh v. Murphy , 521 U.S. 320 , 326 (1997)). Here, a contextual reading of section 201 of the VA Accountability Act leads us to conclude that it is intended to apply only to ac tions taken after its enactment and therefore it does not deprive the Board of jurisdiction over appeals , like the instant case , that were pending at the time o f enactment. ¶16 The fact that the VA Accountability Act ref ers only to the ability of an affected senior executive to file a grievance or obtain judicial review and does not refer directly to t he power of the Board provides support for reading the Act as applying only to future actions. See Landgraf , 511 U.S. at 275 n.29 (“Of course, the mere fact that a new rule is procedural does not mean that it applies to every pending case. A new rule concerning the filing of complaints would not govern an action in which the complaint had already been properly filed under t he old 6 Nothing in the VA Accountability Act or elsewhere suggests that it constituted a clarification of an existing law. Cf. Day v. Department of Homeland Security , 119 M.S.P.R. 589 , ¶¶ 10-26 (2013). 9 regime.”).7 We are further persuaded by the fact that the VA Accountability Act does not provide for pending cases in any way. If we were to read the Act as removing the Board’s jurisdiction over pending cases brought under the Choice Act, it woul d not be clear whether and under what conditions the appellant would still have the right to file a grievance or seek judicial review of her removal under the VA Accountability Act. If Congress had intended the post -removal procedures under VA Accountabil ity Act to replace the Board appeals authorized under the Choice Act, even as to pending cases, it would be reasonable to expect that Congress might have specifically provided for such pending appeals. ¶17 Accordingly, we conclude that the VA Accountability Ac t does not deprive the Board of jurisdiction over appeals brought under the Choice Act. The appellant has not established a due process violation or harmful procedural error. ¶18 The appellant’s arguments regarding due process and harmful procedural error8 are based primarily on her assertion that her removal was predetermined and that she therefore did not have a meaningful opportunity to respond to the proposal to remove her. She challenges the administrative judge’s analysis on both factual and legal ground s. For the reasons that follow, we agree with the 7 We do not doubt that Congress could deprive the Board of jurisdiction over pending appeals, if it had expressed clearly its intention to do so. See Hallo well v. Commons , 239 U.S. 506 , 508 -09 (1916) (holding that a statute making decisions of the Secretary of the Interior final and unreviewable req uired dismissal of a legal challenge to one such decision even though the challenge was within the courts’ jurisdiction at the time of filing). Thus, if the VA Accountability Act had contained a separate provision indicating that the Board shall not have jurisdiction over appeals challenging actions under the Choice Act, we would have applied that provision to all pending cases. 8 The appellant does not raise a separate claim of harmful procedural error based on distinct facts. Rather, she argues that the same facts that support her due process claim also establish harmful procedural error. RF, Tab 8 at 30. 10 administrative judge that the appellant has not established a due process violation or harmful procedural error.9 ¶19 The appellant claims that, “[b]efore any investigations into [her] conduct concluded,” Pres ident Obama, Secretary Shinseki, and the Deputy Secretary “all assured Congress and the public that [the appellant] would be removed.” RF, Tab 8 at 21 -22. However, the statements she cites in support of that claim do not establish that any of those indiv iduals made such assurances. Specifically, the appellant cites a May 21, 2014 statement by President Obama in which he stated that anyone found to have falsified or manipulated records “has to be held accountable” but that “we have to let the investigator s do their job and get to the bottom of what happened.” IAF, Tab 36 at 11. The appellant also cites a May 30, 2014 news report quoting Secretary Shinseki as stating that he had initiated the process for the removal of senior leaders at the Phoenix VA med ical center, as well as a statement the same day from President Obama reflecting Shinseki’s statement. IAF, Tab 37 at 39, 41. The appellant also cites a June 30, 2014 statement by President Obama in which he stated that “those responsible for manipulatin g or falsifying records at the VA —and those who tolerated it —are being held accountable” and that “where we find misconduct, it will be punished.” IAF, Tab 42 at 53. We find nothing in those statements reflecting a prejudgment of the appellant’s individual case that would deprive her of a meaningful opportunity to re spond to the charges against her. As to the May 30, 2014 statements by Secretary Shinseki and President Obama, we find that those statements merely reflect the fact that the agency had proposed the removal of 9 The U.S. Court of Appeals for the Federal Circuit’ s and the Boar d’s reasoning set forth herein rests on the decision of the U.S. Supreme Court in Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 538 -39, 546 -48 (1985), which held that a tenured public employee has a constitutionally p rotected property interest in ongoing public employment and that an agency may not deprive such an employee of his property interest without providing him with due process of law, including the right to advance notice of the charges against him, an explana tion of the agency’s evidence, and an opportunity to respond. 11 Phoenix VA officials, including the appellant. IAF, Tab 18 at 29 -31. We find that such factual statements do not violate due process or constitute harmful procedural error. Whenever an agency proposes an employee’s removal, it has made an initial determination that such action is warranted. Having made that initial determination cannot mean, however, that the agency has necessarily prejudged the final outcome10 and that the employee does not have a meaningful opportunity to respond to the proposal. ¶20 We agree with the appellant that the test for wheth er a deciding official has so prejudged a case that his participation constitutes a denial of due process is an objective one. However, we disagree with the appellant’s suggestion that due process requires that a deciding official must not have formed an opinion about the merits of the action. The cases the appellant cites for this proposition involve agency adjudications in which the individual is meant to be completely neutral. See, e.g., Cinderella Career and Finishing Schools , Inc. v. Federal Trade Commission , 425 F.2d 583 , 591 (D.C. Cir. 1970) (“The test for disqualification has been succinctly stated as being whether ‘a disinterested observ er may conclude that (the agency) has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it.’”) (quoting Gilligan, Will and Co. v. Securities and Exchange Commission , 267 F.2d 461 , 469 (2nd Cir. 1959)). The deciding official in a personnel action, on the other hand, need not be a completely neutral third party. For example, the deciding official may b e the same person who proposed the action. DeSarno v. Department of Commerce , 761 F.2d 657 , 660 (Fed. Cir. 1985). “The law does not presume tha t a supervisor who proposes to remove an employee is incapable of changing his or her mind upon hearing the employee’s side of the case.” Id. Due process is satisfied as long as the record demonstrates that the deciding official “carefully considered 10 The outcome of the specific proposed action referenced in the May 30, 2014 statements was not the appellant’s removal but rather the rescission of the proposal. IAF, Tab 18 at 27. 12 the proffered evidence and conducted a full, impartial, and independent review of the charges at the pre -termination stage.” Id. Additionally, the Board has held that, even when a deciding official was initially predisposed to decide against the appellant, the requirements of due process are satisfied when it is clear from the record that the deciding official was willing to change his mind and considered the record as a whole. Teichmann v. Department of the Army , 34 M.S.P.R. 447 , 451-52 (1987), aff’d , 854 F.2d 1327 (Fed. Cir. 1988) (Table). ¶21 Here, the appellant argues that she was denied due process not necessarily because of anything the deciding official himself said or did, but rather because of pressure from individuals both inside and outside the agency, including members of Congress and the President, to remove the appellant. The administrative judge found that the agency was likely under political pressure to remove the appellant but that the Deputy Secretary nevertheless approached his role in good faith and considered the record as a whole. IAF, Tab 75 at 53 -54. We agree and therefore find that the agency did not violate the appellant’s due process rights. ¶22 The appellant raises several challenges to the administrative judge’s findings regarding her due process claim. First, she argue s that the Deputy Secretary ’s denial that he was not biased is not credible. RF, Tab 8 at 22. However, having reviewed the Deputy Secretary ’s sworn statement and the contrary evidence cited by the appellant, we agree with the administrative judge that the Deputy Secretary credibly explained how he considered the record as a whole and reached his decision to remove the appellant independent of any political pressure.11 11 The appel lant cites the Deputy Secretary’s failure to deny specifically that he felt pressure from President Obama to remove the appellant. RF, Tab 8 at 22. However, we find that even if the Deputy Secretary felt a certain amount of pressure from the President, t he mere existence of that pressure does not establish that the appellant was denied due process on the facts of this case showing that the Deputy Secretary approached his role in good faith and considered the record as a whole. 13 ¶23 Next, the appellant argues that the agency violated her due process rights by replacing t he deciding official assigned to her May 30, 2014 proposed removal. She asserts that the original deciding official had decided not to remove her. RF, Tab 8 at 24 -26. She cites evidence in the form of 2016 testimony from the original deciding official i n the Board appeal of another agency employee whose removal was originally proposed at the same time as the appellant’s. Id. In the newly submitted testimony, the original deciding official testified that he took no action on the proposed removal regardi ng the other employee because he had requested supporting documentation for the interim Inspector General report on which the proposal was based, but he had not received that documentation. Id. at 54-56. He later learned that the Deputy Secretary had rem oved the employee. Id. at 56. ¶24 Even if we agreed with the appellant that this evidence is “new,” i.e., it was unavailable before the close of the record below,12 we find that it is not material. See 5 C.F.R. § 1201.115 (d). 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 Administrati on, 3 M.S.P.R. 345 , 349 (1980). An agency commits procedural error when it replaces a properly authorized deciding official who has already consider ed an employee’s reply to a proposed adverse action and arrived at a decision. Cheney v. Department of Justice , 720 F.2d 1280 , 1281, 1285 (Fed. Cir. 1983); Shiflett v. Department of Justice , 98 M.S.P.R. 289, ¶ 9 (2005) . Although the original deciding official expressed concerns about the evidence before him, 12 The appellant argues that the evidence is per se “new” because the testimony in question was taken after the close of the record before the administrative judge. RF, Tab 8 at 25. However, to constitute new and material evidence, the information contained in the documents, not jus t 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); 5 C.F.R. § 1201.115 (d). Thus, the date of the testimony itself is not determinative. 14 he never testified that he had made a final determination that removal of either the appellant or the other employee was not warranted. Thus, even if the testimon y in another case could be applied to the appellant’s case, the newly submitted evidence does not establish that the decision to replace the original deciding official with the Deputy Secretary constituted procedural error or a due process violation. See Helms v. Department of the Army , 114 M.S.P.R. 447 , ¶ 7 (2010) . ¶25 The appellant further argues that the administrative judge failed to c onsider the fact that the Deputy Secretary proposed and sustained charges and specifications against her that were not proven as evidence that the result in her case was predetermined. RF, Tab 8 at 26 -28. However, the administrative judge explicitly cons idered and rejected that argument, finding that the defeat of certain charges and specifications was not “particularly probative” of whether the deciding official was fair and impartial. IAF, Tab 75 at 56. We agree with the administrative judge. Althoug h the agency failed to prove certain charges and specifications, we are not persuaded that the agency brought those charges and specifications in bad faith or without a reasonable basis.13 ¶26 Finally, the appellant argues that the administrative judge misappli ed its precedent in Blake v. Department of Justice , 81 M.S.P.R. 394 (1999). RF, Tab 8 at 28 -30. Specifically, she cites the follo wing language from the Board’s decision in Blake : Proven, unveiled threats from someone wholly outside the chain of accountability within the Executive Branch, who is arguably in a position to adversely affect the careers of decision -makers or the welfare of the agency involved for reasons antithetical to the assurance and administration of merit systems principles, will necessarily be subjected to the closest scrutiny. 13 In the case cited by the appellant in support of this argument, the charges against the employee were “fabrications” that the officials involved in the removal knew to be false. See Bettio v. Village of Northfield , 775 F. Supp. 1545, 1564 -65 (N.D. Ohio 1991). The appellant has made no similar showing here. 15 81 M.S.P.R. 394, ¶ 37 n.11. However, the close scrutiny suggested by the Board in Blake does not mean that a due process violation occurs whenever a member of Congress or other official exerts pressure on the agency to take a particular action. In Blake itself, for example, the Board held that, even if a Congressman had communicated that the agency would “have trouble” with him if i t failed to impose recommended discipline, there was no procedural error when the deciding official provided an unwavering statement denying that he was influenced by the Congressman’s threat and there was no other evidence in the record to show such influ ence. Id., ¶¶ 36-37. Here, there were multiple statements from members of Congress and other officials calling for the appellant’s removal. However, the Deputy Secretary credibly denied that he was influenced by those statements and the record as a whol e does not contradict his statement. We therefore conclude that the administrative judge’s decision was consistent with Blake .14 The Federal Circuit’s decision in Rodriguez does not compel a different outcome. ¶27 The appellant argues that Rodriguez compels th e Board to reverse her removal. RF, Tab 16. Although the appellant’s submission regarding Rodriguez was filed after the close of the record, we will consider both the appellant’s submission and the agency’s response because they deal with issues that are relevant to this appeal. Brown v. Department of Health and Human Services , 42 M.S.P.R. 291, 295 n.4 (1989). The Federal Circuit’s precedent in Rodriguez applies to all pending cases, regardless of when the events at issue took place. Semenov v. Department of Veterans Affairs , 2023 MSPB 16, ¶ 22. Nevertheless, 14 The other case cited by the appellant, Ciechon v. City of Chicago , 686 F.2d 511 (7th Cir. 1982), is distinguishable from the present case. In Ciechon , the city promised prior to the employee’s disciplinary hearing that she would be dismissed. Id. at 518. The city then followed through on that promise despite the fact that the charges were “unsupported by the evidence” and the initial investigation had not recommended the employee’s dismissal. Id. at 521. Here, the agency never specifically promised that the appellant would be removed and, although it failed to prove some charges and speci fications, the action as a whole was supported by the evidence. 16 for the reasons set forth below, we find that Rodrigue z does not compel a different outcome in this appeal. ¶28 Rodriguez involved an action taken under 38 U.S.C. § 714, a provision enacted as part of the VA Accountability Act. Rodriguez , 8 F.4 th at 1295 . The Federal Circuit in Rodriguez found in relevant part that the B oard misinterpreted that provision by ruling that “substantial evidence” is the proper standard for the agency to apply in determining whether an employee has engaged in misconduct that j ustifies discipline. Id. at 1297. The court foun d that although the VA Accountability Act provides that the agency is only required to prove its case before the Board by substantial evidence, the agency must apply a preponderant evidence standard in determining whether the charges against the appellant are proven. Id. at 1297 -1301. The court noted the following factors in finding that remand was required for application of the prepo nderant evidence standard: (1) The agency’s position, taken both in litigation and in its internal guidance, was that substantial evidence was the proper burden of proof for the agency’s determination; (2) the deciding official appeared to apply the substantial evidence standard when resolving the disputed facts and se lecting a penalty; and (3) the administrative judge found that substantial evidence was the appropriate burden of proof for the agency. Id. at 1297 -98. ¶29 There are important legal and factual distinctions between Rodriguez and the present case. As to leg al distinctions, n either the Choice Act provision at issue here nor the VA Accountability Act provision at issue in Rodriguez specifically addresses the agency’s burden of proof in making its initial disciplinary determination. However, whereas the VA Acc ountability Act specifically provides that the Board should review the agency’s determinations under a substantial evidence standard, 38 U.S.C. § 714(d)(2)(A) , (3)(B), the Board’s regulations impl ementing the Choice Act provide that the agency’s decision “shall be sustained only if the factual reasons for the charge(s) are supported by a preponderance of the evidence.” 5 C.F.R. § 1210.18 (a). Thus, the 17 agency was on notice in this case that it needed at least preponderant evidence in support of its charges to survive a challenge under the Choice Act. ¶30 Factu ally, the deciding official here stated in a sworn declaration before the administrative judge that he had determined that the charges “were supported by a preponderance of the evidence.”15 RF, Tab 71 at 59. By contrast, the deciding official in Rodriguez stated in the decision notice that the charges “were supported by substantia l evidence.” Rodriguez , 8 F.4 th at 1297. Additionally, the administrative judge in Rodriguez specifically found that the agency’s determination was subject to a substantial evidence standard, id. at 1298, whereas the administrative judge here made no such finding; his only reference to the burden of proof was his finding that the agency was required to prove its charges before the Board by preponderant evidence. ID at 11 (citing 5 C.F.R. § 1210.18 ). ¶31 We therefore find that both the deciding official and the administrative judge applied a preponderant evidence standard to the agency’s charges. Accordingly, there is no need for a remand to remedy the incorrect application of the substantial evidence standard as was the case in Rodriguez . The appellant has not shown that the penalty of removal was unreasonable. ¶32 The Board’s regulations governing appeals brought under section 707 of th e Choice Act provide that proof of the agency’s charges by preponderant evidence creates a presumption that the Secretary’s decision was warranted. 5 C.F.R. § 1210.18 (d). An appellant m ay rebut that presumption by establishing that the imposed penalty was unreasonable under the circumstances of the case. Id. We find that the appellant has not rebutted that presumption and that her removal was therefore warranted. 15 As the appellant correctly notes, the agency’s internal guidance in effect at the time of her removal provided that a deciding official in an action against a Senior Executive “shall determi ne whether substantial evidence supports the charge(s). . .” RF, Tab 28 at 12. However, the evidence does not support a finding that the deciding official here applied that lower standard. 18 ¶33 First, the appellant a rgues that the administrative judge erred in failing to sanction the agency for its failure to respond adequately to her discovery requests regarding possible comparators. She argues that the Board should correct that error by making an adverse inference against the agency and finding that it treated her more harshly than other employees who engaged in the same misconduct. RF, Tab 8 at 31 -32. However, we find that no such adverse inference is appropriate here. ¶34 Among the appellant’s discovery requests w ere interrogatories seeking the identity of other senior agency employees who had been charged in the prior 5 years with (1) failure to report gifts on a financial disclosure form and (2) misconduct relating to whether the employee knew or should have know n that a personnel action taken on a subordinate employee could be perceived as retaliation. IAF, Tab 61 at 28. In response to the appellant’s motion to compel, the administrative judge ordered the agency to fully respond to those interrogatories as to a ll Senior Executive Service employees and GS -15 Medical Center Directors. IAF, Tab 66 at 4. The agency responded that no such senior officials had been charged with either offense during that period. IAF, Tab 70 at 102. In his decision, the administrat ive judge noted “issues with the agency’s discovery responses,” but he determined that drawing adverse inferences against the agency for its discovery responses was not justified given the novelty and speed of the Board proceedings under section 707 of the Choice Act. IAF, Tab 75 at 2. ¶35 An administrative judge has broad discretion in ruling on discovery matters, and absent an abuse of discretion the Board will not find reversible error in such rulings. Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 16 (2016). We find that the administrative judge’s decision not to draw an adverse inference or impose other sanctions against t he agency was within his broad discretion. Although he found that there were issues with the agency’s discovery responses in general, the administrative judge did not identify any particular issue with the 19 agency’s responses regarding potential comparator s, and the appellant has not demonstrated that those responses were inaccurate or incomplete. We therefore find that no adverse inference should be drawn against the agency regarding alleged disparate treatment.16 ¶36 In analyzing the penalty relative to the p roven charges and specifications, the administrative judge found that the most serious proven misconduct was the appellant’s acceptance of and failure to report gifts from a consultant to a healthcare provider that was seeking to conduct business with the agency. IAF, Tab 75 at 58. He found that the appellant’s acceptance of thousands of dollars in gifts was particularly serious because of the appellant’s senior position and the appearance of a conflict of interest created by those gifts. Id. at 58 -59. He further found that the appellant’s misconduct was more likely than not intentional. Id. at 59. In addition, he found that the appellant was on clear notice that her failure to report gifts was actionable misconduct and that her response to the charges against her did not demonstrate potential for rehabilitation.17 Id. at 60-61. Ultimately, the administrative judge found that those factors outweighed the appellant’s contention that she had a long record of blemish -free 16 Apart from her argument that an adverse inference should be dra wn regarding disparate treatment, the appellant also asserts that the record shows she was treated more harshly than other employees. Specifically, she cites the agency’s failure to remove another medical center director whom it had charged with failure t o provide effective oversight. RF, Tab 8 at 33 n.22. However, we find that the agency’s failure to remove another employee based on one of the three charges brought against the appellant is not itself sufficient to establish disparate treatment or to ove rcome the presumption that the appellant’s removal was warranted. See Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 18 (reiteratin g that the consistency of the penalty is just one of many relevant factors in determining an appropriate penalty). 17 The appellant argues that the administrative judge’s findings regarding her rehabilitative potential constituted an improper adverse infere nce based on the invocation of her privilege against self -incrimination. RF, Tab 8 at 34. The administrative judge indicated that he would not draw such an inference. IAF, Tab 75 at 2. However, because the appellant has the burden of proof as to penalt y, merely noting the absence of evidence that could demonstrate rehabilitative potential does not constitute drawing an adverse inference. 20 Federal service, the lack of notoriety in connection with the proven misconduct, and her complaints about the propriety of the agency’s investigation that resulted in her removal. Id. at 59 -61. ¶37 We find that the administrative judge properly analyzed the relevant factors and c orrectly determined that the appellant failed to overcome the presumption that her removal was warranted. We therefore affirm the decision of the administrative judge. NOTICE OF APPEAL RIG HTS18 The decision of the administrative judge , as supplemented by t his Final Order, constitutes the Board’s final decision in this matter. You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protecti on Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek rev iew of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should con tact that forum for more information. 18 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 21 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal C ircuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decis ion—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 22 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for rev iew to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 23 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhan cement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice descri bed in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of c ompetent jurisdiction.19 The court of appeals must 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 19 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals o f competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal ca ses with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 24 Additional infor mation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 f or the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HELMAN_SHARON_DE_0707_15_0091_M_1_FINAL_ORDER_2044520.pdf	2023-06-27	null	DE-0707	NP
2,984	https://www.mspb.gov/decisions/nonprecedential/SINGLETARY_CRAIG_M_DC_0752_16_0880_I_1_FINAL_ORDER_2044577.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CRAIG M. SINGLETARY, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER DC-0752 -16-0880 -I-1 DATE: June 27, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Humphrey S. Cummings , Esquire, Charlotte, North Carolina, for the appellant. Greg Allan Ribreau , Esquire, Charlotte, North Carolina, 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 decisi on, which dismissed his restoration appeal for lack of jurisdiction . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the fi lings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision. Except as expressly MODIFIED by this Final Order to apply the nonfrivolous allegation standard for establishing jurisdiction set forth in the Board’s revised regulations , we AFFIRM the initial decision . ¶2 On September 15, 2 016, the appellant filed the instant appeal alleging that the agency denied him restoration from November 3, 2015 , to January 12, 2016, and discriminated against him based upon his disability, harassed him, and retaliated against him for his previous equal employment opportunity (EEO) activity and for filing a workers’ compensation claim . Initial Appeal File (IAF), Tab 1. He requested a hearing. Id. The agency moved to dismiss the appeal for lack of jurisdiction because the appellant had not alleged tha t his absence was due to a compensable injury. IAF, Tab 5. Subsequently, the administrative judge issued an order informing the parties of the requirements for establishing jurisdiction and ordering the appellant to show cause why the appeal should not be dismissed for lack of jurisdiction . IAF, Tab 6. The appellant did not respond to the order. Accordingly, without holding the appellant’s requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdict ion. IAF, Tab 7, Initial Decision (ID). 3 ¶3 The appellant has filed a petition for review , and the agency has responded in opposition to his petition. Petition for Review (PFR) File, Tabs 1, 3.2 ¶4 On review, the appellant challenges the initial decision and as ks the Board to grant him a hearing and adjudicate his claims of discrimination based upon disability , failure to accommodate his disability, and retaliation for his prior EEO and workers’ compensation activity . PFR File, Tab 1 at 3-8.3 However, as t he administrative judge correctly stated, t he Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule , or regulation . ID at 2; see Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). Under the Board ’s revised regulation s, to establish jurisdiction over a denial of resto ration claim as a partially recovered employee for any appea l filed on or after March 30, 2015, an appellant is required to make nonfr ivolous allegations of the following: (1) he was absent from h is position du e to a compensable injury; (2) he recovered sufficiently to return to duty on a part -time basis , or to re turn to work in a position with less demanding physical requirements than those previously required of h im; (3) the agency denied h is request for restoration; and (4) the denial was arbitrary and c apricious because of the agency’ s failure to perform its ob ligations u nder 5 C.F.R. § 353.301 (d). See 2 The agency challenges the timeliness of the pet ition for review because the initial decision became final on December 7, 2016 , and the Clerk of the Board did not receive the petition until December 12, 2016. PFR File, Tab 3 at 5-6. However, the appellant mailed the petition for review when it was due, on December 7, 2016, PFR File, Tab 1, and thus it was timely filed, 5 C.F. R. § § 1201.4 (l), 1201.114(e). Further, to the ex tent that the agency alleges that the appellant should have filed his petition via e -Appeal on December 7, 2016, s uch filing is not mandatory. 5 C.F.R. § 1201.14 (f). 3 With his petition, t he appellant attached a Novemb er 2015 letter requesting EEO counseling, a March 2016 EEO specialist’s inquiry report, and an EEO dispute resolution specialist’s March 2016 report. We do not consider this evidence because it is not new. PFR File, Tab 1; see 5 C.F.R. § 1201.115 (d). He also attached a December 7, 2016 declaration from his attorney . We do not consider this evidence because it is not material to the issue of jurisdiction. PFR File, Tab 1; see 5 C.F.R. § 1201.115 (d). 4 Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 11 (2016); 5 C.F.R. § 1201.57 (b).4 ¶5 We a gree with the administrative judge that, although the appellant originally had a compensable injury, he did not allege that his absence between November 3, 2015 , and January 12, 2016 , was due to that injury. ID at 3 ; IAF, Tab 1, Tab 5 at 10 -11. Instead, the appellant submitted evidence to the agency that his absence was due t o other medical conditions . IAF, Tab 5 at 28-33, 41 -42. Thus, the record reflects that the appellant was not absent due to a compensable injury , and we lack jurisdiction over his cl aim. ¶6 Accordingly, because we lack jurisdiction over the appeal , we cannot address the appellant’s claims of discrimination based upon disability, failure to accommodate his disability, and retaliation for his EEO and workers’ compensation activity . See Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (finding that prohibited personnel practices are not an independent source of Board jurisdictio n and that, absent an otherwise appealable action, the Board lacks jurisdiction to consider an appellant’s affirmative defenses) , aff’d , 681 F.2d 867, 871 -73 (D.C. Cir. 1982) . 4 The administrative judge informed the parties that the appellant must establish jurisdiction by preponderant evidence and applied this standard in the initial decision. IAF, Tab 6; ID at 3. However, because the appellant filed the instant appeal on or a fter March 30, 2015 , he only is required to make a nonfrivolous allegation of jurisdiction . See K ingsley , 123 M.S.P.R. 365 , ¶ 1 0. The difference in standard does not affect the appellant’s substantive rights becaus e the newer standard is more lenient , and he could not establish jurisdiction under either standard . See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (stating that an adjudicatory error that is not prejudicial to a party ’s substantive rights provides no basis for reversal of an initial decision ); compare 5 C.F.R. § 1201.4 (q), with 5 C.F.R. § 1201.4 (s). 5 NOTICE OF APPEAL RIG HTS5 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 w hich to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appr opriate for your situation an d the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law a pplicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in ge neral . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U. S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses th e services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were af fected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a c ivil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Per ry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 7 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their resp ective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your rep resentative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EE OC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 8 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 Cir cuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants b efore the Federal Circuit. The 6 The original statutory provision that provided for j udicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions fo r judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2 017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective website s, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SINGLETARY_CRAIG_M_DC_0752_16_0880_I_1_FINAL_ORDER_2044577.pdf	2023-06-27	null	DC-0752	NP
2,985	https://www.mspb.gov/decisions/nonprecedential/RODGERS_CLIFTON_S_CH_0752_19_0204_I_1_FINAL_ORDER_2044623.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CLIFTON S. RODGERS, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER CH-0752 -19-0204 -I-1 DATE: June 27, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Chris S. Searcy , Danville, Kentucky, for the appellant. Captain Margaret Walton and Lieutenant Colonel Na talie L. Lewellen , Frankfort, Kentucky, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which reversed the appellant’s removal . On petition for review, the agency argues that the administrative judge erred in finding that it failed to prove its charges . Generally, we grant petitions such as this one only in the following 1A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute 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 affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting 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 ORDER ¶2 We ORDER the agency to cancel the remova l and retroactively restore the appellant effective February 13, 2019. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984 ). The agency must complete this action no later than 20 days after the date of this decision. ¶3 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’ s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s 2 The appellant filed a motion on petition for review challenging the agency’s certification of compliance with the administrative judge’s interim relief order. Petition for Review File, Tab 9. However, the issuance of our final decision denying the agency’s petition for review renders moot any dispute concerning the agency’s compliance with the interim relief order. See Ayers v. Department of the Army , 123 M.S.P.R. 11 , ¶ 8 (2015) . If the appellant believes that the agency is in noncompliance with the Board’s final order, he may file a petition for enforcement in accorda nce with the instructions provided below. See id. 3 efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary informat ion 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 th e date of this decision. ¶4 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, sh ould ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶5 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the app ellant 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). ¶6 For agencie s 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 paymen t can be made within the 60 -day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet th e requirements set forth at Title 5 of 4 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 decis ion on your appeal. 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 and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representati ve receives this decision before you do, then you must file 6 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, nati onal origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information f or U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternat ively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in th is case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it mu st be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 7 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option appli es to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices d escribed in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 th e Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “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 origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protectio n Board appellants before the 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 thei r respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 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. Missin g 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 d amages) 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 Remed y 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 DF AS 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 severan ce 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 leav e ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK 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 decisi on. 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 incl ude 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 document ation 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 t he 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.	RODGERS_CLIFTON_S_CH_0752_19_0204_I_1_FINAL_ORDER_2044623.pdf	2023-06-27	null	CH-0752	NP
2,986	https://www.mspb.gov/decisions/nonprecedential/YEKSIGIAN_MICHAEL_J_DC_1221_17_0767_W_2_FINAL_ORDER_2043972.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MICHAEL J. YEKSIGIAN , Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER S DC-1221 -17-0767 -W-2 DC-0752 -15-1188 -I-4 DATE: June 26, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Raymond C. Fay , Esquire , and Jessica T. Ornsby , Esquire, Washington , D.C., for the appellant. James Vietti , Esquire, Lisa Marie Golden , Esquire, Lundi McCarthy Shafiei , Esquire, and Supraja T. Murali , 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 in these joined individual right of action (IRA) and removal appeals , which denied his 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 request for corrective action and affirmed h is remo val. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erron eous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that 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 vacate the portion s of the initial decision finding that the agency proved by clear and convincing evidence that it would have taken the same actions in the absence of the appellant’s purported disclosures and to merg e the failure to follow leave procedures charge with the absence without leave (AWOL) charge , we AFFIRM the initial decision. BACKGROUND ¶2 Beginning in April 2011, the appellant served as a Program Manager with the Program Analysis and Evaluation Office (PA&E) of the Pentagon Force Protection Agency (PFPA) , a component of the Depar tment of Defense (DoD) . Yeks igian v. Department of Defense , MSPB Docket No. DC -1221 -17-0767 -W-2, Appeal File ( W-2 AF ), Tab 18 at 5-6. Shortly after he started working at PFPA, the appellant became concerned that it lacked the proper acquisition authority, i.e., the authority to purchase goods and contract for services . W-2 AF , Hearing Transcript, Day 1 (HT1) at 248 -49 (testimony of the appellant). He investigated the matter and learned th at PFPA ’s charter did not provide the PFPA Director 3 with acquisition authority for PFPA programs and the Office of the Unde r Secretary of Defense for Acquisition, Technology and Logistics (AT&L), a separate DoD agency, had not issued a letter delegating acquisition authority to PFPA . Id. at 251 -52, 265 -66; W-2 AF , Tab 19 at 420 . The appellant also learned that AT&L had issue d a directive delegating acquisition authority to the Acquisition Directorate (AD) of another DoD component, the Washington Headquarters Service (WHS), which had acquisition authority for both WHS and PFPA. W-2 AF , Tab 19 at 395 , Tab 20 at 23 . ¶3 On March 14 , 2014, the appellant sent an email to PFPA’s Chief of Staff conveying his “initial thoughts” on the acquisition authority issue. W-2 AF , Tab 20 at 30. The appellant argued that PFPA should secure a delegation of acquisition authority from AT&L because “PFPA is a complete and separate entity” from WHS and, absent such a delegation, PFPA would require WHS’s permission to manage its programs. Id. The appellant stated, “I don’t think the [PFPA] Director should have to go to WHS to manage PFPA programs.” Id. ¶4 On March 25, 2014, the appellant sent an email to various agency officials, including his immediate supervisor and PFPA ’s Director and Deputy Director, stating that PFPA’s lack of contracting authority “possess [sic] a dilemma as to who is legally respo nsible for decisions associated with the PFPA acquisition process. ” W-2 AF , Tab 20 at 31 . The appellant asserted that he had discussed this matter with individuals in AT&L and “it was recommend [sic]”2 that PFPA obtain a memorandum from AT&L delegating acquisition authority to the PFPA Director because PFPA is a completely separate entity from WHS . Id. The appellant claimed that such a memorandum would make it clear that “the PFPA Director is the Senior Procurement Executive for [PFPA ] and is solely 2 It is unclear whether this recommendation was made by AT&L personnel or the appellant. 4 responsible for the acquisition decisions associated with the procurement of goods and services for [PFPA ].” Id. ¶5 On April 14, 2014, t he appellant met with AT&L’s Acting Deputy Director for Contract Policy and International Contracting (Contracting ADD) to discus s the appellant’s concerns about PFPA’s acquisition authority. W-2 AF , Tab 30 at 24. In an email exchange with the Contracting ADD later that week, the appellant ask ed whether there was “clear guidance of what programs would require Delegated A cquisition Authority from AT&L.” Id. at 23. In response, the Contracting ADD recommended that the appellant consult DoD Directive 5000.01 , which defines the term “acquisition program” as follows: “directed , funded effort that provides new, improved , or continuing materiel , weapon or infor mation system s or service capability in response to an approved need. ” Id. at 22. The Contracting ADD explained that PFPA would need acquisition authority if it was going to acquire any of the defined capabilities , but not if it was buying a commercial product . Id. at 22 -23. ¶6 On June 24, 2014, the appellant called in to work sick and went for a walk . HT1 (testimony of the appellant). Later that morning, local police stopped the appellant for allegedly follow ing a woman on foot for about one mile while taking multiple photographs with his telephone as she attempted to evade him . W-2 AF , Tab 42 at 6. The police officers noted that , during the stop, the appellant did not provide coherent answers to their questions a nd was singing to himself and dancing on the sidewalk. Id. That afternoon, the appellant went to the building where he worked and told an AT&L employee that he had information about someone “wanting to blow up” Arlington , Virginia . Id. at 18. ¶7 Later that day , PFPA’s Acting Assistant Director for Mission Integration (Mission Integration AAD) issued a memorandum notifying the appellant that he was being placed on administrative leave (AL memo ) and explaining the conditions of his administrative leave . Yeks igian v. Department of Defense , MSPB Docket No. DC -0752 -15-1188 -I-1, Initial Appeal File ( I-1 IAF ), Tab 9 5 at 86-87. The AL memo stated that the appellant was required to contact the Mission Integration AAD by 8:30 a.m. daily to ask if he was to report for duty , and that he was expected to remain available by telephone during his normal work hours and be ready and available to return to work within 2 hours of being notified to do so. Id. at 86. The AL memo also stated that i f the appellant needed to take sick or annual leave —during which time he would not be available by telephone or available to return to work —he was required to request leave from the Mission Integration AAD and would be notified if it was approved. Id. Lastly, the AL memo warned th e appellant that his failure to comply with proper leave procedures could result in his being charge d AWOL. Id. ¶8 In September of 2014 , the appellant traveled to France, and he was on approved leave from September 2 through October 4, 2014. W-2 AF , Tab 18 at 21, 23 , 27. On September 17, 2014, the appellant telephoned his supervisor and inquired about taking medical/ sick leave . Id. at 30. The next day, an employee with PFPA’s Human Capital Program Management Directorate emailed the appellant an Office of Personnel Management (OPM) Form 71, “Request for Leave or Approved Absence,” and provided him with information related to the Family and Medical Leave Act of 1993 (FMLA). I-1 IAF, Tab 10 at 41. In the email, t he employee notified the appellant that he wa s required to submit a completed OPM Form 71 for each pay period during which he sought to invoke his FMLA rights , along with supporting medical documentation and an expected “return to duty” date . Id. ¶9 On October 1, 2014, the appellant notif ied his supervisor via email that he was scheduled to remain in Paris until the middle of November and wanted to use sick leave for th e rest of his time abroad because he had used nearly all of his annual leave . W-2 AF , Tab 18 at 28 . In response, the appellant’s supervisor sent the appellant an email on October 3, 2014, notif ying him that he had exhausted his regular available leave on or about September 26, 2014, that his approved 6 leave w ould end on October 4, 2014 , and that the period between September 26 and October 4, 2014, would be recorded as Leave Without Pay (LWOP) . Id. ¶10 In the email, t he appellant’s supervisor informed the appellant t hat sick leave usage is not intended to supplement exhausted annual leave , and explain ed that the appellant could request sick leave and/or FMLA leave for certain reasons, including personal medical care needs. Id. at 27. The appellant’s supervisor also informed the appellant that, if he applied for FMLA leave or more than 3 calendar days of sick leave, he was required to submit certain documentation, including a completed OPM Form 71, by Oc tober 17, 2014 , and that PFPA would decide whether to approve his request for extended sick leave after it received the docu mentation. Id. Finally, t he appellant’s supervisor stated that the appellant was expected to fully comply with the requirements of the AL memo; thus, if he was not available to report for duty on Monday, October 6, 2014, he would be charged with AWOL and subject to the full range of penalties for adverse disciplinary actions, including removal. Id. ¶11 On October 6, 2014, the appellant sent his supervisor an email stating that he was taking sick leave for the day because he was not feeling well . W-2 AF , Tab 18 at 32. In his email response, the appellant’s supervisor notified the appellant t hat he was being placed in an AWOL status effective October 6, 2014 , and that he had three options: (1) return to the United States and abide by the directions in the AL memo; (2) provide suffic ient documentation to s upport a request for sick leave; or (3) be placed on AWOL and subject to future disciplinary action , up to removal from Federal service. Id. at 31. The appellant’s supervisor also provided the appellant an OPM Form 71 and asked him to complete the form and return it with supporting documentation to substantiate the need for sick leave. Id. ¶12 On October 7 and 8 , 2014, the appellant notified his supervisor by email that he was “[s]till not feeling well” and would continue to take sick leave. W-2 AF, Tab 18 at 38 -40. On October 9, 2014, the appellant sent his supervisor an 7 email stating that he did not feel safe in the United State s and would obtain the required documentation so that he could start takin g his “stockpile of sick leave.” Id. at 42. ¶13 On October 17, 2014, the appellant emailed his supervisor an unsigned OPM Form 71 , requesting 232 hours of accrued sick leave under the FMLA for September 29 to November 7, 2014. I-1 IAF, Tab 9 at 128 . The app ellant did not submit any medical documentation , but stated in his email that his physician’s office would send supporting documentation to PFPA . Id. ¶14 On November 6, 2014, t he appellant’s supervisor sent the appellant a memorandum inquiring about h is intention to return to duty. I-1, IAF, Tab 9 at 131-32. In the memorandum, the appellant’s supervisor ordered the appellant to comply with the requirements of the AL memo or advise the supervisor in writing of his intent to remain employed at PFPA by No vember 12, 2014. Id. at 132. The memorandum also informed the appellant that he had three options: (1) return to duty by November 12, 2014 , if medically able to do so; (2) request a reasonable accommodation to effectively enable him to perfo rm the essen tial functions of his position ; or (3) submit a written resignation letter to the supervisor by close of business o n November 12, 2014, if he did not intend to return to work. Id. at 132. In his memorandum, the appellant’s supervisor also warned the appellant that he intended to propose his separation from Federal service if he failed to exercise any of the se options and inform the supervisor which option he had chosen by November 12, 2014 . Id. The appellant did not exercise any of the se options by that date; however , he returned to administrative leave on November 18, 2014. Id. at 28. ¶15 On March 20, 2015, the agency issued a notice proposing to remove the appellant based on three charges: (1) AWOL; (2) failure to follow leave procedures; and (3) failure to follow supervisory instructions. I-1 IAF, Tab 9 at 41-47. 8 ¶16 The AWOL charge alleged that the appellant was AWOL between October 6 and November 17, 2014. Id. at 41. ¶17 In support of the charge of f ailure to follow leave procedures , the ag ency alleged that, p ursuant to the AL memo, the appellant was required to follow established leave procedures if he was un available to return to work within two hours of being notified to do so. Id. It further alleged that, between October 6 and November 17, 2014, t he appellant was in Paris, France , and therefore, unavailable to return to duty at the Pentagon within 2 hours of being notified to do so. Id. The agency asserted that, consequently, the appellant’s administrative leave status was suspended a nd he was required to comply with proper leave procedures to request leave to cover all duty hours during which he was unavailable. Id. ¶18 In support of the third charge, failure to follow supervisory instructions, the agency alleged that, in a memorandum dated November 6, 2014, the appellant was ordered to either comply with the AL memo or advise his supervisor in writing of his intent to remain employed with PFPA by November 12, 2014 ; however, the appellant did not respond in writing prior to that date . Id. ¶19 On March 23, 2015, the appellant filed a complaint with the Office of Special Counsel, alleging that the agency took various actions against him in reprisal for his whistleblowing, including bann ing him from communicating with AT&L and placing him on administrative leave . Yeks igian v. Department of Defense , MSPB Docket No. DC -1221 -17-0767 -W-1, Initial Appeal File (W-1 IAF), Tab 1 at 32. The appellant subsequently amended the complaint to allege that the agency also retaliated against him for his whistleblowing by proposing his removal. W -1 IAF, Tab 7 at 20. ¶20 On April 1, 2015, the appellant submitted a written reply to the proposed removal . I-1 IAF, Tab 9 at 49 -67. On August 18, 2015 , the deciding official issued a decision sustaining all of the charges and finding removal warranted. Id. 9 at 35 -38. The agency remov ed the appellant from his position effective August 28, 2015 . Id. at 33-34. ¶21 On September 25, 2015, the appellant filed a Board appeal challenging his removal and rais ing an aff irmative defense of whistleblower retaliation. I-1 IAF, Tab 1 at 6. He also filed an IRA appeal with the Board. W-1 IAF, Tab 1. The administrative judge joined the IRA and removal appeal s. W-1 IAF, Tab 6 . ¶22 Following a 3-day hearing, the administrative judge issued an initial decision that denied the appellant’s request for corrective action in his IRA appeal and affirmed the appellant’s removal . W-2 AF , Tab 79, Initial Decision (ID). In the IRA appeal, the administrati ve judge found that the appellant failed to establish that he made a protected disclosure and, therefore, failed to establish a prima facie case of whistleblower retaliation. ID at 11 -16. In the alternative, the administrative judge found that, even if t he appellant had established a prima facie case of whistleblower retaliation, he was not entitled to corrective action because the agency proved by clear and convincing evidence that it would have taken the same actions in the absence of the protected disc losure. ID at 16 -22. ¶23 In the removal appeal, the administrative judge found that the agency proved all of the charges by preponderant evidence, ID at 23-27, that there is a nexus between the charge s and the efficiency of the service, ID at 28, and that the penalty of removal is reasonable , ID at 28-30. The administrative judge also found that the appellant failed to prove his affirmative defense. ID at 30-32. ¶24 The appellant has filed a petition for review , the agency has filed a response in opposition to t he petition for review, and the appellant has filed a reply to the agency’s response . MSPB Docket No. DC -1221 -17-0767 -W-2, Petition for Review (PFR) File, Tabs 5, 9, and 12. 10 ANALYSIS IRA Appeal The administrative judge correctly found that the appellant failed to establish that he made a protected disclosure . ¶25 After establishing the Board’s jurisdiction in an IRA appeal, the appellant must establish a prima facie case of whistleblower retaliation by proving by preponderant evidence that: (1) he made a pro tected 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. § 1221 (e)(1); Chambers v. Department of the Interior , 116 M.S.P.R. 17 , ¶ 12 (2011). If the appellant proves that his protected disclosure or activity was a contributing factor in a personnel action taken against him, the agency is 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 or activity. 5 U.S.C. § 1221 (e)(1) -(2); Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016) . ¶26 A protected disclosure is a ny disclosure of information that the appellant reasonably believes evidence s any violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(A); Salerno , 123 M.S.P.R. 2 30, ¶ 2 n.1. The proper test for assessing whether a protected disclosure occurred is an object ive one: Could a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee reasonably conclude that the actions of the government evidence one of the categories of wrongdoing identified in 5 U.S.C. § 2302 (b)(8)(A)? Salerno , 123 M.S.P.R. 2 30, ¶ 6. General philos ophical or policy disagreements with agency decisions or actions are not protected unless they separately constitute a 11 protected disclosure of one of those categories of wrongdoing . See 5 U.S.C. § 2302 (a)(2)(D) ; White v. Department of the Air Force , 391 F.3d 1377 , 1382 (Fed. Cir. 2004) (stating that a mere policy dispute does not amount to a protected disclosure within the meaning of the whistleblower protection statutes) ; Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 8 (2015) . ¶27 As note d in the initial decision, at issue in this appeal is the appellant’s disclosure to various agency officials that PFPA lacked acquisition authority to purchase goods and services. ID at 9 (citing W -1 IAF, Tab 8). In assessing whether th is disclosure w as protected, the administrative judge considered the relevant documentary evidence and hearing testimony, including the testimony of the appellant , the Contracting ADD, and PFPA’s Acquisitions and Requirements Chief (AR Chief), whose division is responsible for all PFPA acquisitions and procurements. ID at 12 -15; W-2 AF , Hearing Transcript, Day 3 (HT3) at 854 (testimony of the AR Chief ). ¶28 During his hearing testimony , the AR Chief explained that, pursuant to the policies and regulations governing PFPA’s procu rement process, PFPA procures goods and services through the contracting office of WHS/AD, which has acquisition and procurement authority for PFPA.3 HT3 at 856-59 (testimony of the AR Chief) . In particular, t he AR Chief noted that a July 21, 2014 memorandum from AT&L’s Director of Defense Procurement and Acquisition 3 During the hearing and in his email correspondence with the appellant, the Contracting A DD distinguished between acquisition and procurement . HT3 at 830 -32 (testimony of the Contracting ADD); W-2 AF , Tab 30 at 22 -23. The Contracting ADD testified that acquisition is a broader function than procurement , as procurement official s contract for goods and services on behalf of DOD, whereas officials with acquisition authority determine which goods and services will be acquired. HT3 at 830 (testimony of the Contracting ADD) . He further testified that commercial goods and services a re not subject to the acquisition process . Id. at 831-32. Similarly, in an April 17, 2015 email to the appellant , the Contracting ADD explained that PFPA would not need acquisition authority to purchase a commercial product , as that action would be consi dered procurement , not acquisition. W-2 AF , Tab 30 at 22 -23. 12 Policy delegates PFPA acquisition authority to the Director of WHS’s Acquisition and Procurement Office (APO) – the lead contracting officer at WHS . Id. at 867; W-2 AF , Tab 51 at 15 7. The AR Chief also testified that PFPA’s charter states that WHS will procure items for PFPA. HT3 at 859 (testimony of the AR Chief) ; W-2 AF , Tab 19 at 4 20. The AR Chief further testified that DoD Directive 5000 .01 does not apply to PFPA because the DoD 5000 series of regulation s governs major weapons systems , such as tanks and airplanes, which PFPA does not acquire. HT3 at 862-63 (testimony of the AR Chief) . The administrative judge credited the AR Chief’s testimo ny, find ing that it was supported by the evidence in the record. ID at 14. ¶29 The administrative judge further found that the agency provided sufficient documentation to show that PFPA’s acquisition authority was proper . ID at 14. Speci fically, he noted th at: (1) a February 9, 2006 memorandum from the WHS Director delegated PFPA acquisition authority to the WHS /APO director ; and (2) a March 14, 20114 memorandum from the Secretary of Defense stated , “WHS will manage all [Office of the Secretary of Defense] contracting under a single Enterprise Contracting Office [SECO] .” ID at 14 -15; W-2 AF , Tab 19 at 395 , 405. The administrative judge found that the appellant was aware, or should have been aware, of those documents.5 ID at 15. ¶30 Based on the documentary evidence and hearing testimony , the administrative judge found that the appellant’s disclosure that PFPA lacked acquisition authority constituted a policy dispute about whether WHS or PFPA 4 The initial decision incorrectly identifies the date of the memorandum as May 14, 2011. ID at 14; W-2 AF , Tab 19 at 349. 5 The record demonstrates that the appellant was aware of the March 14, 2011 memorandum , i.e., the SECO directive . In a January 14, 2014 email addressing the appellant’s questions regarding PFPA’s acquisition authority, the Policy Officer for WHS /AD informed the appellant that the SECO directive provides that WHS/AD is th e single acquisition activity responsible for WHS and PFPA. W-2 AF , Tab 20 at 23. 13 should hav e acquisition authority for PFPA , and that the appellant did not reasonably believe that he had disclosed a violation of law, rule, or regulation. ID at 12 , 15. The administrative judge therefore found that this disclosure w as not protected. ID at 12. ¶31 The appellant challenges th ese finding s on review. PFR File, Tab 5 at 16-19. The appellant states that, in finding that his disclosure was not protected, the administrative judge relied on the AR Chief’s testimony that DoD Directive 5000. 01 applies only to major weapons systems, which PFPA does not acquire . PFR File, Tab 5 at 18 ; ID at 14; HT3 at 862 -63 (testimony of the AR Chief). The appellant asserts that he examined the same directive and reasonably concluded that it did not apply only to weapon s systems.6 Therefore, the appellant seems to contend his disclosure about PFPA’s lack of acquisition authority was protected because he reasonably believed that DoD Directive 5000.01 required PFPA to have acquisition authority. PFR File, Tab 5 at 18. ¶32 We fin d this apparent argument unpersuasive. When the Contracting ADD recommended that the appellant consult the definition of “acquisition program ” set forth in DoD Directive 5000. 01 to determine whether PFPA would need acquisition authority for any of its programs, he specifically stated that PFPA would not need acquisition authority to buy a commercial product . W-2 AF , Tab 30 at 23. During the hearing , the AR Chief testified that, to his knowledge, PFPA does not a cquire non -commercial goods or services. HT3 at 861 -62 6 The appellant further argues on review that the administrative judge’s finding that the Contracting ADD agreed with the AR Chief’s testimony about the major weapons system s is not borne out by the Contracting ADD’s testimony and writing. PFR File, Tab 5 at 19. The administrative judge did not make such a finding, however. The only statement in the initial decision regarding the Contracting ADD’s testimony about PFPA’s ac quisition authority is that he testified that it was possible that PFPA had the proper delegation of authority in place to acquire goods and services. ID at 14 (citing HT3 at 844 (testimony of the Contracting ADD)). We have reviewed the Contracting ADD’s testimony and find that the administrative judge did not mischaracterize it, as the appellant suggests. HT3 at 844 (testimony of the Contracting ADD). 14 (testimony of the AR Chief). The appellant did not offer any evidence that PFPA acquires any thing other than commercial goods and services. Given these circumstances, we find that the appellant did not reasonably believe that PFPA’s lack of acquisition authority violated DoD Directive 5000. 01. ¶33 The appellant also argues on review that the administrative judge erred in finding that his claim that PFPA lack ed acquisition authority was merely a policy disput e about which DoD agency or component should have acquisition authority for PFPA. PFR File, Tab 5 at 18. The appellant asserts that his claim was not based on whether another agency could exercise acquisition authority for PFPA. Id. Rather, he contends , his claim was based on the premise that he was tasked with investigating whether PFPA had the ability to exercise that authority for itself , and he found no evidence that PFPA had that authority . Id. at 18. ¶34 This argument is difficult to decipher . The appellant seems to argue that, in stating that PFPA did not have acquisition authority, he was not disagreeing with the policy delegating WHS acquisition authority for PFPA, but was simply disclosing the results of his investigation as to whether PFPA was a uthorized to exercise acquisition authority for itself. Id. ¶35 The record indicates, however, that the appellant was not merely reporting that WHS had acquisition authority for PFPA ; he was disagree ing with the decision to delegate that authority to WHS based on his view that the PFPA Director should not “have to go to WHS to manage PFPA programs.” W-2 AF , Tab 20 at 30. In any event, even assuming that the appellant’s disclosure concerning PFPA’s lack of acquisition authority does not constitute a polic y dispute about whether another agency should exercise acquisition authority for PFPA , but is merely a statement that PFPA does not have that authority, he has not shown by preponderant evidence that he reasonably believed that PFPA’s lack of contracting a uthority evidenced one of the categories of wrongdoing set forth in 5 U.S.C. § 2302 (b)(8)(A) . 15 ¶36 Because we have found that the appellant failed to prove that he made a protected disclosure, it is unn ecessary to decide whether the agency proved by clear and convincing evidence that it would have taken th e personnel actions at issue in the IRA appea l in the absence of h is disclosure. See Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154 , ¶ 19 n.10 (2014) (holding that the Board may not proceed to the clear and convincing test unless it has first made a f inding that the appellant established his prima facie case), aff’d per curiam , 623 F. App’x 1016 (Fed. Cir. 2015).7 Accordingly, we vacate the administrative judge’s findings concerning whether the agency met its clear and convincing burden. Removal Appea l8 We modify the initial decision to merge the failure to follow leave procedures charge into the AWOL charge . ¶37 As noted above, the agency charged the appellant with both AWOL and failure to follow leave procedures. I -1 IAF, Tab 9 at 41. The 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 failure to follow leave procedures for the same dates that he was ch arged with AWOL, and the AWOL charge was based on his failure to follow proper leave procedures to cover his absences on those dates. I -1 IAF, Tab 9 at 35-36. Therefore, we find it appropriate to merge the se two charge s. See McNab v. Department of the A rmy, 121 M.S.P.R. 661 , ¶ 4 n.3 (2014) (finding that the 7 Although the U.S. Court of Appeals for the Seventh Circuit has disagreed with the Board’s decision in Clarke , it has done so on different grounds. Delgado v. Merit Systems Protection Board , 880 F.3d 913 , 923 -25 (7 th Cir. 2018). Thus, its disagreement does not implicate the basis for which we cite Clarke here. 8 On review, the appellant does not challenge the administrative judge’s finding that the agency proved the charge of failure to follow supervisory instructions. See generally PFR File, Tab 5 ; ID at 27 . We discern no basis upon which to disturb that finding. 16 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 and AWOL when the charge of AWOL was based solely on the appellant’s failure to follow 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 leave procedures charge merges into the AWOL charge, proof of the AWOL charge will constitute proof of the failure to follow leave procedures charge. See Powell , 122 M.S.P.R. 60 , ¶ 10. The administrative judge correctly found that the agency proved the AWOL charge by preponderant evidence. ¶38 To prove an AWOL charge, an agency must demonstrate that the employee was absent without authorization and, if the employee requested leave, that the request was properly denied. Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 28 n.5 (2015) , overruled on other grounds by Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 23 -25. In sustaining the AWOL charge, the administrative judge found as follows: (1) it is undisputed that the appellant was absent from work between October 6 and November 17, 201 4; (2) the agency demonstrated that the appellant’s absence during this time was not authorized ; and (3) the agency properly denied the appellant’s requests for sick leave and FMLA leave. ID at 23-26. ¶39 The appellant argues on review that it is “legally imp ossible” for an employee to be absent from work while on administrative leave because he is not required to be at work. PFR File, Tab 5 at 32. Similarly, he contends that an employee on administrative leave cannot be absent from work without authorizatio n, as his absence is authorized by virtue of his placement on administrative leave. Id. 17 ¶40 These arguments are unavailing. As previously discussed, the AL memo set forth the conditions of the appellant’s administrative leave —including the requirement that h e be available to return to duty with 2 hours’ notice. I -1 IAF, Tab 9 at 86. In addition, the AL memo warned the appellant that if he failed to satisfy this requirement, he would no longer be o n administrative leave. Id. at 86. ¶41 Although the appellant’s approved leave ended on October 4, 2014, he remain ed in France until mid-November 2014 and thus was not available to return to duty with 2 hours’ notice. W-2 AF , Tab 18 at 28 . Consequently, pursuant to the terms of the AL memo, he was no longer in an adm inistrative leave status as of Monday, October 6, 2014 . I-1 IAF, Tab 9 at 86. ¶42 Further, the record clearly shows that the appellant’s absence during the period covered by the AWOL charge was not authorized. For example, in his November 6, 2014 memorandum inquiring about the appellant’s intent to return to duty, the appellant’s supervisor explicitly informed the appellant that his absence since October 6, 2014, was not authorized . Id. at 132. ¶43 In evaluating whether the agency pro perly denied the appellant’s requests for sick leave and FMLA leave, the administrative judge considered the agency ’s leave policy, which is set forth in Administrative Instruction 67 (AI 67). ID at 24-25; I-1 IAF, Tab 10 at 47-82, Tab 11 at 4 -17. The ad ministrative judge noted that AI 67 provides that an employee requesting sick leave or FMLA leave must submit a completed OPM Form 71 to his leave -approving official in advance of the requested absence . ID at 25 ; I-1 IAF, Tab 10 at 62, Tab 11 at 9. For sick leave requests, the official is entitled to receive administratively acceptable medical documentation in support of the request. ID at 25; I-1 IAF, Tab 10 at 63. Similarly, an employee requesting FMLA leave may be required to submit administratively acceptable medical documentation to substantiate the FMLA entitlement. ID at 25; I-1 IAF, Tab 11 at 9. ¶44 The administrative judge found that the agency notified the appellant of the requirement to submit a completed OPM Form 71 to request sick leave or FMLA 18 leave, and the requirement to provide medical documentation; however, the appellant failed to provide a signed, completed OPM Form 71 and failed to provide medical documentation to justify the approval of sick leave. ID at 25 (citing I -1 IAF, Tab 10 at 34 -35). Therefore, the administrative judge found, the agency was justified in denying the appellant sick leave and FMLA leave. ID at 25-26. ¶45 On review, the appellant argues that, a lthough he did not provide a ny medical documen tation in support of his leave request when he submitted his OPM Form 71 in October 2014 , he subsequently provided the requisite documentation when his physician in the United States submitted a report dated March 31, 2015 , that provided a legitimate basis for his October 2014 leave request. PFR File, Tab 5 at 30 -32; W-2 AF , Tab 46 at 5-6. The appellant contends that, b ecause his doctor submitted the medical documentation before the agency ’s decision to remov e him, the agency should have granted his leave request retroactively and rescinded the AWOL charge. PFR File, Tab 5 at 22, 30-32 (citing Nash v. U.S. Postal Service , 8 M.S.P.R. 307 , 310 -11 (1981) (holding that w hen an employee has submitted untimely medical evidence documenting that he was incapacitated for duty, prior to the a gency ’s decision to remove him on AWOL charges, the charges for those dates cannot be sustained because sick leave was improperly denied) ). ¶46 An AWOL charge will not be sustained if an appellant presents administratively acceptable evidence showing that he was incapacitated for duty during the relevant time period if the employee has suff icient sick leave to cover the period of absence. See Thom v. Department of the Army , 114 M.S.P.R. 169 , ¶ 5 (2010) . We have reviewed the March 31, 2015 report submitted by the appellant’s physician to determine whether it meets this standard. In his report, the appellant’s physician state d that the appellant had been his patient since July 2, 2014, and he had seen him for office visits two other times —on September 2, and November 17, 2014 . W-2 AF , Tab 46 at 5 . The physician 19 further state d that, although he and the appellant “had no formal conversation to determine when [the appellant] was appropriate to return to duty, i t seemed apparent that 9/2/14 would not have been the appropriate time.” Id. ¶47 This report does not show that the appellant was incapacitated from performing his duties during the period at issue. See Thom , 114 M.S.P.R. 169 , ¶ 6. Accordingly, we find that the appellant has not provided administratively acceptable evidence to justify his abs ence from October 6 to November 17, 2014. We therefore conclude that th e medical documentation submitted by the appellant provides no basis for finding that the AWOL charge cannot be sustained . ¶48 In sum, we agree with the administrative judge that the agenc y proved by preponderant evidence that the appellant was absent from work on the dates in question, that his absence was not authorized, and that his leave requests were properly denied. ID at 23-26. Therefore, we find that the administrative judge prope rly found that the agency proved the AWOL charge. ID at 26. The appellant’s remaining arguments regarding his leave status provide no basis to disturb the initial decision . ¶49 On review, the appellant makes several other allegations of agency error involving his leave status. PFR File, Tab 5 at 20 -33. We have considered these allegations as c laim s of harmful procedural error. The Board will not sustain an agency’s decision if an appellant proves the affirmative defense of harmful error in the agency’s application of its procedures in arriving at such decision. Doe v. Department of Justice , 123 M.S.P.R. 90 , ¶ 7 (2015). Harmful error cannot be presumed; an agency’s error is harmful only where the record shows that a procedural error was likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. Id. ¶50 The appellant argues on review that the agency placed him on administrative leave without any justification , and that the conditions of his administrative leave were a “sham,” particularly the requirement that he be 20 available to return to duty with 2 hours’ notice, as the agency had no intention of returning him to work. PFR File, Tab 5 at 22 -25. The appellant further argues that, by placin g him on administrative leave for several months, the agency failed to comply with OPM guidelines (which provide that administrative leave generally should not be used for an extended or indefinite period ) and A I 67 (which states that administrative leave should be granted sparingly and that absences for other than brief periods have been ruled inappropriate ). Id. at 23-24; I-1 IAF, Tab 10 at 67. ¶51 These arguments are unavailing. To the extent that the appellant is challenging the agency’s decision to place him on administrative leave, it is well settled that paid administrative leave is not an adverse action appealable to the Board. LaMell v. Armed Forces Retirement Home , 104 M.S.P.R. 413 , ¶¶ 7, 9 (2007) . ¶52 As for the appellant’s argument that the agency violated OPM guidelines and its own leave policy by placin g him on administrative leave for an extended period of time, neither of the provisions cited by the appellant preclude the use of administrative leave, nor has the appellant shown that the agency’s actions caused him any harm.9 Therefore, we find that th e appellant failed to prove any harmful error in conjunction with his placement on administrative leave . ¶53 The appellant also argues on review that the agency improperly placed him on AWOL for the week of October 6, 2019 , and should have placed him on annual leave instead . PFR File, Tab 5 at 20-21. In support of this argument , the appellant contends that his earnings and leave statement for the pay period ending November 1, 2014, indicates that he had an annual leave balance of 43.99 hours 9 Further, the provision of AI 67 cited by the appellant seems to pertain to situations in which the appellant has requested administrative leave and thus is not relevant here. I-1 IAF, Tab 10 at 67. 21 as of that dat e and, therefore, he could have used annual leave during the week of October 6, 2014. Id. at 20-21; W-2 AF , Tab 26 at 16. ¶54 The record contains conflicting evidence as to whether the appellant had any annual leave. Although the earnings and leave statement cited by the appellant indicates that he had an annual leave balance of 43.99 hours as of November 1, 2014, other record evidence indicate s that the appellant had 35 hours of annual leave at the beginning of th e pay period ending on October 4, 2014, and thus exhausted his annual leave on September 26, 2014. W-2 AF , Tab 18 at 36. ¶55 We need not resolve this matter, however. Even if the appellant did not exhaust his leave on September 26, 2014, but, instead, had an annual leave balance of 43.99 hours as of that date, his leave presumably would have been applied to the week ending October 4, 2014 , rather than the following week , as the agency had approved his absence through October 4, 2014. W-2 AF , Tab 18 at 27. Consequently, he would not have had enough annual leave to cover his absence for the week of October 6, 2014. ¶56 Further, even if the agency should have placed the appellant on annual leave for the week of October 6, 2014, any error in that regard provides no basis for disturbing the initial decision . Had t he appellant been in an annual leave status for the week of October 6, 2014, he still would have been AWOL for more than 1 month, i.e., from October 13 to November 17, 2014, and the Board has upheld the penalty of removal for fewer days of AWOL. Foreman v. U.S. Postal Service , 89 M.S.P.R. 328, ¶ 17 (2001) (holding that removal is reasonable for 16 days of AWOL). ¶57 We find similarly unavailing the appellant’s argument on review that t he agency improperly denied his requests for sick leave fro m October 6 -9, 2014. PFR File, Tab 5 at 21 -22; W-2 AF , Tab 32 at 25; Tab 33 at 8, 12 -13. The appellant contends that the agency should have granted these requests because he 22 explained the reasons for them and AI 67 authorizes employees to self-report and certify short -term illnesses. PFR File, Tab 5 at 21 -22; I-1 IAF, Tab 10 at 64. ¶58 As previously discussed, AI 67 provides that a leave -approving official is entitled to receive administratively acceptable medical documentation from an employee in support of sick leave requests. I-1 IAF, Tab 10 at 63. Although this instruction states that the employee “normally” will not be requested to provide certification for absences of 3 days or less, and that the employee’s self-certification as to the reason for his or her absence may be considered administratively acceptable evidence, regardless of the duration of the absence, it also states that the leave -approving official may request administratively acceptable medical docume ntation if there are circumstances that cause the supervisor to believe the request for sick leave may be improper . Id. at 63-64. We find that such circumstances were present during the week of October 6, 2014, given the appellant ’s statement to his supe rvisor in his October 1, 2014 email that he wanted to use sick leave for the remaining 6 weeks of his time abroad because he had used almost all of his annual leave . W-2 AF , Tab 18 at 28. Therefore, we find that the appellant’s supervisor did not err by requiring the appellant to provide certification to justify his sick leave and by denying those requests pending receipt of administratively acceptable medical evidence . ¶59 The appellant also argues on review that, pursuant to “standard personnel practice ” and agency policy, as set forth in A I 67, the agency should have placed him on LWOP rather than AWOL pending the resolution of his leave issues . PFR File, Tab 5 at 21. We have reviewed the AI 67 provisions pertaining to LWOP and they do not support the appellant’s claim. I -1 IAF, Tab 10 at 6 5-67. Under AI 67, absent an emergency, an employee must request LWOP on an OPM Form 71, LWOP is normally granted at the agency’s discretion , and an employee has no entitlements to LWOP, except under certain circums tances, none of which apply here. Id. at 65 -66. The record does not indicate that the appellant requested LWOP and, in any event, given that the authorization of LWOP is within the 23 agency’s discretion , we discern no error in the agency’s decision not to place the appellant on LWOP during the period at issue in this appeal . The administrative judge correctly found that the appellant failed to prove his whistleblower reprisal affirmative defense. ¶60 Under the Whistleblower Protection Enhancement Act of 2012 (W PEA), to prevail on a prohibited personnel practice affirmative defense in a chapter 75 appeal that independently could form the basis of an IRA appeal, once the agency proves its adverse action by a preponderance of the evidence, the appellant must demonstrate by preponderant evidence that he made a protected disclosure or engaged in protected activity and that the disclosure or activity was a co ntributing factor in the adverse action. Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶¶ 12-13 (2015) ; Shibuya v. Departm ent of Agriculture , 119 M.S.P.R. 537 , ¶ 19 (2013). If an appellant meets that burden, the burden of persuasion shifts to the agen cy to prove by clear and convincing evidence that it would have taken the same action in the absence of the appellant’s protected disclosure or activity. 5 U.S.C. § 1221 (e)(2); Alarid , 122 M.S.P.R. 600 , ¶ 14. ¶61 In addressing the appellant’s whistleblower reprisal claim in the context of his removal appeal, the administrative judge reasserted his finding that the appellant’s assertions about PFPA’s lack of acquisition authority did not constitute a protected disclosure. ID at 31. He therefore found that the appellant failed to prove this affirmative defense . Id. In the alternative, the administrative judge found that, even if the appellant had established that his disclosures were protected, the agency proved by clear and convincing evidence that it would have removed him absent his protected disclosures. ID at 31 -32. ¶62 For the reasons discussed above, we agree with the administrative judge that the appellant failed to prove that he made a protected disclosure. Therefore, we discern no reason to disturb the administrative judge’s finding that the 24 appellant failed to prove his affirmative defense of whistleblower reprisal .10 Because we have found that the appellant failed to prove that he made a protected disclosure, it is unnecessary to decide whether the agency proved by clear and convincing evidence that i t would have removed the appellant in the absence of his disclosure. See Clarke , 121 M.S.P.R. 154 , ¶ 19 n.10. Accordingly, we vacate the administrative judge’s findings concerning whether the agency proved by clear and convincing evidence that the agency would have removed the appellant in the absence of his disclosures. The doctrine of equitable estoppel is inapplicable . ¶63 The appellant also argues on review that the agency is equitably estopped from removing him because it did not propose his removal until 4 months after he resumed administrative leave in November 2014, and no one suggested that he was still required to sub mit medical documentation in support of his October 2014 leave request or that his failure to submit this documentation several months after he returned to administrative leave would jeopardize his employment status. PFR File, Tab 5 at 25-27. He asserts that he reasonably relied on “the state of affairs” and believed that the October 2014 leave dispute was superseded by his return to administrative leave. Id. at 26. ¶64 An appellant must show affirmative misconduct by government agents leading to unfairness in order to establish equitable estoppel against the government. See Hanson v. Office of Personnel Management , 833 F.2d 1568 , 1569 (Fed. Cir. 1987) . The appellant has prese nted no evidence that the agency intentionally misled him into believing that he was no longer subject to discipline 10 Although th e administrative judge did not address the appellant’s whistleblower reprisal affirmative defense until after he determined that removal was a reasonable penalty, we find that any error in that regard does not provide a basis for disturbing the initial dec ision, as the result would be the same in either case. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (holding that an adjudicatory error that is not prejudicial to a party ’s substantive rights provides no basis for reversal of an initial decision). 25 for being AWOL, nor did the agency ever affirmatively state that it no longer intended to propose the appellant’s removal. In fact, the ag ency informed him in a letter that he could be disciplined for failure to submit documentation supporting a request for sick leave. W-2 AF , Tab 18 at 27 -28. Moreover, an agency’s failure to take disciplinary action in the past does not give an appellant a reasonable basis to assume that the agency will not take action, nor does it impose an obligation on the agency to give advanced notice of any proposed action. Egleberry v. Department of the Air Force , 27 M.S.P.R. 217, 218 -19 (1985). Therefore, we find that the doctrine of equitable estoppel does not apply here. The administrative judge properly found that the agency proved nexus between the charged misconduct and the efficiency of the service, and that the removal penalty was reasonable. ¶65 The Board has held that sustained charges of AWOL and failure to follow instructions are inherently connected to the efficiency of the service. See Arche rda v. Department of Defense , 121 M.S.P.R. 314 , ¶ 24 (2014); Adams v. Depar tment of Labor , 112 M.S.P.R. 288 , ¶ 8 (200 9). Thus, the administrative judge properly found that the agency established nexus between the sustained charges and the efficiency of the service. ID at 28. ¶66 Whe n all of the charges are sustained , the Board will modify an agency’s chosen penalty only if the agency failed to weigh the relevant factors or if the agency’s decision clearly exceeded the limits of reasonableness. Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981). The Board places primary importance upon the nature and seriousness of the offense and its relation to the appellant’s duties, position, an d responsibilities. Rackers v. Department of Justice , 79 M.S.P.R. 262 , 282 (1998), aff’d , 194 F.3d 1336 (Fed. Cir. 1999) (Table). The Board has recognized that being AWOL is a serious offense that warrants a severe penalty. Young v. U.S. Postal Service , 79 M .S.P.R. 25 , 39 (1998). 26 ¶67 The decision letter and the deciding official’s written Douglas factors analysis demonstrate that he considered the relevant Douglas factors in making his penalty determination, including the seriousness of the offense and the appell ant’s job level. I-1 IAF, Tab 9 at 2 3-27, 36-38. The deciding official found that the appellant’s misconduct was serious and that, as a senior -level employee , the appellant was held to a higher standard. Id. at 23-24, 36. The deciding official also found the appellant’s rehabilitation potential an aggravating factor, as the appellant had failed to acknowledge wrongdoing or accept responsibility for his actions . Id. at 26, 37. The deciding official considered the appellant’s lengthy service, the abs ence of prior discipline, and his past acceptable performance as mitigating factors, but found that they were insufficient to outweigh the seriousness of his misconduct. Id. at 24, 37. ¶68 In assessing the reasonableness of the penalty, the administrative jud ge found that the deciding official properly weighed the relevant factors in determining that removal was an appropriate penalty , and that his decision to remove the appellant was reasonable . ID at 30. Recognizing that the Board must accord proper defere nce to the agency’s primary discretion in managing its workforce, we see no reason to disturb this finding. See Douglas , 5 M.S.P.R. at 306. Thus, we find that the administrative judge properly sustained the appellant’s removal. NOTICE OF APPEAL RIG HTS11 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 11 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights i ncluded in final decisions to provide a comprehensive summary of all available review options. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 27 your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described belo w do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that f orum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 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 28 relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, cost s, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed thro ugh the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 29 Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your d iscrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washi ngton, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW 12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and you wish to challenge the Board’s rulings on your whistleblower claims only, excluding all other issues , then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 30 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	YEKSIGIAN_MICHAEL_J_DC_1221_17_0767_W_2_FINAL_ORDER_2043972.pdf	2023-06-26	null	S	NP
2,987	https://www.mspb.gov/decisions/nonprecedential/JOHNSON_JACINTH_CH_0752_17_0416_I_1_FINAL_ORDER_2044088.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JACINTH JOHNSON, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER CH-0752 -17-0416 -I-1 DATE: June 26, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Andrew Kim , Esquire, Atlanta , Georgia , for the appellant . Trevor J. Smothers , Esquire, Fort Leonard Wood, Missouri, 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 affirmed her removal for failure to meet a condition of employment. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneo us 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 nonpreceden tial orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or i nvolved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Co de of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis unde r section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, except as expressly MODIFIED to set forth the proper standard for evaluating an affirmative defense of retaliation for pro tected equal employment opportunity (EEO) activity. BACKGROUND ¶2 The appellant was removed from her position as a GS -9 Victim Advocate, Sexual Harassment Response Program (SHARP) for failure to meet a condition of employment. Initial Ap peal File (IAF), Tab 1 at 7 -8. The appellant had served as a Victim Advocate for approximately 3 years, at agency posts in Fort Leonard Wood, Missouri , and in South Korea. IAF, Tab 13 at 402 -05. An individual holding the Victim Advocate position is required to maintain a D epartment of Defense Sexual Assault Advocate Certification Program (D -SAACP) certification, which requires recertification every 2 y ears. IAF, Tab 13 at 200, 274-88. Part of the recertification application requires a recommendation from a supervisor atte sting to the individual’s “moral character, professional abilities and willingness to perform the duties” of the position. IAF, Tab 7 at 24. ¶3 In April 2017, the appellant’s first -level supervisor proposed the appellant’s removal for failure to maintain a D-SAACP certification, a condition of her employment . IAF, Tab 13 at 200 -02. The supervisor previously had notified the appellant verbally and in writing that she was unable to sign the necessary 3 recommendation because she could not attest that the appellant possessed the requisite professional abilities and willingness to perform the duties of the position . Id. at 207 -08, 236 -37. The appellant’s D -SAACP certification expired in Februa ry 2017. IAF, Tab 7 at 18 -19. The appellant replied to the propos ed removal in writing. IAF, Tab 13 at 22 -194, Tab 27, Tab 32, Initial Decision (ID) at 3 n.2. The deciding official sustained the proposed removal, finding that the appellant did not hold the required certificatio n and that removal promoted the efficiency of the service. IAF, Tab 13 at 13 -21. ¶4 The appellant timely appealed her removal with the Board. IAF, Tab 1. After holding a hearing, the administrative judge issued an initial decision affirming the agency’s re moval of the appellant for failure to meet a condition of employment. ID at 2, 22. The administrative judge found that the agency had proven its charge by preponderant evidence,2 that there was a clear nexus between the charge and the efficiency of the s ervice, and that the appellant’s removal was a reasonable penalty. ID at 5 -12, 19 -21. The administrative judge found that the appellant failed to show by preponderant evidence that retaliation for her prior EEO activity was a motivating factor in her rem oval. ID at 13 -19. ¶5 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a response opposing the petition. PFR File, Tab 4. DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge correctly sustained the charge. ¶6 To sustain a charge of failure to fulfill a condition of employment, the agency must prove the following by preponderant evidence : (1) the requirement at issue is a condition of employment ; and (2) the appellant failed to meet that 2 A preponderance of the evidence is that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q). 4 condition. See Thompson v. Department of the Air Force , 104 M.S.P.R. 529 , ¶¶ 9-10 (2007). Absent evidence of bad faith or pat ent unfairness, the Board defers to the agency’s requirements that must be fulfilled for an individual to qualify for appointment to and retention in a particular position. Gallegos v. Department of the Air Force , 121 M.S.P.R. 349 , ¶ 6 (2014) (citing Thompson , 104 M.S.P.R. 529 , ¶ 9). As set forth in the initial decision, when, as in the present appeal, the employing agency controls the withdrawal or revocation of the required certification, the Board’s authority generally extends to review of the merits of that withdrawal or revocation. ID at 4 (citing Adams v. Department of the Army , 105 M.S.P.R. 50 , ¶ 10 (2007), aff’d , 27 3 F. App’x 947 (Fed. Cir. 2008)). A narrow exception exists in cases in which the adverse action is based on the withholding of a national security credential, such as a security clearance or eligibility to occupy a noncritical sensitive position. Adams, 105 M.S.P.R. 50 , ¶ 11; see Department of the Navy v. Egan , 484 U.S. 518 , 530 -31 (1988); Kaplan v. Conyers , 733 F.3d 1148 , 1166 (Fed. Cir. 2013 ) (en banc). This case does not involve considerations of national security . Accordingly, the administrative judge properly reviewed the substance of the supervisor’s decision not to sign the recommendation for the appellant’s D -SAACP renewal application. ID at 6-12. ¶7 On review, the appellant challenges the administrative judge’s finding sustaining the charge of failure to meet a condition of employment. PFR File, Tab 1. The appellant does not dispute that the Victim Advocate position requires a D-SAACP certi fication and that her certification expired. IAF, Tab 26 at 2; ID at 4; PFR File, Tab 1. Rather, the appellant contests the administrative judge’s factual findings and credibility determinations regarding her supervisor’s decision not to sign the recomme ndation for the appellant’s D-SAACP renewal application. PFR File, Tab 1 at 14-21; IAF, Tab 13 at 207-08. The appellant asserts that the administrative judge erred in not discussing certain relevant topics in detail in the initial decision. PFR File, Ta b 1 at 15-21. 5 ¶8 As discussed in the initial decision, the notice of proposed removal and earlier notice of intent not to sign the recommendation identified the following reasons for the supervisor’s decision: (1) unwillingness to dedicate duty hours on evenings and weekends as required by her position; (2) failure to meet the shared responsibility of knowledge of current cases in the SHARP program when covering for team members on leave; (3) poor communication skills with SHARP team members; and (4) handli ng of a December 2016 case in which a victim sought assistance from the SHARP program . IAF, Tab 13 at 200-02, 207 -08; ID at 5 -6. The appellant ’s arguments on review focus primarily on the December 2016 incident . PFR File, Tab 1 at 15 -18. She argues tha t the administrative judge failed to consider the lack of an official complaint card regarding the alleged dissatisfaction communicated to SHARP personnel by the victim’s family member and the circumstances surrounding the appellant’s “handoff” of the vict im to other agency personnel . Id. The appellant also argues that the administrative judge failed to consider that she had only been in her position at Ford Leonard Wood for a few months and that another SHARP team member was out on leave for an extensive period. Id. at 18 -20. Finally, she maintains that the administrative judge did not address the fact that the supervisor did not issue the notice of intent not to sign the recommendation until after the deadline for the D -SAACP renewal application had passed. Id. at 20. ¶9 Having considered the appellant’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 ass essment 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 (19 97) (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) 6 (holding that the Board may overturn credibility determinations only when it has “sufficiently sound” reasons for doing so). The administrative judge’s failure to discus s in depth all aspects of the documentary evidence and hearing testimony regarding the December 2016 incident and the appellant’s communication issues with SHARP personnel does not mean that she did not consider them and is not a basis to overturn her 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). ¶10 The administrative judge properly sustained by preponderant evidence the agency’s charge of failure to fulfill a condition of employment. ID at 12. Regarding the December 2016 victim incident, the administrative judge found it “more prob able than not that the agency’s version of events occurred.” Id. In finding that the testimony of the three agency witnesses from the SHARP program supported the supervisor’s refusal to sign the recommendation due to the concerns listed above, the admini strative judge applied the appropriate factors set forth in Hillen v. Department of the Army , 35 M.S.P.R. 453 , 460 (1987) , and made rea sonable credibility determinations based on a review of the record as a whole . ID at 11-12; Hearing Transcript at 16-23, 38 -45, 86 -94, 117 -19; see Haebe , 288 F.3d at 1302 . The appellant asserts that the agency must prove by preponderant evidence the appropriateness of the refusal to sign the D -SAACP renewal recommendation. PFR File, Tab 1 at 21-22. We assume for purposes of this decision that preponderant evidence is the proper standard of review. Cf. Adams , 105 M.S.P.R. 50 , ¶ 19 (finding that the agency “acted reasonably ” in denying the appellant access to its computer system, a condition of employment under the agency’s control). Nevertheless , we see no reason to disturb the administrative judge’s finding that the agency proved by preponderant evidence the circumstances of the December 2016 victim incident, a central issue in th e supervisor’s decision not to sign the recommendation due to concerns regarding the appellant’s “professional abilities and willingness to perform the duties” of 7 the Victim Advocate position . ID at 12; IAF, Tab 7 at 24; see Crosby , 74 M.S.P.R. at 105 -06; Broughton , 33 M.S.P.R. at 359. ¶11 The appellant does not challenge, and we discern no reason to disturb , the administrative judge’s well -reasoned findings that the agency proved the other elements of this action by preponderant evidence —specifically, that there was a clear nexus between the appellant’s failure to maintain a D-SAACP certification, a condition of employment for the Victim Advocate position, and the efficiency of the service and that removal was a reasonable penalty . ID at 19 -21; PFR File, Tab 1. The administrative judge’s discussion of the appellants’ prima facie case of EEO retaliation is modified to reflect the correct standard for evaluating an affirmative defense of retaliation for protected EEO activity. ¶12 The appellant does not challenge the administrative judge’s finding that she failed to prove her affirmative defense of retaliation for protected EEO activity. ID at 18-19. However, we modify the administrative judge’s findings on the appellant’s EEO retaliations claims t o apply the standards as set forth in recent law. An appellant may prove a claim of discrimination based on age, race, color, religion, sex, or national origin under the motivating factor standard, in other words, by proving that prohibited discrimination played “any part” in the contested action. Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 20-22. Claims of ret aliation for opposing discrimination in violation of Title VII are analyzed under this same framework. Desjardin v. U.S. Postal Service , 2023 MSPB 6 , ¶ 32; Pridgen , 2022 MSPB 31 , ¶ 30. However, a but -for causation standard is applicable to retaliation claims based on activity protected under the Americans with Disabilities Act (ADA), as amended by the Americans with Disabilities Act Amendments Act of 2008. Desjardin , 2023 MSPB 6 , ¶ 33. An appellant may prevail on such a claim by showing that retaliation was a but-for cause of the agency’s action. Desjardin , 2023 MSPB 6 , ¶ 33; Pridgen , 2022 MSPB 31 , ¶¶ 44-47. The but -for standard is more stringent than the 8 motivating factor standard. Desjardin , 2023 MSPB 6 , ¶ 31; Pridgen , 2022 MSPB 31, ¶ 47. ¶13 Here, it is not clear whether the appellant ’s prior EEO activity was based on Title VII or on the ADA. The administrative j udge, applying the mixed -motive analysis, found that the appellant failed to show that retaliation was a motivating factor in the agency’s decision to remove her. ID at 13 -14, 18-19; see Desjardin , 2023 MSPB 6 , ¶ 33; Pridgen , 2022 MSPB 31 , ¶¶ 33, 47. We see no error in this finding, particularly in the absence of any challenge by the appellant on review . Therefore, to the extent that the appellant claims retaliation for prior EEO activity based on Title VII, she has not proven her claim. To the exten t the appellant claims retaliation for prior EEO activity based on the ADA, her failure t o meet the lesser burden of proving that her protected activity was a motivating factor in her removal necessarily means that she failed to meet the more stringent but-for standard . See Desjardin , 2023 MSPB 6 , ¶ 33. For these reasons , we conclude that the appellant failed to prove this a ffirmative defense. ¶14 Accordingly, we deny the petition for review and affirm the initial decision. NOTICE OF APPEAL RIGHTS3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described below do not represent a statement of how courts will rule 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 adv ise which option is most appropriate in any matter. 9 regarding which cases fall within their jurisdiction. If yo u wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of you r case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circu it, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appea ls for the Federal Circuit, you must submit your petition to the court at the fo llowing address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protect ion Board appellants before the Federal Circuit. The 10 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discri mination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of th is decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs , or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed thro ugh the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your d iscrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 11 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washi ngton, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW 12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no chal lenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review e ither 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 circui t court 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 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit , you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor war rants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	JOHNSON_JACINTH_CH_0752_17_0416_I_1_FINAL_ORDER_2044088.pdf	2023-06-26	null	CH-0752	NP
2,988	https://www.mspb.gov/decisions/nonprecedential/PUCCIARIELLO_CARMINE_J_AT_1221_16_0718_W_1_FINAL_ORDER_2044151.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CARMINE J. PUCCIARIE LLO, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency. DOCKET NUMBER AT-1221 -16-0718 -W-1 DATE: June 26, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Carmine J. Pucciariello , Punta Gorda, Florida, pro se. William P. Vines , Esquire, College Park, Georgia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant ha s filed a petition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction because he did not exhaust his administrative remedy with the Office of Special Counsel (OSC). Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the la w to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of t he case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review . Except as expressly MODIFIED to find that the appellant failed to prove by preponderant evidence that he exhausted his remedies with the Office of Special Counsel (OSC), instead of that he failed to “nonfrivolously allege” that he sat isfied the exhaustion requirement, we AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant, who was employed by the agency as an Aviation Safety Inspector, retired in 1999 as a part of a settlement agreement in an Equal Employment Opportunity Commission matter. Pucciariello v. Department of Transportation , MSPB Docket No. AT -1221 -16-0718 -W-1, Initial Appeal File (IAF), Tab 5, Subtabs 4c, 4d. Pursuant to the settlement agreement, the agency agreed to issue the appellant a Designated Airworthiness Representative (DAR) authorization,2 which he could renew if he satisfied all regulato ry requirements or 2 Pursuant to authority delegated by the Federal Aviation Administration, a DAR issues certific ates identifying aircraft as airworthy and conducts inspections, testing, and examinations necessary to issue such certificates. Pucciariello v. United States , 116 Fed. Cl. 390, 395 -96 (2014); see 49 U.S.C. § 44702 (d)(1) (2010); 14 C.F.R. § 183.33 . 3 was otherwise qualified to hold the DAR. Id., Subtab 4d. On January 25, 2012, the agency terminated the appellant’s DAR authorization. Id., Subtab 4a. ¶3 On or around June 26, 2015, the appellant filed an IRA appeal, in which he allege d retaliation for whistleblowing activity. Pucciariello v. Department of Transportation , MSPB Docket No. AT -1221 -15-0646 -W-1, Initial Appeal File (0646 IAF), Tab 8. The appellant withdrew the appeal during a telephonic conference call, and the administra tive judge dismissed the appeal as withdrawn. Id. at 1-2. The administrative judge advised the appellant that in order to file another IRA appeal, he would need to await the issuance of a closure letter by OSC or the passage of 120 days from his filing w ith OSC. Id. at 2 n.2. ¶4 In August 2016, the appellant filed the instant IRA appeal asserting that the agency terminated his DAR authorization in reprisal for whistleblowing activity. IAF, Tab 1. He did not request a hearing. Id., Subtab B at 1 -a. Th e administrative judge issued an order on jurisdiction and proof requirements, IAF, Tab 3, but the appellant did not submit a response. The agency filed a motion to dismiss arguing, among other things, that the appellant failed to exhaust his administrati ve remedy with OSC. IAF, Tab 5, Subtab 1. The administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 7, Initial Decision (ID) at 1, 3. In pertinent part, he found that the appellant failed to “nonfrivolously allege ” that he exhausted his OSC remedy. ID at 3. He noted that he was dismissing the appeal without prejudice and, thus, the appellant could file a new IRA appeal on the same subject matter after he exhausted his OSC remedy. ID at 3 n.3 . ¶5 The appellant has filed a petition for review claiming that he exhausted his administrative remedy with OSC. Petition for Review (PFR) File, Tab 1 at 1, 11. His petition also includes a motion to strike the agency’s first set of interrogatories, requ est for production of documents, and request for admissions. Id. at 12. The agency has not filed a response. 4 DISCUSSION OF ARGUME NTS ON REVIEW ¶6 The Board has jurisdiction over an IRA appeal if the appellant has exhausted his administrative remedies before OSC and makes nonfrivolous allegations that (1) he engaged in whistleblowing activity by making a protected disclosure, and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action. Yunus v. Departm ent of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001).3 ¶7 Under 5 U.S.C. § 1214 (a)(3), an employee is required to “seek corrective action from [OSC] before seeking corre ctive 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). The substantive requirements of exhaustion are met when an appellant has provided OSC with a sufficient basis to pursue an investigation. Chambers v. Department of Homeland Security , 2022 MSPB 8 , ¶ 10. The Board’s jurisdiction over an IRA appeal is limited to those issues that have been previously raised with OSC, but appellants may give a more detailed account of their whistleblowing activities before the Board than they did to OSC. Id. Appellants may demonstrate exhaustion of their OSC remedies with evidence regarding their initial OSC complaint and other commu nications with OSC concerning their allegations. See Baldwin v. Department of Veterans Affairs , 113 M.S.P.R. 469, ¶ 8 (2010). The appellant also must show either (a) OSC has notified him “that an investigation concerning [him] has been terminated” and “no more than 60 days have elapsed since notification w as provided” to him, or (b) 120 days have elapsed since the appellant sought corrective action from OSC and he “has not been notified by 3 The termination of the appellant’s DAR authorization occurred before the December 27, 2012 effective date of the Whistleblower P rotection Enhancement Act of 2012 (WPEA). Pub. L. No. 112 -199, § 202, 126 Stat. 1465, 1476. Even if we considered the WPEA amendments in our analysis of this matter, a different outcome would not be warranted. Moreover, we have reviewed the relevant leg islation enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. 5 [OSC ] that [it] shall seek corrective action on [his] behalf. ” 5 U.S.C. § 1214 (a)(3); Wells v. Department of Homeland Security , 102 M.S.P.R. 36 , ¶ 6 (2006). ¶8 First, t he appellant must prove exhaustion of his remedies before OSC by preponderant evidence , not mak e a nonfrivolous allegation of exhaustion , as the administrative judge found in his initial decision . Mason v. Department of Homeland Security , 116 M.S.P.R. 135 , ¶ 9 (2011). However, the administrative judge notified the appellant of the appropriate burden of proof in his order on jurisdiction and proof requirements, IAF, Tab 3 at 2, and referenced the appropriate standard in the init ial decision, ID at 2 . Thus, because the appellant was on notice of the correct burden of proof and we have applied that burden in considering the issue herein, we find this error to be harmless . 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 the appellant’s substantive rights provides no basis for rever sing an initial decision). ¶9 On review, the appellant asserts that he filed a complaint with OSC, but the “file” was “returned” to him. PFR File, Tab 1 at 1. He submits one page of what seems to be a multi -page letter, dated June 26, 2015, that was address ed to the Office of Inspector General, OSC, and the Board’s Atlanta Regional Office. Id. at 11. The “subject” of the letter is labeled “Whistleblower Protection [A]ct,” and he alleges therein that the agency engaged in, among other things, an abuse of power, a denial of due process, and a denial of the rule of law. Id. ¶10 The appellant’s June 26, 2015 letter was available prior to the close of record below. However, because his letter may be relevant to the issue of Board jurisdiction, a matter that may be raised at any time, Pirkkala v. Department of Justice , 123 M.S.P.R. 288 , ¶ 5 (2016), we have considered it. We find that the page of the letter the appellant provided is insufficient to prove OSC exhaustion because it does not identify any alleged disclosures or the termination of the DAR authorizatio n; instead, it only contains conclusory allegations of agency 6 wrongdoing. See Lewis v. Department of Army , 58 M.S.P.R. 325 , 332 (1993) (Whistleblower Protection Act requires that complaint seeking corrective action from the Special Counsel state both the “personnel action” and the “disclosure of information” at issue ); see also Ellison v. Merit Systems Protection Board , 7 F.3d 1031 , 1036 (Fed. Cir. 1993) (holdin g that the test of the sufficiency of an employee’s charges of whistleblowing to OSC is the statement that he makes in the complaint requesting corrective action, not his post hoc characterization of those statements). Accordingly, we find that the letter did not provide OSC with information sufficient to pursue an investigation into any allegation that the agency had taken any retaliatory personnel action against the appellant . Because the appellant’s letter is insufficient to prove OSC exhaust ion, we find that it does not warrant an outcome different from that in the initial decision.4 Miller , 122 M.S.P.R. 3 , ¶ 18. ¶11 The record reflects that, on the same day that the initial decision was issued, the appellant filed a motion for extra time to respond to the agency’s motion to dismiss. IAF, Tab 9. Because the appellant is not an e -filer, we presume that he was unaware of the issuance of the initial decision. We have reviewed the appellant’s motion, but we find that none of its contents would change the outcome of this matter on review. See 5 C.F.R. § 1201.115 (explaining the Board’s criteria for granting a petition for review). Accordingly, we deny the appellant’s motion. ¶12 The appellant’s petition for review also includes a motion to strike the agency’s discovery requests. PFR File, Tab 1 at 2, 12 . Issues relating to discovery must be raised before the administrative judge or they are precluded on review. Smith v. Office of Personnel Management , 31 M.S.P.R. 406 , 409 -10 4 The administrative judge alternatively found that the appellant, as a DAR, was not an agency employee or an applicant for employme nt who could be subjected to a personnel action for purposes of the whistleblower protection statutes. ID at 3. The appellant does not appear to challenge this finding on review. Because we find t hat the appellant has not proven exhaustion with OSC, we need not address this issue. 7 (1986). Be cause it does not appear that the appellant raised this issue before the record closed below, we deny t his motion. NOTICE OF APPEAL RIG HTS5 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 obta in review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your s ituation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a gener al rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decisio n. 5 U.S.C. § 7703 (b)(1)(A). 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropr iate in any matter. 8 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevanc e is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by a ny attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appr opriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the d istrict court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 9 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to represen tation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, whi ch can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Comm ission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 10 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial pet ition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 deci sion. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower 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. 11 Board neither endorses the services p rovided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk o f the Board	PUCCIARIELLO_CARMINE_J_AT_1221_16_0718_W_1_FINAL_ORDER_2044151.pdf	2023-06-26	null	AT-1221	NP
2,989	https://www.mspb.gov/decisions/nonprecedential/GREEN_GLORIA_D_AT_844E_22_0166_I_1_FINAL_ORDER_2044171.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD GLORIA D. GREEN, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER AT-844E -22-0166 -I-1 DATE: June 26, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Gloria D. Green , Selma, Alabama, pro se. Heather Dowie , 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 affirmed the reconsideration decision of the Office of Personnel Management (OPM) denying her application for a disability retirement annuity under the Federal Employees’ Retireme nt System (FERS). For the reasons discussed 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 below, we GRANT the appellant’s petition for review , REVERSE the initial decision and OPM’s reconsideration decision , and ORDER OPM to award a disability retirement annuity to the a ppellant . BACKGROUND ¶2 The appe llant worked for the U.S. Army Corps of Engineers (COE) from August 7, 2017, until she resigned effective March 13, 2021. Initial Appeal File (IAF), Tab 5 at 29, 42 . At the time of her resignation, she was an Administrative Support Assistant at COE’s Hydropower Branch in Mobile, Alabama . Id. at 42 . Her duties included providing clerical and ad ministrative support in matters such as timekeeping, purchasing/ procurement, supply management, travel, personnel management , and inventory control . Id. at 52 . On March 4, 2021 , she applied for disability retirement under FERS based on major depression and anxiety. Id. at 31, 35 . ¶3 According to the appellant’s medical documentation, she has suffered from anxiety since at least 2005. Id. at 107. In 2013, the Department of Veterans Affairs determined that the appellant had a service -connected disability rating of 50% for major depressive disorder , effective September 2003. Id. at 72. According to the appellant, her mental conditions negatively affect her concentration and cause her to have paranoid thoughts and experience heart palpitations, chest pain, and headaches, which resulted in a 17 -day stay at a VA psychiatric hospital in 2019 . Id. at 17, 31 . She further notes that her conditions worsen when she is under increased stress, despite her continuous treatment and taking medication. Id. at 31. ¶4 OPM issued a reconsideration decision, denying the appellant’s application for a disabil ity retirement annuity . Id. at 4 -6. The appellant filed this appeal o f OPM’s reconsideration decision and requested a hearing. IAF, Tab 1. After the appellant failed to submit prehearing submissions and attend the prehearing conference, and failed to provide responsive information to an order to show 3 cause, the administra tive judge cancelled the hearing and issued a close -of-record order. IAF, Tabs 11, 14. Following the appellant’s response, the administrative judge issued an initial decision that affi rmed OPM’s decision. IAF, Tab 15, Initial Decision (ID) at 2 , 6. She reasoned that the appellant did not show that her depression and anxiety were disabling conditions . ID at 4-6. She found that it was undisputed that the appellant completed 18 months of civilian service under FERS , suffered from depression and anxiety for many years and those conditions were expected to continue throughout her lifetime , and that the agency was unable to accommodate or reassign her. ID at 4. ¶5 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. OPM has filed a response. PFR File, Tab 3. DISCUSSION OF ARGUME NTS ON REVIEW ¶6 In an appeal from an OPM decision on a voluntary disability retirement application, the a ppellant bears the burden of proof by preponderant evidence. Thorne v. Office of Personnel Management , 105 M.S.P.R. 171 , ¶ 5 (2007 ); 5 C.F.R. § 1201.56 (b)(2)(ii). To be eligible for a disability retirement annuity under FERS, an employee must show the following: (1) she completed at least 18 months of creditable c ivilian service; (2) while employed in a position subject to FERS, she became disabled because of a medical condition, resulting in a deficiency in performance, conduct, or attendance, or, if there is no such deficiency, the disabling medical condition is incompatible with either useful and efficient service or retention in the position; (3) the condition is expected to continue for at least 1 year from the date that the application for disability retirement benefits was filed; (4) accommodation of the disa bling medical condition in the position held must be unreasonable; and (5) she did not decline a reasonable offer of reassignment to a vacant position. 5 U.S.C. § 8451 (a); Thorne , 105 M.S.P.R. 171 , ¶ 5; 5 C.F.R. § 844.103 (a). 4 ¶7 The administrative judge found , and the parties do not dispute on review, that the appellant met the 18 -month service requirement under FERS at the time she filed her application , that her conditions were expected to continue for 1 year from that date , that providing her an accommodati on in her position was unreasonable, and that she did not decline a reasonable offer of reassignment to a vacant position. ID at 4; IAF, Tab 5 at 27-28, Tab 15 at 8 -9. We decline to disturb those findings. T he administrative judge affirmed OPM’s denial of the appellant’s disability retirement appeal on the basis that the appellant failed to prove that she had a disabling medical condition. ID at 4 -6; see Thorne , 105 M.S.P.R. 171 , ¶ 5. We disagree. ¶8 There are two ways to meet the statutory requirement that the employee “be unable, because of disease or injury, to render useful and efficie nt service in the employee’s position.” Jackson v. Office of Personnel Management , 118 M.S.P.R. 6, ¶¶ 6 -7 (2012) ( quoting 5 U.S.C. §§ 8337 (a), 8451(a)(1)(B) ). First, an appellant can establish that the medical condition caused a deficiency in performance, attendance, or conduct by showing that her medical condition affects her ability to perform specific work requirements, prevents her from being regular in attendance, or causes her to act inappropriately. Id., ¶¶ 7 -8. Alternatively, the employee can show that her medical condition is incompatible with either useful and eff icient service or retention in the position by showing that it is inconsistent with working in general, in a particular line of work, or in a particular type of work setting. Id. ¶9 The administrative judge found that the appellant failed to demonstrate that her depression and anxiety caused deficiencies in her performance, conduct , or attendance. ID at 4-6. The administrative judge also concluded that the appellant failed to establish that her medical condition was incompatible with useful or efficient service; however, she did not explain her reasoning . ID at 6 . Because we disagree with the administrative judge and find that the appellant did demonstrate that her depression and anxiety caused deficiencies in at least her 5 performance and attendance , we need not reach the issue of whether her medical condition s were inconsistent with working in general, in a particular line of work, or in a particular type of work setting .2 The administrative judge erred in finding that the appellant failed to establish that her medical conditions caused a deficiency in performance and attendance. ¶10 In concluding that the appellant had failed to estab lish that her medical condition s caused a d eficiency in performance, conduct, or attendance, the administrative judge acknowledged that the appellant’s depressive paranoid behaviors impacted her work. ID at 6. However, she found that absent additional medical evidence from the appellant, she c ould not conclude that the appellant was disabled by her conditions. Id. This determination was in error. ¶11 Although objective medical evidence must be considered if available , such evidence is not required to establish disability. Confer v. Office of Pers onnel Management , 111 M.S.P.R. 419 , ¶ 9 (2009) (citing Vanieken -Ryals v. Office of Personnel Management , 508 F.3d 1034 , 1040 -44 (Fed. Cir. 2007)). The Board will consider all pertinent evidence in determining an appellant’s entitlement to disability retirement: objective clinical findings, diagnoses and medical opinions, 2 On review, the appella nt alleges for the first time that she also suffered from a “sleep disorder (Obstructive Sleep Apnea), ” which negatively affected her performance of her job duties. PFR File, Tab 1 at 5 . Other than this allegation and general claims in the record below that she does not sleep well, there is no evidence in the record related to a sleep apnea condition. The appellant also did not include it in her disability retirement applica tion. IAF, Tab 5 at 31. Generally, the Board will not consider evidence relating to a different or additional medical condition that was not the subject of the appellant’s application to OPM. Rozar v. Office of Personnel Management , 61 M.S.P.R. 136 , 140 (1994). An exception to this general rule exists if there is sufficient evidence that the newly raised condition was related to the condition on which the application was based and, thus, is not a totally different or additional condition. Gardner v. Office of Perso nnel Management , 91 M.S.P.R. 391 , ¶ 11 (2002) (citing Chappell v. Office of Personnel Management, 79 M.S.P.R. 302 , ¶ 6 (1998 )). Because we conclude, below, that the appellant has proven that her depression and anxiety were disabling, we decline to make a findi ng regarding whether the appellant’s sleep apnea is related to those conditions. 6 subjective evidence of pain and disability, and evidence relating to the effect of the applicant’s condition s on her ability to perform the duties of her position. Henderson v. Office of Personnel Management , 117 M.S.P.R. 313 , ¶ 19 (2012) . Nothing in the law mandates that a single provider tie all of this evidence together. Id. Fo r example, if the medical provider sets forth clinical findings, a diagnosis, and a description of how the medical condition affects the appellant’s activities in general terms, the Board could consider that evidence, together with the appellant’s subjecti ve account of how the condition has affected her ability to do her job and her daily life, testimony or statements from supervisors, co-workers, family members, and friends, and the appellant’s position description to conclude that the appellant’s medical conditions were disabling . Id. ¶12 Considering the evidence as a wh ole, we find that the appellant’ s medical history does roughly correlate with her performance and attendance deficiencies. The appellant alleged that her depression and anxiety caused her t o have paranoid thoughts that affected her ability to concentrate at work and miss deadlines, resulting in performance deficiencies. IAF, Tab 5 at 17; PFR File, Tab 1 at 5. In her disability retirement application, she explains that she believed that her coworkers and supervisors were “plotting” and “scheming” against her. IAF, Tab 5 at 31. She claims that her supervisors would have “people” communicate with her “only to gain information to conspire and use it against [her].” Id. They would then “twist” things she said in an effort to “breakdown her relationship[s] and isolate [her]” in order to “frame [her] in a work related crime, and VA fraud.” Id. She describes that as a result of these thoughts she “spiraled out of contro l and feared for [her] life [when] traveling to work and at work .” Id. For example, on April 23, 2019 she left work because she believed she was in “emanate [sic] danger,” called ONSTAR vehicle security as she drove to a safe place, and was then admitted to a VA Psychiatric Hospital until May 10, 2019. Id. at 17. ¶13 The appellant’s medical records corroborate that she was admitted to the VA Medical Center during this 17 -day period and recommended not to return to 7 work for an additional week, until she was medically cleared. Id. at 111. Indeed, according to her supervisor, following her hospitalization , the appellant was not able to return to work until September 23, 2019. Id. at 30. Similarly, the appellant’s daughter’ s statement further corroborates t hat the appellant’s depression with psychotic features began to worsen in early 2019. IAF, Tab 15 at 10. The daughter describes an incident where she accidentally turned the gas stove on and the appellant thought “someone else had come in to do it intent ionally.” Id. She claims that the appellant made repeated statements about “feeling ‘unsafe’ being ‘way out there in the woods,’” referring to her remote work location. Id. Her daughter also claims that the appellant was so fearful of her well -being th at she would send pictures of herself “to show her clothing” before heading to work in the morning. Id. ¶14 The record reflects that during early 2020, at the beginning of the COVD -19 pandemic, the appellant’s depression and psychotic features improved whil e she teleworked, although according to her daughter there was “always a sense of carefulness or mistrust about coworkers and supervisors.” Id. However, the appellant’s depressive psychotic thoughts began to worsen again in the 6 months leading up to her March 2021 resignation and disability retirement application. Id. According to the appellant, around the fall of 2020 when employees were instructed to return to the office 2 days a week, the appellant came in several days, but thereafter refused to wor k in the office because she believed that her coworkers and supervisor were trying to harm her and she became fearful for her life. IAF, Tab 5 at 17. For example, she implied on one occasion that her coworkers and supervisor tried to poison her or harm her when they insisted she eat food they cooked and were “looking at [her] and smirking, as if they had done something to the food.” Id. She also claims that she believed that they turned off the camera monitor in the office parking and gate areas in order to tamper with her car, as she believed they had done on several other occasions. Id. Around 8 March 2021, she also believed she was being followed while driving home from work. IAF, Tab 1 at 11 . ¶15 The evidence described above is consistent with the medical notes from the appellant’s medical appointment s prior to and following her March 2021 resignation and application for disability retirement. On January 14, 2021, the appellant contacted her pr ovider, the Central Alabama Veterans Health Care System’s Mental Health department , requesting to speak to her doctor about changing the dosage of her antipsychotic and depression medication, Quetiapine Fumarate (whose brand name is Seroquel). IAF, Tab 5 at 96. She stated that “[t]his past month was not good for work” and that she was “having trouble focusing and concentrating on [her] work.” Id. Then , on March 18, 2021, shortly after her March 13 resignation, she again contacted her doctor to increase the dosage of her Seroquel. Id. at 95. That day , her doctor conducted a telemedicine appointment with the appellant and noted that the appellant stated that she was “not doing well, not resting . . . having a lot of problem[s] on the job, [she had] been depressed, stressed out.” Id. at 89 -90. She stated that the appellant was “having paranoid thoughts, felt that the people she worked with were plotting against her, playing games towards her well being.” Id. at 91. She further noted that the appellant “felt she was in a hostile work environment” and “she was afraid for her safety.” Id. She stated that the appellant provided an example about leaving work and thinking someone driving behind her was trying to harm her. Id. ¶16 First, the administrative jud ge determined that there was insufficient evidence to establish that the appellant’s medical condition caused a deficiency in attendance, particularly because she was able to telework effectively in the spring of 2020 during the COVID -19 pandemic. ID at 4 -5. We disagree. ¶17 There is sufficient evidence to conclude that the appellant’s absences were due to her medical conditions. A ccording to her supervisor’s statement, the appellant’s attendance deficiencies began in April 22, 2019, which correlates with 9 her hospitalization and resulting inability to work until September 23, 2019 . IAF, Tab 5 at 30. The record also shows that, between April 2019 and March 2021 , the appellant used 83 hours of annual leave, 60 hours of sick leave, 860 hours of leave without pay, and was absent without leave for about 24 hours . Id. Although the exact dates and reasons for the leave are not a part of the record , given the timing invol ved, we find that the appellant’ s excessive absences were, more likely than not, at least partly attributable to her depression and anxiety . ¶18 Second, the administrative judge found that the appellant had not established a performance deficiency because, in the appellant’s response to OPM, she alleged that her performance deficiencies were due to harassment . ID at 4 ; IAF, Tab 5 at 16 . We disagree and find sufficient evidence that the appellant’s performance deficiencies were cause d by her depressive paranoid thoughts and anxiety. ¶19 For instance, in the appellant’s supervisor’s statement, she indicated that the appellant’s performance became unacceptable beginning in September 2018 . IAF, Tab 5 at 29. Indeed, the appellant’s most recent performance appraisal, covering the rating period f rom April 1, 2020 , to March 31, 2021, demonstrates that the agency rated the appellant’s performance at the lowest possible level , Unacceptable, leading up to her retirement and disability retirement application in March 2021. Id. at 55-60. Consistent wi th the appellant’s statement that her conditions affected her ability to concentrate, meet deadlines, and made her paranoid in her communications with coworkers and supervisors, her supervisor noted that the appellant’s critical elements of customer servic e and acquisition of supplies and equipment were unacceptably low, particularly due to her difficulty communicating with her supervisor and coworkers and timely placing and tracking purchase card orders. Id. at 30. Her supervisor further observes that th e appellant’s medical absences and performance deficiencies negativel y impacted the agency’s mission and work operations, and caused undue administrative burdens on other administrative personnel. Id. 10 ¶20 Lastly, the administrative judge essentially gave no weight to the appellant’s statement and her supervisor’s statements that her work deficiencies were related to her medical conditions because the appellant claimed that her work deficiencies were due to her supervisor’s harassment and her hostile work environment. ID at 4. This was error. The Board has rejected disability claims when the appellant’s conditions were largely situational, i.e. , based exclusively on her reaction to a particular workplace or in the context of what she perceives as a hostile work environment. Luzi v. Office of Personnel Management , 109 M.S.P.R. 79 , ¶ 9 (2008); Cosby v. Office of Personnel Management , 106 M.S.P.R. 487 , ¶¶ 7, 10 (2007). However, the Board has distinguished such circumstances from ones in which job -related stress precip itated and exacerbated an appellant’s condition, which was itself disabling. Kimble v. Office of Personnel Management , 102 M.S.P.R . 604 , ¶ 14 (2006) (finding t hat the appellant’s work -related stress exacerbated her depression and anxiety to the point that her condition became disabling ); Thorne , 105 M.S.P.R. 171 , ¶ 15 (finding that the appellant’ s job -related stress precipitated and exacerbated his psychiatric condition to the point that it became disabling ). Job-related stress resulting in mental impairments t hat prevent an employee from performing the duties required in her position can warrant the granting of disability retirement. Kimble , 102 M.S.P.R. 604 , ¶ 14 ; see Thorne , 105 M.S.P.R. 171 , ¶ 15 . ¶21 Here, the medical evidence and statements do not support a finding that the appellant’s depression and anxiety were a reaction to her particular workplace or harassment from her supervisor or coworkers . Rather, these conditions were apparent outside of the specific work environment at the COE , wher e she began working in 2017 . The record shows that in April 2005 the appellant experienced a similar episode of depression with psychosis including “mostly paranoid delusions concerning her job,” which also resulted in a 2 -week psychiatric intensive day t reatment program. IAF, Tab 5 at 104. The appellant’s medical notes in October and March 2020 leading up to her resignation also show that she 11 was experiencing increased anxiety and work -related stress, which exacerbate d her psychotic depression and anxie ty. Id. at 31, 90, 100. Lastly, the appellant’s most recent medical evidence from an appointment on April 22, 2022 , shows that she has continued to suffer from depression and anxiety over a year after resigning and submitting her disability retirement ap plication in March 2021. IAF, Tab 15 at 8 -9; see Bell v. Office of Personnel Management , 87 M.S.P.R. 1 , ¶¶ 18-20 (2000) (finding that the appellant’s problems with interpersonal contacts following her removal from the agency supported the conclusion that she was impaired beyond just her assignment under the supervisors who allegedly precipitated her psychiatric disorder) . Thus, we do n ot find that her depression and anxiety were situational.3 ¶22 Considering all of the evidence, we conclude that the appellant has shown by preponderant evidence that, while employed in a position subject to FERS, she became disabled from useful and efficient service. Accordingly, she has established her entitlement to a disability retirement annui ty, and we reverse the administrative judge’s initial decision and OPM’s final decision.4 ORDER ¶23 We ORDER OPM to award the appellant disability retirement. OPM must complete this action no later than 20 days after the date of this decision. 3 The administrative judge found that the appellant’s medical conditions did not result in a deficiency in conduct, without providing an explanation for her finding. ID at 6. Because we find that the appellant established that her medical conditions caused deficiencies in attendance and performance, we do not reach the question of whether they also adversely impacted her conduct. See Beeler -Smith v. Office of Personnel Manag ement , 112 M.S.P.R. 479 , ¶¶ 8 -18 (2009) (determining that an appellant proved she was disabled based solely on a performan ce deficiency). 4 Because we find that the appellant has established her entitlement to disability retirement benefits, we need not consider her remaining arguments on review that the administrative judge did not properly weigh her VA service -connected dis ability rating of 50% for major depressive disorder. PFR File, Tab 1 at 4. We also have not considered the appellant’s new evidence submitted on review. Id at 7-10. 12 ¶24 We also ORDER OPM to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and to describe the actions it took to carry out the Board’s Order. We ORDER the appellant to provide all necessary information OPM requests to help it carry out the Board’s Order. The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b). ¶25 No later than 30 days after OPM tells the appellant it ha s fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that OPM did not fully carry out the Board’s Order. The petition should cont ain specific reasons why the appellant believes OPM has not fully carried out the Board’s Order, and should include the dates and results of any communications with OPM. See 5 C.F.R. § 1201.182 (a). ¶26 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) ( 5 C.F.R. § 1201.113 (c)). ATTORNEY FEES AND COS TS 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. 13 NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to yo ur particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for 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. 14 U.S. Court of Appeals for the Federal Circ uit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Peti tioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prote ction Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in t his case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 15 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial revi ew pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 16 disposition of allega tions of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for t he 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.ms pb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 6 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 17 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept represen tation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts. gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	GREEN_GLORIA_D_AT_844E_22_0166_I_1_FINAL_ORDER_2044171.pdf	2023-06-26	null	AT-844E	NP
2,990	https://www.mspb.gov/decisions/nonprecedential/ROSS_HARVEY_DC_0752_17_0665_I_1_FINAL_ORDER_2043530.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD HARVEY ROSS, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER DC-0752 -17-0665 -I-1 DATE: June 23, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Harvey Ross , Glen Burnie, Maryland, pro se. Ladonna L. Griffith -Lesesne , Landover, Maryland, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed h is adverse action appeal for lack of jurisdiction . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available wh en the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting 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 ¶2 The appellant filed a Board appeal challenging his removal from his Mail Processing Equipment Mechanic position and other alleged adverse actions . Initial Appeal File (IAF), Tab 1 at 2. On his Board appeal form, the appellant indicat ed that he is entitled to veterans ’ preference pursuant to 5 U.S.C. § 2108 . Id. at 1. ¶3 The agency filed a motion to dismiss the appeal for lack of j urisdiction, asserting that the appellant is not a preference eligible under 5 U.S.C. § 2108 , and was not otherwise in a position that would entitle him to Board appeal rights. IAF, Tab 4. In support of its motion, the agency submitted documentation showing that the appellant served in the U.S. Navy from March 1, 1977, to July 10, 1981, a time period that generally would not qualify him for veterans’ preference under 5 U.S.C. § 2108 . Id. at 12 -14; see Alley v. U.S. Postal Service , 100 M.S.P.R. 283 , ¶ 7 (2005) (explaining that the appellant’s military service from 1977 to 1981 did not qualify her for veterans’ preference ). ¶4 The administrative judge issued an order inform ing the appellant of the requirements for establishing Board jurisdiction over his appeal and direct ing him 3 to prove that the Board has jurisdiction over his appeal or that he is entitled to a hearing on the jurisdictional issue. IAF, Tab 5. In response, the appellant argued the merits of his appeal but did not address the issue of whether he is a preference -eligible veteran. IAF, Tabs 6, 8. ¶5 Without holding the appellant’s requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID) at 1, 4. The administrative judge determined that the appellant provided no basis for finding that he is a preference eligible under 5 U.S.C. § 2108 and, therefore, failed to make a nonfrivolous allegation of Board jurisdiction . ID at 4. ¶6 The appellant has filed a petition for review , 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. Petition for Review (PFR) File, Tab s 1, 3-4. ANALYSIS ¶7 The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation . Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). A U.S. Postal Service employee has a right to appeal an adverse action to the Board if he (1) is a preference eligible, a management or supervisory employee, or an employee engaged in personnel work in other than a purely nonconfidential clerical capacity, and (2) has completed 1 year of current continuous service in the same or similar posi tions. See 39 U.S.C. § 1005 (a)(4)(A); 5 U.S.C. § 7511 (a)(1)(B)(ii); Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404 , ¶ 17 (2016). ¶8 In this case, i t is undisputed that the appellant was not a management or supervisory employee and did not engage in personnel work. IAF, Tab 4 at 10. It is also undisputed that the appellant had at least 1 year of current continuous service. Id. Accordingly, for the Board to have jurisdiction over his appeal, the appellant must be preference eligi ble. 4 ¶9 Under 5 U.S.C. § 2108 (1)(A), and § 2108 (3), an appellant may establish that he is preference eligible by showing th at he served on active duty in the armed forces during a war, in a campaign or expedition for which a campaign badge has been authorized, or during the period beginning April 28, 1952, and ending July 1, 1955. On review, the appellant contends that he is a preference eligible under these provisions because he served on active duty in the armed forces during three wars , which he identifies as follows : (1) Indian Ocean/Ira n— November 21, 1979, to October 20, 1981; (2) Iran/Yemen/Indian Ocea n— December 8, 1978, to June 6, 1979; and (3) El Salvado r—January 1, 1981, to February 1, 1992. PFR File, Tab 1 at 2. The appellant asserts that these conflicts qualify as wars for purposes of 5 U.S.C. § 2108 because Title 38 of the U.S. Code defines “period of war ” to include many non -declared wars. Id. Therefore, the appellant contends, the Board has jurisdiction over his appeal. Id. at 3. ¶10 This argument is unpersuasive. Both the Office of Personnel Management (OPM) and the Board have interpreted the term “war,” as used in 5 U.S.C. § 2108 (1)(A), to mean an armed conflict for which a declaration of war has been issued by Congress. Durand v. Environmental Protection Agency , 106 M.S.P.R. 533, ¶ 15 (2007) ; U.S. Office of Personn el Management, Vet Guide , Appendix A, https://www.opm.gov/policy -data-oversight/veterans -services/vet -guide -for-hr- professionals/ (last visited June 23, 2023 ),2 As the Board noted in Durand , the last “war” for which active duty is qualifying for veterans’ preference is World War II, and the inclusive dates for service in that war are December 7, 1941, through April 28, 1952. Durand , 106 M.S.P.R. 533, ¶ 17 (citing Vet Guide , Appendix A ). Th us, no period of the appellant’s service occurred during a war within the meaning of 5 U.S.C. § 2108 (1)(A). Therefore , the appellant is not a 2 In Appendix A of the Vet Guide , OPM also explains that, although Title 38 defines “period of war” to include many non -declared wars, such conflicts entitle a veteran to benefits under Title 38, but not necessarily to preference or service credit under Title 5. 5 preference eligible on the basis that he served on active duty in the armed forces during a war. ¶11 Because Appen dix A of OPM’s Vet Guide lists the conflicts cited by the appellant as campaigns or expeditions that qualify for veterans’ preference , we also have considered whether he is a preference eligible under 5 U.S.C. § 2108 (1)(A) on the basis that h e served in a campaign or expedition for which a campaign badge has been authorized . To qualify for veterans’ preference on this basis, the appellant must prove both that he was on active duty in the armed forces during the campaign and that he actually served in the campaign . Sellers v. U.S. Postal Service , 98 M.S.P.R. 44, ¶ 9 (2004) . Although the appellant was on active duty in the armed forces during these conflicts, he did not serve in any of them. Therefore, we conclude that the appellant has not proven that he is preference eligible under 5 U.S.C. § 2108 . Accordingly, we find that the administrative judge properly dismissed the appeal for lack of jurisdiction. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for you r situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to yo ur claims and carefully follow all 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board c annot advise which option is most appropriate in any matter. 6 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of revi ew below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a ge neral rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this deci sion. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relev ance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals f or the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided b y any attorney nor warrants that any attorney will accept representation in a given case. 7 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action t hat is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an a ppropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the di strict court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to represent ation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess 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 ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 Circu it Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any oth er circuit court 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 Feder al Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prote ction Board appellants before the 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/CourtWeb sites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ROSS_HARVEY_DC_0752_17_0665_I_1_FINAL_ORDER_2043530.pdf	2023-06-23	null	DC-0752	NP
2,991	https://www.mspb.gov/decisions/nonprecedential/PRINCE_JOSEPH_C_DE_0714_18_0403_I_1_FINAL_ORDER_2043554.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JOSEPH C. PRINCE, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DE-0714 -18-0403 -I-1 DATE: June 23, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Tyler J. Sroufe , Esquire, and Stephanie Bernstein , Esquire, Dallas, Texas, for the appellant. Patrick A. Keen , Esquire, Shreveport , Louisiana , for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which reversed the appellant’s removal. On petition for review, the agency argues that the administrative judge improperly reversed two of the three charges. Generally, we grant petition s such as this one only in the following circumstances: the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition fo r review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to make no determination as to the propriety of the administrative judge’s order of interim relief , we AFFIRM the initial decision.2 ORDER ¶2 We ORDER the agency to cancel th e removal action and to restore the appellant , effective August 15, 2018. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1 984). The agency must complete this action no later than 20 days after the date of this decision. ¶3 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Manageme nt’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 infor mation 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, 2 We need not reach this issue because , by issuance of this Order, the appellant is afforded full relief. 3 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. ¶4 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶5 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appella nt 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). ¶6 For agen cies 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 adjustmen ts 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 pay ment can be made within the 60 -day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS 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 12 01.203. If you believe you meet these requirements, you must file a motion for attorney fees 4 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 dec ision on your appeal. NOTICE OF APPEAL RIG HTS3 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 t o file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriat e for your situation an d the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applica ble to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choice s of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services p rovided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case, and your representative receives this decision before you do, then you must file 6 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for re view to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 7 (3) Judicial review pursuant to the Whistleblower Protection Enha ncement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of compete nt 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, 2 018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 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. Missin g 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) Se ttlement 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 d ocumentation. 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 u nemployment 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 rev ersed, 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 leav e ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK 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 decisi on. 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 incl ude 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 document ation 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 t he 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/Pe rsonnel Operations at 504 -255-4630.	PRINCE_JOSEPH_C_DE_0714_18_0403_I_1_FINAL_ORDER_2043554.pdf	2023-06-23	null	DE-0714	NP
2,992	https://www.mspb.gov/decisions/nonprecedential/WALDRON_SUSAN_DC_0432_18_0308_I_1_FINAL_ORDER_2043589.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SUSAN WALDRON, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER DC-0432 -18-0308 -I-1 DATE: June 23, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Susan Waldron , Velburg, Germany, pro se . Jason B. Myers , Esquire, Washington, D.C., for the agency. Jonathan Beyer , APO, AE, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which revers ed its performance -based removal action and found that it failed to show by clear and convincing evidence that it would not have removed the appellant absent her protected whistleblowing activity. On petition for review, the agency 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decis ion issued as an Opinion and 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 argues that the adminis trative judge’s credibility determinations were incomplete. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneo us interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or i nvolved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Co de of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting 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 ¶2 We ORDER the agency to cancel the appellant's removal and restore the appellant effective February 16, 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. ¶3 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, 3 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. ¶4 We further ORDER the agency to tell the appell ant 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). ¶5 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued th e 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). ¶6 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to t imely 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 APP ELLANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS 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 4 and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUE ST 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 mu st 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 y our motion with the office that issued the initial decision on your appeal. NOTICE TO THE PARTIE S 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 5 prohibited activity under investigation or for any related activity without the approval of the Special Counsel.” 5 U.S.C. § 1214 (f). NOTICE OF APPEAL 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 summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be 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 initia l decision in this matter, the Board may have updated the notice 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 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 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 t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 7 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the lin k below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receiv e this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Wash ington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5S W12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 8 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no cha llenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 “G uide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit , you may visit our 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 prov ided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file pe titions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to Nove mber 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 Board neither endorses the services provided by any attorney nor war rants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 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. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20 Pay%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 determinatio n, 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 al l 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, wor kers’ 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 au thority 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 CEN TER CHECKLIST FOR BA CK 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 (Payro ll/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 P ayment 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 (P ersonnel 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.	WALDRON_SUSAN_DC_0432_18_0308_I_1_FINAL_ORDER_2043589.pdf	2023-06-23	null	DC-0432	NP
2,993	https://www.mspb.gov/decisions/nonprecedential/RUSSELL_EDDIE_C_PH_1221_16_0301_W_2_FINAL_ORDER_2043639.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD EDDIE C. RUSSELL, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER PH-1221 -16-0301 -W-2 DATE: June 23, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Eddie C. Russell , Mt. Laurel, New Jersey, pro se. Marcus S. Graham , Esquire, Pittsburgh, Pennsylvania, for the agency. BEFORE Cathy A. Harris , Vice C hairman Raymond A. Limon , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, whic h denied his request for corrective action . 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 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 BACKGROUND ¶2 The appellant, a Certified Reg istered Nurse Anesthetist , filed an individual right of action appeal alleging that the agency terminated him during his probationary period a t the Vetera ns Affairs Medical Center in Philadelphia, Pennsylvania, in retaliation for his whistleblowing disclosures. Initial Appeal File (IAF), Tab 1. In an initial decision, t he administrative judge found that the Board h ad jurisdiction over the appe al but denied the appellant ’s request for corrective action, finding that the appellant failed to establish that his disclosures were protected under 5 U.S.C. § 2302(b)(8). IAF, Tab 22, Initial Decision (ID) at 7-9. The administrative judge informed the appellant that the initial decision would become final on November 16, 2017, unless a petition for review wa s filed by that date. ID at 14 . ¶3 The appellant filed a petition for review on November 17, 2017. Petition for Review (PFR) File, Tab 1 . In his petition, the appellant states that he attempted to file a pleading on November 16, 2017, but was unable to “ due to a computer glitch ” in the Bo ard’s e-Appeal system. Id. at 3. The Clerk of the Board informed the appellant that his petition was untimely filed because it was not postmarked or received by the Board on or before November 16, 2017. PFR File, Tab 2. The Clerk afforded the appellant the opportunity to file a motion to (1) accept the filing as timely, and/or (2) to waive the time limit for good cause shown. Id. The appellant did not respond to the Clerk’s notice . The agency has not responded to the petition for review . DISCUSSION OF ARGUMENTS ON REVI EW ¶4 A petition for review must be filed within 35 days of the issuance of an initial decision or, if the appellant shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date th e appellant received the initial decision. 5 C.F.R. § 1201.114 (e). The appellant has 3 the burden of proof regarding timeliness. See Hempel v. U.S. Postal Service , 100 M.S.P.R. 691 , ¶ 4 (2006) . ¶5 The Board may grant or deny the waiver of a time limit for filing a petition, in the interest of justice, after consideri ng all the facts and circ umstances of a particular case. Lewis v. Department of the Navy , 65 M.S.P.R. 28 , 31 (1994). To establish good caus e for an untimely filing, a party must show that he exercised due diligence or ordinary prudence under the particula r circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). To determine whether an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of his excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existe nce of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition. Moorman v. Department of th e Army , 68 M.S.P.R. 60 , 62 -63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). ¶6 The appellant has not alleged that he receiv ed the initial decision more than 5 days after it was issued. Thus, the appellant ’s petition for review, filed 36 days after the i ssuance of the October 12, 2017 initial decision, is untimely by 1 day. Although the Office of the Clerk afforded the appell ant notice that his petition for review was untimely filed and provided him with an opportunity to show good cause for the delay , the appellant failed to respond to the Clerk ’s notice. Under these circumstances, the Board has declined to find good cause f or a waive r of the filing time limit when , as here, the initial decision clearly notified the appellant of the correct time limit for filing a petition for review. See, e.g. , Smith v. Department of the Army , 105 M.S.P.R. 433 , ¶ 6 (2007) (declining to find good caus e for a 1 -day filing delay when the appellant failed to respond to the Clerk’s timeliness notice and the initial decision notified the appellant of the time limit 4 for filing a petition for review) ; Valdez v. Office of Personnel Management , 103 M.S.P.R. 88 , ¶ 7 (2006) (finding that the appellant failed to show goo d cause for a filing delay when his petition for review was not accompanied by a motion to waive the time limit and either an affidavit or sworn statement showin g good cause for his untimely filing , and the initial decision notified the appellant of the correct time limit for filing a petition for review) . While the appellant is pro se, his failure to respond to the Clerk ’s notice does not indicate that he acted with due diligence. Smith , 105 M.S.P.R. 433 , ¶ 6. ¶7 Further, the appellant did not allege facts in his petition for review to otherwi se support a finding of good cause for its untimeliness. The Board has found that the unavailability of its e -Appeal system can establish good cause for an untimely filing, especially when the party files its pleading within a short time after the e -Appea l system becomes available and the other party is unable to demonstrate that it was prejudiced by the delay. See Boykin v. U.S. Postal Service , 104 M.S.P.R. 460 , ¶¶ 5 -7 (2007 ). However, contrary to the appellant ’s assertion, we can find no instance of e-Appeal system downtime or unusual system err ors during the 24 hours of November 16, 2017 . Moreover, the Board’s e-Appeal logs do not show that the appellant accessed e-Appeal on November 16, 2017. Rather, it appears that the appellant accessed e -Appeal and created his petition for review on November 17, 2017. ¶8 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 rega rding the denial of corrective action . 5 NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of ho w courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Fail ure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have qu estions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washi ngton, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court ’s website, www.cafc.uscourts.gov. Of particular relevance is the court ’s “Guide for Pro Se Petitioners and Appellants, ” which is contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/prob ono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calen dar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer a nd to waiver of any 7 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC ’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). 8 If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice descri bed in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of c ompetent 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 Rul es of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding p ro 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 2 7, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Fed eral Circuit or any other circuit court 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 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact informat ion for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	RUSSELL_EDDIE_C_PH_1221_16_0301_W_2_FINAL_ORDER_2043639.pdf	2023-06-23	null	PH-1221	NP
2,994	https://www.mspb.gov/decisions/nonprecedential/KNOX_WINNETT_DA_0752_22_0199_I_1_REMAND_ORDER_2043060.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD WINNETT KNOX, Appellant, v. DEPARTMENT OF JUSTIC E, Agency. DOCKET NUMBER DA-0752 -22-0199 -I-1 DATE: June 22, 2023 THIS ORDER IS NONPRECEDENTIAL1 Winnett Knox , Baytown, Texas, pro se. Patricia Washington , Falls Church, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her appeal of her termination for lack of jurisdiction . For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision , and REMAND the case to the Dallas Regional Office for further adjudication in acc ordance 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 dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 BACKGROUND ¶2 The record in this appeal is sparse but appears to set forth the following facts. According to the appellant, she is a preference eligible who was employed with the agency’s Executive Office for Immigration Review (EOIR) for approximately 5 years. Initia l Appeal File (IAF), Tab 1 at 1. As of June 2021, she was employed with the EOIR’s Office of the Chief Immigration Judge at the Houston -Greenpoint Park Immigration Court as a Legal Assistant, GS -07, in the competitive service . Id. at 4. Following her voluntary application and selection, the appellant was promoted to the position of Legal Administrative Specialist, GS-09, effective August 15, 2021. Id. at 4, 7. With this promotion, the appellant’s appointment was converted from the competitive service t o the excepted service, and she was subject to a 2 -year trial period because her selection was from a Veterans Recruitment Appointment (VRA) authority. Id. at 4. Effective February 17, 2022, the agency terminated the appellant from her Legal Administrati ve Specialist position based on the charge of conduct unbecoming an employee , which concerned a verbal altercation with a coworker and disrespectful behavior during a subsequent meeting about the altercation . Id. at 4-5. ¶3 On March 10, 2022, the appellant appealed her termination to the Board, arguing that she “was never given an opportunity to rebut[] any of the allegations” against her. IAF, Tab 1 at 8. She did not request a hearing. Id. at 2. Recognizing that the Board may not have jurisdiction over the appellant’s appeal, the administrative judge informed the appellant of what a preference eligible in the excepted service must show to establish the Board’s jurisdiction over her termination , and he ordered her to file evidence and argument constituti ng a nonfrivolous allegation that the termination action is within the Board’s jurisdiction. IAF, Tab 2 at 2 -6. After the appellant failed to respond to the jurisdictional order, th e administrative judge issued an order to show cause, providing the appel lant with an additional opportunity to establish the Board’s 3 jurisdiction and ordering her to file evidence and argument constituting a nonfrivolous allegation of jurisdiction . IAF, Tab 7. The appellant did not respond to the order to show cause. ¶4 On Ap ril 29, 2022, the administrative judge issued an initial decision dismissing the appeal. IAF, Tab 8, Initial Decision (ID). He found that the appellant failed to establish that she is an “employee” under 5 U.S.C. § 7511 (a)(1)(B) who is eligible to appeal her termination to the Board. ID at 4 -5. He also found that the appellant failed to nonfrivolously allege any fact supporting a regulatory right to an appeal under 5 C.F.R. § 315.806 . ID at 5 -6. Accordingly, he dismissed the appeal for lack of jurisdiction. ID at 6. ¶5 The appellant has filed a petition for review of the initial decision, wherein she argues that she had been a Legal Assistant with the agency since 2017 and that she is, therefore, a “[p]ermanent employee” with Board appeal rights.2 Petition for Review (P FR) File, Tab 1 at 4. She also reasserts that she was not provided with an opportunity to respond to the allegations against her, and she continues to argue the merits of her termination.3 Id. at 5-7. The agency has 2 The appellant also argues on review that, at the time she was terminated from her Legal Administrative Specialist position, her appointment was pending conversion to the competitive service and that she would submit to the Board an updated Standard Form 50 (SF -50) reflecting such change when she received it. PFR File, Tab 1 at 4. Although a conversion to the competitive service would alter the statutory requirements that the appellant would need to meet to establis h the Board’s jurisdiction, she filed an appeal of her termination from a position in the excepted service. It is well settled that the Board’s jurisdiction is determined by the nature of the agency’s action against the appellant at the time an appeal is filed with the Board. See Pupis v. U.S. Postal Service , 105 M.S.P.R. 1 , ¶ 4 (2007). Accordingly, any such conversion from the excepted service to the competitive service would not change the outcome arrived at in this Order and discussed below. 3 With her petition for review, the appellant also submits a certificate of release or discharge from active duty, SF -50s concerning a pay increase and health benefits coverage, performance appraisals from 2017 regarding her Legal Assistant position, the termination notice, and the personal statement included in her initial appeal. Id. at 9-23. 4 responded to the appellant’s petition for review, and the appellant has replied to the agency’s response. PFR File, Tabs 3 -4. DISCUSSION OF ARGUME NTS ON REVIEW ¶6 The Board’s jurisdiction is not plenary, and it is limited to matters over which it has been given jurisdiction by law, rule, or re gulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). An appellant is entitled to a jurisdictional hearing if she presents nonfrivolous allegations of Board jurisdiction. Coleman v. Department of the Army , 106 M.S.P.R. 436 , ¶ 9 (2007). The app ellant bears the burden of proving, by preponderant evidence, that the Board has jurisdiction over her appeal. 5 C.F.R. § 1201.56 (b)(2)(i)(A). ¶7 Only an “employee” can appeal to the Board from an adverse action. See 5 U.S.C. § 7511 (a)(1); Mfotchou v. Department of Veterans Affairs , 113 M.S.P.R. 317, ¶ 8 (2010). As set forth above, the appellant’s appointment to the Legal Administrative Specialist position was ma de pursuant to VRA authority. IAF, Tab 1 at 4. VRA appointments are excepted service appointments made without competition to positions otherwise in the competitive service. See 38 U.S.C. § 4214; 5 C.F.R. § 307.103 . A preference eligible in the excepted service, such as the appellant, is an “employee” with Board appeal rights if she has completed 1 year of current continuous s ervice in the same or similar positions.4 5 U.S.C. 4 As set forth above, in the initial decision, the administrative judge also stated that the appellant may have a regulatory right to appeal under 5 C.F.R. § 315.806 . ID at 5 -6. It appears that he did so based on the agency’s inclusion of such appeal rights in its termination notice. IAF, Tab 1 at 6. However, the Board has found that an individu al appointed in the excepted service, such as the appellant, has no regulatory right to appeal under 5 C.F.R. § 315.806 because that provision applies only to individuals in the competiti ve service. See Ramirez -Evans v. Department of Veterans Affairs , 113 M.S.P.R. 297 , ¶ 10 (2010) ; Allen v. Department of the N avy, 102 M.S.P.R. 302 , ¶ 6 (2006) . It is well settled that the Board’s jurisdiction cannot be expanded by an agency’s erroneous notic e of appeal rights. See Barrand v. Department of Veterans Affairs , 112 M.S.P.R. 210 , ¶ 13 (2009). Because the appellant was a preference eligible in the excepted service, the Board has jurisdiction over her appeal only if she was an “employee” under 5 U.S.C. § 7511 (a)(1)(B), as set forth above. See Allen , 102 M.S.P.R. 302, ¶ 6. 5 § 7511 (a)(1)(B); Maibaum v. Department of Veterans Affairs , 116 M.S.P.R. 234 , ¶ 9 (2011). ¶8 In the initial decision, the administrative judge stated that it was undisputed that the agency converted the appellant’s appointment to the excepted service on August 15, 2021, a nd terminated her effective February 17, 2022, before she completed 1 year of current continuous service. ID at 5; IAF, Tab 1 at 4. He also observed that the appellant did not allege that any of her prior Federal service constituted “current continuous s ervice” under section 7511(a)(1)(B). ID at 5. Accordingly, he found that the appellant failed to establish that she is an “employee” eligible to appeal her termination to the Board pursuant 5 U.S.C. § 7511 (a)(1)(B) . Id. ¶9 On review, the appellant argues that she had been a Legal Assistant with the agency since 2017, and that the Legal Assistant position was “the same position” as the Legal Administrative Specialist position from which she was ter minated . PFR File, Tab 1 at 4. She alleges that the agency “just changed the title of the position.” Id. The appellant did not raise this argument below.5 IAF, Tab 1. Although the Board generally will not consider an argument raised for the first time on review absent a showing that it is based on new and material evidence that was not previously available despite the party’s due diligence, Clay v. Depart ment of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016), the appellant’s new argument concerns whether the Board has jurisdiction over her ap peal, a question 5 Although the record below suggests that the appellant ha d been employed with the agency since 2017, the appellant did not allege before the administrative judge that her prior service was in a same or similar position to the position from which she was terminated. IAF, Tab 1. This is presumably the basis for the administrative judge’s finding that the appellant failed to nonfriovlously allege that her prior service constituted “current continuous serv ice” under 5 U.S.C. § 7511 (a)(1)(B). ID at 5. Thus, her argument in her petition for review that she held the Legal Assistant position since 2017 and that that position and the Legal Administrati ve Specialist position are the same is new . 6 that is always before the Board, see Lovoy v. Department of Health and Human Services , 94 M.S.P.R. 571 , ¶ 30 (20 03). Therefore, we consider it here. ¶10 We acknowledge that t he appellant’s assertion on review that the Legal Assistant and Legal Administrative Specialist positions are “the same” is terse and lacks supporting detail . PFR File, Tab 1 at 4. However, fundamental fairness requires us to construe a pro se appellant’s allegations liberally. See Farooq v. Corporation for National and Community Service , 109 M.S.P.R. 7 3, ¶ 11 (2008) (stating that , because a pro se appellant is not expected to plead issues with the same precision as would be expected of an attorney, the Board will construe her claims liberally); Melnick v. Department of Ho using and Urban Development , 42 M.S.P.R. 93 , 97-98 (1989) (same), aff’d , 899 F.2d 1228 (Fed. Cir. 1990) (Table). Therefore, we construe the appellant’s claim as one alleging that, because she was a Legal Assistant with the agency since 2017 and the Legal Assistant position was “the same” as the Legal Administrative Specialist position, she had at least 1 year of curr ent continuous service in a same or similar position when she was terminated . PFR File, Tab 1 at 4. Such an assertion constitut es a nonfrivolous allegation that the Board has jurisdiction over the appeal pursuant to 5 U.S.C. § 7511 (a)(1)(B). See Newman v. U.S. Postal Service , 79 M.S.P.R. 64 , 67 (1998) (finding that an allega tion that two positions are “materially the same” constitutes a nonfrivolous allegation of Board jurisdiction ). Further, the Board has explained that an appellant’s nonfrivolous allegation that two positions are the same or similar “creates a legitimate f actual issue” as to whether she had 1 year of current continuous service in the same or similar positions. See id . Accordingly, we find that the appellant is entitled to a jurisdictional hearing on this issue where she must prove jurisdiction by preponde rant evidence. See id . at 68; 5 C.F.R. § 1201.56 (b)(2)(i)(A) . 7 ORDER ¶11 For the reasons discussed above, we remand this appeal to the Dallas Regional Office for further adjudication in accordance with this Remand Order.6 Although the appellant did not request a hearing in her initial appeal, and there is no statutory requirement that the Board hold a hearing on the threshold issue of jurisdiction, if the adm inistrative judge concludes that a determination cannot be made based on the documentary evidence, an evidentiary hearing should be held to resolve the jurisdictional question.7 See Walker v. Department of the Army , 119 M.S.P.R. 391 , ¶ 6 (2013) . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 6 After the close of record on review, the appellant filed a “Motion to Accept Late Filing,” in which she requested to submit new evidence and argument in support of her petition for review. PFR File, Tab 6. Because we are remanding this appeal, we deny this motion. The appellant will have the opportunity to submit additional evidence and argument on remand, and, to the extent it is relevant to the issues in this appeal, the administrative judge should consid er it. 7 If the administrative judge finds that the appellant failed to establish that she is an “employee” pursuant to 5 U.S.C. § 7511 (a)(1)(B) with Board appeal rights , we note that the agency’s failure to inform her that she would lose her Board appeal rights after voluntarily transferring from the Legal Assistant position in the competitive service to the Legal Administrative Specialist position in the excepted service does not confer Board jurisdiction. See Williams v. Merit Systems Protection Board , 892 F.3d 1156 , 1162 -63 (Fed. Cir. 2018) (holding that an ag ency’s failure to inform an employee of the consequences of a voluntary transfer cannot confer appeal rights to an employee in a position which has no appeal rights by statute ).	KNOX_WINNETT_DA_0752_22_0199_I_1_REMAND_ORDER_2043060.pdf	2023-06-22	null	DA-0752	NP
2,995	https://www.mspb.gov/decisions/nonprecedential/THOMAS_FRANK_J_DC_0831_17_0394_I_2_FINAL_ORDER_2043061.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD FRANK J. THOMAS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DC-0831 -17-0394 -I-2 DATE: June 22, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Frank J. Thomas , Glen Allen, Virginia, pro se. Carla Robinson , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 The Office of Personnel Management (OPM) has filed a petition for review of the initial decision, which reversed OPM’s reconsideration decision excluding the appellant’s military service from calculation of his civil service retirement annuity because he receives military retired pay which the Defense Finance 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 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 Accounting Services (DFAS) certified was awarded for a disability not incurred in enemy combat or caused by an instrumentality of war in line of duty during a period of war . On petition for review, OPM argues that the administrative judge exceeded her authority by making a finding contrary to DF AS’ certification . OPM further argues that, even if the administrative judge did not exceed her authority, the appellant still failed to prove that his military retired pay was awarded for a disability incurred in enemy combat or caused by an instrumental ity of war in line of duty during a period of war. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interp retation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved a n abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Fed eral Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b). ORDER ¶2 We ORDER OPM to rescind its reconsideration decision denying the appellant’s request to credit his military service toward his civil service retirement and to award such benefits in accordance with this decision. OPM must complete this actio n no later than 20 days after the date of this decision. 3 ¶3 We also ORDER OPM to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. We ORDER the a ppellant to provide all necessary information OPM requests to help it carry out the Board’s Order. The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b). ¶4 No later than 30 days after OPM tells the appellant it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that OPM d id not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes OPM has not fully carried out the Board’s Order, and should include the dates and results of any communications with OPM. See 5 C.F.R. § 1201.182 (a). NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the offic e 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 t he time limit for seeking such 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise w hich option is most appropriate in any matter. 4 review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Prote ction Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you shoul d contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Fede ral Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “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 intere sted in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appel lants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other se curity. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims onl y, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the 6 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 2 0507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Cour t 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 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. July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit cou rt 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: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	THOMAS_FRANK_J_DC_0831_17_0394_I_2_FINAL_ORDER_2043061.pdf	2023-06-22	null	DC-0831	NP
2,996	https://www.mspb.gov/decisions/nonprecedential/SAVAGE_NATHAN_A_AT_0752_16_0428_I_1_FINAL_ORDER_2043074.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD NATHAN A. SAVAGE, SR ., Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER AT-0752 -16-0428 -I-1 DATE: June 22, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Nathan A. Savage, Sr. , Pensacola, Florida, pro se. Donald Vicini , Esquire, Dallas, Texas , for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 The appellant has filed a petit ion for review of the initial decision, which dismissed the appeal for lack of jurisdiction . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initia l 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 dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c). 2 the facts of the case; the administrative judge ’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner ’s due diligence, was not available wh en the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petit ioner has not established any basis under section 1201.115 for granting 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 ¶2 The appellant filed an application for disability retirement with the Office of Personnel Management (OPM), claiming that he was disabled from his City Carrier position with the agency based on his medical condition of post -traumatic stress disorder . Initial Appeal File (IAF), Tab 17 at 10-18. On January 11, 2016, OPM approved the application. Id. at 19 -20. On April 4, 2016, the appellant filed an appeal with the Board alleging that his disability retirement was involuntary, asserting that the agency was aware of his disability and failed or refused to accommodate him. IAF, Tab 1. ¶3 The administrative judge found that the appellant had made a nonfrivolous allegation of involuntariness and held a juri sdictional hearing. IAF, Tab 19. Based on the record, including the hearing testimony, the administrative judge issued an initial decision finding that the appellant failed to meet his burden to show that his retirement was involuntary. She found th at a number of agency witnesses testified that the appellant did not tell them that he had a disability and that h e never request ed accommodation . IAF, Tab 21, Initial Decision (ID) at 4-7. She found that the testimony of these witnesses was more credible than the appellant ’s testimony that he informed his supervisors that he had a disability. 3 ID at 6. Thus, she found that the appellant f ailed to show that he request ed an accommodation for a known disability that would have allowed him to contin ue working when he asked for a reassignment to a Custodian position , and he failed to meet his burden to prove jurisdiction over his appeal . ID at 7. ¶4 In his petition for review, the appellant argues that the agency must attempt to accommodate a disability through the interactive process prior to granting disability retirement and it failed to do so . Petition for Review (PFR) File, Tab 2 at 2-5.2 The agency has responded in opposition to the petition. PFR File, Tab 4. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 A retirement is presumed to be a voluntary act and, therefore, beyond the Board ’s jurisdiction. Morrison v. Department of the Navy , 122 M.S.P.R. 205, ¶ 5 (2015); see 5 C.F.R. § 752.401 (b)(9). An appellant who alleges that a presumptively voluntary action was involuntary bears the burden of proving Board jurisdiction by a preponderance of the evidence. Garcia v. Department of Homeland Security , 437 F.3d 1322 , 1329 (Fed. Cir. 2006) (en banc); 5 C.F.R. § 1201.56 (b)(2)(i)(A) . In most cases, an appellant who alleges that his disability retirement was involuntary must show by preponderant evidence that (1) he indicated to the agency that he wished to continue working but that his medical limitations required a modification of his work conditions or duties, i.e., accommodatio n; (2) there was a reasonable accommodation available during the period between the date on which he indicated to the agency that he had medical limitations but desired to continue working and the date that he was separated that 2 On March 30, 2017, the appellant submitted a document to the Board’s Atlanta Regional Office (ATRO) that it docketed as a new appeal. While the appeal was pending, the appellant stated that he did not wish to file a new appeal but instead wanted to file a petition for review of the initial decision issued March 1, 2017. PFR File, Tab 1. ATRO forwarded the appellant’s March 30, 2017 submission to the Office of the Clerk of the Board for docketing as a petition for review. PFR File, Tab 2. The Office of the Clerk of the Board acknowledged the appellant’s March 30, 2017 submission as a timely filed petition for review. PFR File, Tab 3. 4 would have allowed h im to continue working; and (3) the agency unjustifiably failed to offer that accommodation. Mims v. Social Security Administration , 120 M.S.P.R. 213 , ¶ 17 (2013 ). ¶6 Here, we agree with the administrative judge that the appellant failed to meet his burden of proof to establish the first of the se three elements, i.e., that he indicated to the agency that he had medical limitations that require d modif ying his work conditions or duties . The administrative judge found that the appellant testified that he asked three supervisors for a transfer to a position th at was less stressful. ID at 3-4. However, she found that all three supervisors testifi ed credibly that, although the appellant had mentioned that he wanted to leave his City Carrier position to become a Custodian, they did not know that he had a disability or that it was the reason that he wanted to become a C ustodian . ID at 5. She also f ound that the Station Manager testified credibly that he did not know that the appellant had a disability or that he needed an accommodation. ID at 4 . Likewise, she found that the Postmaster testified credibly that she did not know that the appellant had a disability. ID at 5. The Board must defer to an administrative judge ’s credibility determinations when, as here, they are based, explicitly or implicitly, on observin g the demeanor of witnesses testifying at a hearing. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) . The administrative judge properly found that , because the appella nt failed to meet his burden to show that he informed the agency that he had medical limitat ions that required accommodation , he failed to show that his disability retirement was involuntary . See Garcia , 437 F.3d at 1329 ; Mims , 120 M.S.P.R. 213 , ¶ 17 . ¶7 Because the appellant failed to inform his supervisors and manager s that he had a disability, he also failed to supply t he agency with sufficient information for it to determine that he was making a request for a reasonable accommodation under the Rehabilitation Act of 1973 . Thus, the agency had no obligation to follow up with him , requesting more information about his accommodation needs through an informal interactive process . Under these circumstances, t he agency 5 properly did not initiate the sort of exchange that is supposed to occur during the interactive process. See 29 C.F.R. § 1630.2 (o)(3) (to determine the appropriate reasonable accommodation, an agency may need to “initiate an informal, interactive process with the individual with a disability in need of the accommodation ”). Accordingly , we conclude that the appellant ’s assertion on petition for review that the agency failed in its obligation to accommodate his disability through the interactive process prior to his receipt of disability retirement is unavailing. 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 and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriat e for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applica ble to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choice s of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services p rovided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 7 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for rev iew to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 8 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhan cement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competen t 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 whistleblo wer claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SAVAGE_NATHAN_A_AT_0752_16_0428_I_1_FINAL_ORDER_2043074.pdf	2023-06-22	null	AT-0752	NP
2,997	https://www.mspb.gov/decisions/nonprecedential/MURRAY_ANN_AT_0432_16_0588_I_1_FINAL_ORDER__2043127.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ANN MURRAY, Appellant, v. NATIONAL AERONAUTICS AND SPACE ADMIN, Agency. DOCKET NUMBER AT-0432 -16-0588 -I-1 DATE: June 22, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Archibald J. Thomas, III , Esquire, Jacksonville, Florida, for the appellant. Daniel Shaver , Orlando, Florida, for the agency. Miata L. Coleman , Esquire, Kennedy Space Center, 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 affirmed her performance -based removal under 5 U.S.C., chapter 43. For the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 reasons discussed below, we GRANT the appellant’s petition for review and REVERSE the initial decision. The appellant’s removal is NOT SUSTAINED. BACKGROUND ¶2 The appellant was a GS -13 Aerospace Technologist, stationed at the agency’s Kennedy Space Center (KS C). Initial Appeal File (IAF), Tab 1 at 1, Tab 6 at 4. The appellant’s summary performance was rated on a four-tier scale, ranging from Distinguished to Unacceptable. IAF, Tab 8 at 27 ; see 5 C.F.R. § 430.208 (d)(1), Pattern F . Her performance plan contained two cri tical elements, each rated on a th ree-tier scale ranging from Substantively Exceeds Expectations to Fails to Meet Expectations. IAF, Tab 8 at 28 -31. These two critical performan ce elements were as follows: (1 ) “Provide quality products and services for Center Planning and Development Directorate operations and to the KSC Institution. Provide innovative technologies and technical solutions and support to relevan t missions of KSC and the Agency;” and (2 ) “Provide engineering and research and technology se rvices to meet customer needs for mission: Provide services for safe and efficient Technology Development and Innovation .” Id. at 28, 30. Each of these two performance elements encompassed multiple components and subcomponents . Id. at 28 -31. The appel lant’s performance appraisal period ran from May 1 to April 30, of each year. Id. at 27. ¶3 After a summary Unacceptable performance rating for the period ending April 30, 2015, the agency placed the appellant on a 90 -day performance improvement plan (PIP), beginning October 22, 2015. IAF, Tab 7 at 92 -97, Tab 8 at 27. After the PIP period ended, the agency determined that the appellant’s performance remained unacceptable in both critical elements, and it removed her effective May 10, 2016. IAF, Tab 1 at 8 -25, Tab 6 at 4. ¶4 The appellant filed a Board appeal, arguing among other things that the agency committed a prohibited personnel practice by failing to accommodate her disabling allerg y and respiratory conditions . IAF, Tab 1 at 1 -6, Tab 19 at 5 -6. 3 After a hearing, the administrative judge issued an initial decision affirming the appellant’s removal. IAF, Tab 54, Initial Decision (ID). He found that the agency proved each element of its case by substantial evidence, and that the appellant did not prove an y of her affirmative defenses, including her affirmative defense of reasonable accommodation disability discrimination. ID at 3 -33. ¶5 The appellant has filed a petition for review, disputing several of the administrative judge’s findings of fact and conclus ions of law, including his findings on her reasonable accommodation disability discrimination claim. Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3. ANALYSIS ¶6 After the initial decision in this appeal was issued, the United States Court of Appeals for the Federal Circuit issued a precedential decision holding that part of the agency’s burden in a chapter 43 appeal is to justify the initiation of the PIP in the f irst instance by providing substantial evidence that the appellant’s performance prior to the PIP was unacceptable. Santos v. National Aeronautics and Space Administration , 990 F.3d 1355 , 1360 -61 (Fed. Cir. 2021). Consistent with the Board precedent at the time, the administrative judge did not address this issue in his initial decision . Normally, this would require a remand for further develop ment of the record and issuance of a new initial decision. See, e.g. , Lee v. Department of Veterans Affairs , 2022 MSPB 11 , ¶¶ 16-17. However, because we are reversing the agency’s action on other grounds, a remand in this case is unnecessary. ¶7 Furthermore , apart from reasonable accommodation disability discrimination, the appellant raised several other affirmative defenses that we decli ne to address on petition for review. Specifically, t he appellant does not challenge the administrative judge’s findings that she failed to prove her affirmative defenses of race discrimination, disparate treatment disability 4 discrimination, or retaliatio n for equal employment opportunity activity. ID at 30-33; see 5 C.F.R. § 1201.115 (“The Board normally will consider only issued raised in a timely filed petition or cross petition for review.”). The appellant argues that the administrative judge failed to adjudicate her affirmative defense of harmful procedural error , PFR File, Tab 1 at 13 -14, but because we are reversing the appellant’s removal on other grounds and she could not gain any additional relief even if she proved this affirmative defense , we likewise decline to address that argument on review, see Wilson v. Department of Veterans A ffairs , 2022 MSPB 7 , ¶ 34 & n.9. The appellant proved her affirmative defense of disability discrimination under a reasonable accomm odation theory . ¶8 A Federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disabi lity unless the agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2 (o), (p). To establish that she was denied a reasonable accommodation, an appellant must show that: (1) She is an individual with a disability, as defined by 29 C.F.R. § 1630.2 (g); (2) she is a “qualified ” individual with a disability pursuant to 29 C.F.R. § 1630.2 (m); and (3) the agency failed to provide her with a reasonable accommodation. Bryce B. v. Central Intelligence Agency , EEOC Appeal No. 2021002721, 2022 WL 103752421 , at 10 (Sept. 28, 2022 ).2 If the appellant makes this showing, the burden shifts to the agency to show whether the accommodation, even if plausible, would nonetheless impose an undue hardship (i.e., a significant difficulty or expense) on the operations of the ag ency. Harvey G. v. Department 2 The Board will defer to the Equal Employment Opportunity Commission on matters of substantive discrimination law. Southerland v. Department of Defense , 122 M.S.P.R. 51, ¶ 12 (2014) . 5 of Transportation , EEOC Appeal No. 2022000813 , 2022 WL 16848386 , at 6 (Oct. 20, 2022). ¶9 An employer has an affirmative obligation to provide a reasonable accommodation for an individual with a disability. School Board of Nas sau County, Florida v. Arline , 480 U.S. 273 , 289, n.19 (1987). In general, an accommodation is any change in the work environment, or in the way things are customarily done, that enables an individual with a disability to enjoy equal employment opportunities. 29 C.F.R. § 1630.2 (m). Although an employee is not necessarily entit led to her accommodation of choice, “a reasonable accommodation must be an effective accommodation. It must provide an opportunity for a person with a disability to achieve the same level of performance or to enjoy benefits or privileges equal to those of an average similarly situated [person without a disability].” EEOC Technical Assistance Manual on the Employment Provisions of the Americans with Disabilities Act at III, 3.3 (Jan. 1, 1992), https://www.eeoc.gov/laws/guidance/technical -assistance - manual -employment -provisions -title-i-americans -disabilities -act. An “effective” accommodation removes a workplace barrier, thereby providing an individual with an equal opportunity to apply for a po sition, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment. Barney G. v. Social Security Administration , EEOC Appeal No. 2021000802 , 2022 WL 4546523 , at 7 (Sept. 12, 2022). ¶10 In this case, the appellant first reported her symptoms to an agency Environmental Health official on February 5, 2014 , when she complained of tightness in her chest and difficulty breathing . She attributed her symptoms to environmental conditions at the Headquarters buil ding in which she worked .3 3 It is undisputed that, during this time period, environmental conditions in the Headquarters building ca used similar symptoms in numerous other employees, at least some of whom the agency permitted to telework as a result. IAF, Tab 53, Hearing Recording (HR), Track 3 at 9:10 (testimony of the appellant’s supervisor), Track 7 at 20:22 (testimony of the appel lant). At the time of the hearing in this appeal, the 6 IAF, Tab 25 at 78-79. On February 11, 2014, the appellant requ ested reasonable accommodations in the form of a change in duty location to a different building at KSC . Id. at 73. On March 3, 2014, the agency granted the appell ant’s request on an interim basis, pending the receipt of medical documentation. Id. at 50-51, 54. On March 20, 2014, the appellant’s allergist provided medical documentation to support the relocation request. Id. at 76. On April 14, 2014, the agency officially denied the appellant’s request on the bases that the medical documentation d id not support the request, and the appellant’s Headquarters work area had already undergone significant allergen remediation. Id. Notwithstanding, the agency kept the appellant’s interim accommodation in place, ostensibly due to another reasonable accommodation request that the appellant had recently filed . Id. at 48, 50-51, 54. ¶11 Specifically , on April 11, 2014, the appellant submitted an update to her original reasonable accommodation request , which the agency processed as a separate request . Id. at 85 -86. The appellant related that the agency intended to terminate her current flexible workweek arrangement, and that this would negatively affect her medical con dition. Id. at 85. She explained that she was suffering from sleep apnea in connection with her allergies, and that flexible work hours and telework arrangements had theretofore played an importan t role in managing her symptoms: Sometimes I max out at 6 hours per day of capability , other days I can work 12 hours. The variable work schedule allows me to control the levels of my sleep deprivation, control my exposure to allergens which have effects on sleep apnea, and maximize work productivi ty. So I need the capability of variable start times every day. I also have many medical appointments associated with my illness, so I need the flexibility of a variable work schedule to maximize my work hours by keeping my appointments outside of my 40 hour week . Headquarters building had been slated for demolition. HR, Track 3 at 8:05 (testimony of the appellant’s supervisor). 7 Id. at 85 -86. The agency construed this as a request for a maxi -flex duty schedule and up to 24 hours of telework per week. Id. at 90. ¶12 After receiving medical documentation from the appellant’s sleep specialist, on September 10, 2014, the agen cy denied her request for telework and flexible hours as not being supported by the medical documentation. Id. at 91. However, due to a change in the location of the appellant’s work unit, the agency decided to reopen her other request, and it approved h er relocation to a different office at KSC. Id. at 95. ¶13 Nevertheless, even after changing work stations, the appellant continued to experience symptoms. Id. at 54. Therefore, o n February 4, 2015, the appellant’s allergist recommended some additional chan ges to her work environment , including increased air filtration and circulation, no carpet or cloth -based partitions in the office , weekly clea ning of the work area with damp cloths, and relocation to alternate non -allergenic work areas, including working from home. Id. at 54 -55. On April 16, 2015, the agency decided to implement the first three recommendations, but it again denied the appellant’s request to telework because of her alleged performance deficiency . Id. at 52, 55. On June 22, 2015, the appellant renewed her request for a flexible schedule, but the agency denied that request as well, and for the same reason. Id. at 47. Despite the agency’s efforts at environmental re mediation, the appellant continued to experience allergic reactions at her duty station and had to leave the area fr equently . IAF, Tab 26 at 47, Tab 53, Hearing Recording (HR) , Track 4 at 30:25 (testimony of the appellant) . She went so far as to spend lo ng stretches of her workday working outdoors, until the agency ordered her to cease this practice and return to her indoor office . IAF, Tab 26 at 21. ¶14 Turning to the appellant’s case in chief , the administrative judge found that the appellant was disab led within the meaning of 29 C.F.R. § 1630.2 (g) because, by virtue of her allergies to mold and other substances, she was substantially limited in one or more major life activities, including working. ID at 26. This 8 finding is supported by the record and is not in dispute. Regarding whether the appellant was “qualified” within the meaning of 29 C.F.R. § 1630.2 (m), the administrative judge did not specifically address that issue in his initial decision. Nevertheless, we observe th at this issue is intertwined with the issue of whether there existed a reasonable accommodation that would have allowed the appellant to perform the essential functions of her position. We therefore proceed to that portion of the analysis. ¶15 The administrat ive judge found , and the parties do not dispute, that the agency provided the appellant with several of her requested accommodations, including multiple office relocations , removing the carpet from her office and replacing it with tile, no cloth -based part itions in her office, periodic replacement of air circulation vent filters, and weekly cleaning of her work area. ID at 26 -27; IAF, Tab 8 at 57 -58, Tab 25 at 54 -55, Tab 43 at 35 -36. Nevertheless, the accommodations provided by the agency were not effect ive. That is, the appellant was not performing the essential functions of her job to the extent deemed necessary by the agency to avoid removal for poor performance. See Natalie S. v. Department of Veterans Affairs , EEOC Appeal Nos. 0120140815, 012014204 9, 2018 WL 703733 , at 12 (Jan . 26, 2018). Where, as here, the accommodation appears ineffective, the employer a nd employee should reexamine the reasonable accommodation . Id. at 13. ¶16 Indeed, the facts of this case indicate that telework, a flexible wor k schedule, or a combination thereof, would have been the next logical accommodation for the agency to try after determining that it could not offer any additional modifications to the appellant’s on -site working environment. The record shows that the appellant was working a flexible schedule in the same job until April 2014. IAF, Tab 25 at 85. The agency’s revocation of this flexible arrangement coincided with the appellant’s alleged decline in performance for the 9 2014 -2015 p erformance year, which began the following month.4 IAF, Tab 8 at 27-34. Similarly, the appellant had previously been permitted to telework as part of a reasonable accommodation, but the agency revoked her teleworking arrangement in December 2013, less th an 6 months prior to the onset of the 2014 -2015 performance year. HR, Track 7 at 16:20 (testimony of the appellant). There is no evidence that the appellant experienced any performance deficiencies while she was teleworking, and in fact, the appellant te stified , without contradiction, that when she was permitted to telework, her performance was excellent. HR, Track 8 at 35:35 (testimony of the appellant). Furthermore, it is undisputed that most of the appellant’s peer employees were permitted to telewor k during the time period at issue , and that they were able to perform the essential functions of their positions. HR, Track 3 at 16:05 , Track 4 at 19:50 (testimony of the appellant’s supervisor) , Track 7 at 15:40 , 20:00 (testimony of the appellant) . More over, there is good reason to believe that these accommodations would have been effective . As the appellant has explained repeatedly, from her first accommodation request through the Board hearing, teleworking and a flexible schedule would have reduced he r exposure to the allergens present at the work site, facilitated her access to medical care, and afforded her some flexibility in managing the sleep pro blems that were being caused by her respiratory impairments. IAF, Tab 25 at 85 -86; HR, Track 8 at 35:0 5 (testimony of the appellant). The appellant’s explanation of the reason for her telework and flexible schedule requests makes sense on its face and presents a straightforward pathway to reducing the workplace barriers attendant to her disability. The a gency does not specifically argue that part-time telework and a flexible schedule would not have been effective in accommodating the 4 It is undisputed that the appellant never experienced any performance problems du ring her 23 years of service with the agency prior to the events at issue in this appeal. HR, Track 5 at 29:00, 34:10 (testimony of the appellant). 10 appellant’ s disability, and for the reasons explained above, we find that these accommodations would more likely than not have been effective. ¶17 Nevertheless, the agency denied the appellant’s requests for telework and a flexible schedule on the basis that such accommodations would create an undue hardship. IAF, Tab 25 at 55. In general, an undue hardship exists when provision of the requested accommodation would cause the employing agency significant difficulty or expense. 29 C.F.R. § 1630.2 (p)(1). In deter mining whether an undue hardship exists, t he Board will consider the totality of the circumstances , including the factors listed in 29 C.F.R. § 1630.2 (p)(2), as applicable. See Josephine S. v. Department of Homeland Security , EEOC Appeal No. 0120161196 , 2018 WL 3415747 , at 5 (Jun e 26, 2018). The agency bears the burden of establishing, through case -specific evidence, that a reasonable accommodation would cause an undue hardship . U.S. Airways v. Barnett , 535 U.S. 391 , 402 (2002) ¶18 In this case, t he agency proffered two seemingly related reasons for its undue hardship determinatio n: (1) There was a need for the appellant to “fully integrate with her team,” and (2) the performance difficulties that the appellant was experiencing required that she be closely supervised. IAF, Tab 25 at 55. Essentially, the agency is arguing that accommodating the appellant through telework or a flexible schedule would adversely affect “ the operation of the [KSC] facility, including the impact on the ability of other employees to perform their duties and the impact on the facility ’s ability to cond uct business. ” 5 C.F.R. § 1630.2 (p)(2)(v). Regarding the first point, the agency did not explain what it would mean for the appellant to “fully integrate with her team.” Presumably, this pertains to the appellant engaging in effective real -time communication with her coworkers. Nevertheless , it appears to us that being integrated with the team is not an essential function of the Aerospace Technologist position but is instead a means by which an Aerospace Technologist may accomplish the essential functions of her position. See Gilberto S. v. Department of Homeland Security , 11 EEOC Petition No. 0320110053, 2014 WL 3571431 , at 4 -5 (Jul y 10, 2014). In any event, the agency d oes not c laim t hat other teleworkers are not fully integrated with the team, and it has not explained why it believes that a flexible schedule or teleworking arrangement would necessarily prevent the appellant from being “fully integrated .”5 Regarding the second point, the agency did not present evidence as to why it could not provide close supervisory instruction to the appellant during the times that she teleworked or during the remaining hours when she worked at the office. Simply put, the agency has not provided eno ugh to show that the telework or flexible schedule accommodation would cause an undue disruption to its operations or other undue hardship. This is particularly so considering that the telework infrastructure was already in place and ready for the appella nt to access , and the agency has significant institutional experience managing both flexible schedule employees and teleworkers .6 See Elsa S. v. National Aeronautics and Space Administration , EEOC Appeal No. 0720180021, 2020 WL 949689 at * 9 (Feb. 14 2020) (finding no undue hardship when the complainant’s requested accommodations were in place within the agency, available to employees, and allowed her to perform the essential functions of her 5 The appellant’s supervisor testified that, after the agency moved the appellant out of the Headquarters b uilding to various other locations on the KSC campus, she experienced significant difficulty in reaching the appellant by email, telephone, and office visit. HR, Track 4 at 10:10 (testimony of the appellant’s supervisor). The agency does not seem to have considered the possibility that working from home might have allowed the appellant to remain at her workstation with less frequent breaks, thereby facilitating her supervisor’s ability to reach her during the workday. 6 To the extent that the agency harbo red any doubts about whether these accommodations would be effective or whether they would unduly impede communications between the appellant, her supervisor, and her coworkers, the correct course of action would have been to offer the accommodations on an interim or trial basis. See, e.g. , Mario H. v. Department of Health and Human Services , EEOC Appeal No. 2021004035 , 2022 WL 1449503 , at 5 (Apr. 20, 2022). “U sing a possible accommodation for a limited trial period is often part of the ongoing interacti ve process and can be a path towards identifying an effective accommodation. ” Tyson A. v. Department of Agriculture , EEOC Appeal No. 2020000972 , 2021 WL 3839942 , at 6 (Aug. 16, 2021). 12 position ). For these reasons, we disagree with the administrativ e judge’s finding that the agency proved that these accommodations would constitute an undue hardship. ID at 29 -30. ¶19 We are aware that it is common practice in Federal agencies to revoke, suspend, or otherwise curtail flexible schedul e and telework privile ges for employees who are experiencing performance problems. Nothing in this decision is intended to cast doubt on the propriety of those policies and practices in general . Nevertheless, even if for most employees these arrangements are a privilege, for qualified disabled employees, reasonable accommodation s are a right , even if those accommodations entail telework or a flexible work schedule . No agency policy or management preference can override the statutory requirements of the Rehabilitation Act and the Americans with Disabilities Act (ADA) . See Garza v. Office of Personnel Management , 83 M.S.P.R. 336 , ¶ 5 (1999) , aff’d, 250 F.3d 763 (Fed. Cir. 2000) (Table). As the appellant accurately observes, “denial of an accommodation on the ground that a non -accommodated, disabled employee is experiencing performance inadequacies turns the rationale for the ADA’s ru le of reasonable accommodation on its head. ” PFR File, Tab 1 at 9 (quoting Goonan v. Federal Reserve Bank of New York , 916 F.Supp.2d 470 , 483 (S.D.N.Y. 2013) ). “Failure to consider the possibility of reasonable accommodation for such disabilities, if it leads to discharge for performance inadequacies resulting from the disabilities, amounts to a discharge solel y because of the disabilities.” Borkowski v. Central Valley School District , 63 F.3d 131, 143 (2nd Cir. 1995). In this case, i t is undisputed that t he appellant’s alleged performance d ifficulties were the primary reason that her requests for telework and a flexible schedule were denied. HR, Track 3 at 15: 40, 17:55 (testimony of the appellant’s supervisor). ¶20 For these reasons, we find that the appellant has proven her affirmative defense of disability discrimination. She was a qualified individual with a disability, and the agency failed t o provide her a reasonable accommodation. Nor 13 has the agency shown that accommodating the appellant with a flexible schedule or part-time telework would have cause d an undue hardship. Further, because the agency required the appellant to work without an effective reasonable accommodation both during the PIP period itself and the months immediately preceding the PIP period, we find that there is a sufficient connection between the agency’s failure to accommodate and the performance -based removal action suc h that the removal was based on a prohibited personnel practice under 5 U.S.C. § 2302 (b)(1)(D). Therefore, the appellant’s removal cannot be sustained . See 5 U.S.C. § 7701 (c)(2)(B). ORDER ¶21 We ORDER the agency to cancel its removal action and restore the appellant to duty effective May 10, 2016. 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. ¶22 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the app ellant 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. ¶23 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). 14 ¶24 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board ’s Order, and should include the da tes and results of any communications with the agency. 5 C.F.R. § 1201.182 (a). ¶25 For agencies whose payroll is administered by either the National Finance Center of the Department of Agri culture (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 APPELL ANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND CO STS 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 APPELL ANT REGARDING YOUR RIGHT TO REQUEST COMPENSATORY DAMAGES You may be entitled to be paid by the agency for your compensatory damages, including pecuniary losses, future pecuniary losses, and nonpecuniary losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. To be paid, you must meet the requirements set out at 42 U.S.C. § 1981a . The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.204. If you believe you meet these requirements, you must file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion with the office that issued the initial decision on your a ppeal. NOTICE OF APPEAL RIG HTS7 This Final Order constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of t his final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time l imits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 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. 16 Please read carefully each of the three main possible choices of review below to decide which one applies to your parti cular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 17 were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: 18 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described i n section 2302(b) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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). 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. 19 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. C ourt of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for M erit Systems Protection Board appellants before the 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 appeal s can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washing ton, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 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. Missin g 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 d amages) 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 Remed y 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 under taken 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 annuit y 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 CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation req uired 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 amou nt 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 emplo yee 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 include d 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.	MURRAY_ANN_AT_0432_16_0588_I_1_FINAL_ORDER__2043127.pdf	2023-06-22	null	AT-0432	NP
2,998	https://www.mspb.gov/decisions/nonprecedential/DUONG_MAY_PH_752S_17_0143_I_1_FINAL_ORDER_2043144.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MAY DUONG, Appellant, v. DEPARTMENT OF THE TR EASURY, Agency. DOCKET NUMBER PH-752S -17-0143 -I-1 DATE: June 22, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 May Duong , Philadelphia, Pennsylvania, pro se. Ariya McGrew , Esquire, and Jael Dumornay , Esquire, New York, New York, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed the appeal without a hearing for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous fi ndings of material fact; the initial decision is based 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or th e initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due dil igence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The appellant filed a Board appeal after the agency suspended her without pay from the position of Mail Clerk , GS -0305-04, for 44 hours , effective September 19, 2016 . Initial Appeal File (IAF), Tab 1 at 1-2, Tab 7 at 28, 30, 34-36. The administrative judge issued a jurisdictional notice in the acknowledgment o rder informing the appellant that the Board generally lacks jurisdiction over appeals of suspensions of 14 days or less and that her suspension might not be within the Board’s jurisdiction.2 IAF, Tab 2 at 3 -4. The administrative judge explained exceptions to the general rule regarding Board jurisdiction over susp ensions of 14 days or less , e.g., when an appellant has alleged in an individual right of action (IRA) appeal that she was suspended in retaliation for activities protected under 5 U.S.C. § 2302 (b)(8) or 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) . Id. at 3. He explained that the appellant 2 The acknowledgment o rder also included a notice on timeliness , to which the administrative judge ordered the appellant to respond. IAF, Tab 2 at 2. The appeal was filed on January 11, 2017, and t hus appear s to have been untimely filed. IAF, Tab 1 at 10; see 5 C.F.R. § 1201.22 (b). The administrative judge did not reach the issue of timeliness , though, because the appellant faile d to establish the Board’s jurisdiction over the appeal. IAF, Tab 13 , Initial Decision at 2 n.1. 3 bore the burden of proof on the issue of jurisdiction and afforded he r an opportunity to file evide nce and argument establishing the Board’s jurisdiction . Id. at 4. He also gave the agency an opportunity to respond . Id. The appellant filed a response and a separate request for additional time in which to conduct discovery as to the jurisdiction al issues .3 IAF, Tabs 4-5. ¶3 The administrative judge issued a subsequent order to show cause, in which he gave the appellant additional information regarding he r jurisdictional burden , including information about establishing the Board’s jurisdiction in an IRA appeal . IAF, Tab 6 at 2 -3. He ordered her to show cause in writing as to why he r appeal should not be dismissed. Id. at 3. He ordered the agency to respond as well. Id. at 3-4. He also stayed the agency’s requirement to submit an agency file and to respond to discovery requests until he could resolve the question of whether the appellant had exhausted her administrative remedies by first filing a complaint with the Office of Special Counsel (OSC) before filing an IRA appeal . Id. at 3. The administra tive judge received responses from both the agency and the appellant before the record closed.4 IAF, Tabs 7 -8, 10. The administrative judge then issued the initial decision. IAF, Tab 13, Initial Decision (ID). ¶4 The administrative j udge found that the Board lacks jurisdiction over the appeal because the appellant’s suspension did not exceed 14 days in length and she failed to nonfrivolously allege any other basis for the Board’s jurisdiction . ID at 3-4. The administrative judge found that the appellan t had submitted no evidence in support of her assertion that she had exhausted her remedies with OSC, the preliminary step in establishing the Board’s jurisdiction over an IRA appeal . ID at 3; IAF, Tab 10 at 8 ; see 5 U.S.C. § 1214 (a)(3). Accordingly, the 3 The administrative judge denied the request , finding that discovery was not necessary to address the threshold jurisdictional issues . IAF, Tab 6 at 4. 4 The agency moved for time in which to reply to the appellant’s response, which she filed the day that the record closed . IAF, Tabs 10, 12. The administrative judge found that dismissal of the appeal for lack of jurisdic tion moot ed the agency’s motion. IAF, Tab 13 , Initial Decision at 2 n.3. 4 administrative judge dismissed the appeal for lack of Board jurisdiction . ID at 4. The appellant has filed a petition for review. Petition for Review ( PFR ) File, Tab 1. ¶5 The petition for review largely addresses the appellant’s arguments on the merits of the suspension action . Id. at 3-13. The appellant argues that the agency’s allegations of misconduct were false, the agency violated her right to due process or committed harmful error, and the agency suspended her in retaliation for f iling equal employment opportunity (EEO) and OSC complaints and for reporting a health issue in the workplace , namely an infestation of insects . Id. She also asserts that the administrative judge did not analyze the evidence carefully and erred by n ot holding a hearing. Id. at 6, 10, 13. ¶6 The appellant’s arguments on review almost exclusively address the merits of the suspension action and the affirmative defenses she alleges. She has not alleged, however, any ba sis for the Board’s jurisdiction. The Board’s jurisdiction is limited to those actions that are made appealable to it by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985); see 5 U.S.C. § 7701 (a). The appellant bears the burden of proof on the issue of jurisdiction. 5 C.F.R. §§ 1201.56 (b)(2)(i)(A), 1201 .57(b). The administrative judge , after providing notice of the jurisdictional issues before him, appropriately dismissed the appeal for lack of juri sdiction. See Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985). A suspension of 14 days or fewer is not an appe alable adverse action . See 5 U.S.C. § 7512 (2); Lefavor v. Department of the Navy , 115 M.S.P.R. 120, ¶ 5 (2010 ). The Board likewise lacks jurisdiction over any issues related to retaliation for EEO activities because prohibited personnel practice s under 5 U.S.C. § 2302 (b) are not independent source s 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). As for her contention that the Board has jurisdiction over her appeal because the suspension was in retaliation for protected activity under 5 U.S.C. § 2302 (b)(9) , the appellant 5 failed to demonstrate that sh e exhausted her administrative remedies with OSC . Proof of exhaustion is the first element in establishing the Board ’s jurisd iction in an IRA appeal . 5 U.S.C. § 1214 (a)(3); Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446 , ¶ 4 (2014).5 ¶7 The petition for review includes several attached documents that predate the close of the record. Som e of these documents pertain to the appellant’s efforts to file an EEO complaint . PFR File, Tab 1 at 16 -28. Others pertain to the agency’s decision to suspen d the appellant . Id. at 35-41. Additionally, t he appellant included a print -out of an internet form for creating an account with O SC. Id. at 30-31. She also provided an e mail message from OSC dated December 1 , 2016 , which states in relevant part : This is to notify you that your electronic complaint has been received by OSC ’s E-Filing System. . . . This also serves to notify you o f your file number, which is MA-17-0990. If you wish to send additional information or documents concerning this complaint, please identify this file number on each of your submissions. Id. at 32. ¶8 Under 5 C.F.R. § 1201.115 (d), 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 clos ed despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). The Board likewise 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). All of the documents submitted with the petition for review predate the c lose of the record , and the appellant has not alleged that they were unavailable to her before 5 We have reviewed the relevant legislation amending the whistleblower protection statutory scheme enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. 6 that time . These docume nts also are not of sufficient weight to warrant an outcome different from that of the initial decision. Except for the items pertaining to OSC, none of these documents address the jurisdictional issues upon which th e administrative judge decided this appeal. ¶9 As for the submissions related to OSC , the Board, in Chambers v. Department of Homeland Security , 2022 MSPB 8 , ¶¶ 10-11, clarified the substantive requirements of IRA exhaustion. The requirements are met when an appellant has provided OSC with a sufficient basis to pursue an investigation. The Board’s jurisdiction is limited to those issues that previously have been raised with OSC. However, appellants may give a more detailed account of the ir whistleblowing activities before the Board than they did to OSC. Appellants m ay demonstrate exhaustion through their initial OSC complaint, evidence that they amended the original complaint, including but not limited to OSC’s determination letter and other letters from OSC referencing any amended allegations, and their written resp onses to OSC referencing the amended allegations. Appellants also may establish exhaustion through other sufficiently reliable evidence, such as an affidavit or a declaration attesting that they raised with OSC the substance of the facts in the Board appe al. Id. ¶10 The appellant did not submit a copy of her OSC complaint or other correspondence with that agency . The documents she did submit show only that she created an online account with OSC and fi led a complaint. PFR File, Tab 1 at 30-33. They do not address the particular matters she reported to OSC. Accordingly, we conclude that the documents not only predate the close of the record, but they also fail to meet the Board’s standard for materiality, and we will not consider them. 7 NOTICE OF APPEAL RIGH TS6 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the approp riate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which o ption is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediatel y review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the thre e main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judic ial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the cour t at the following address: 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.usc ourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither e ndorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that y ou were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this c ase, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 9 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/Cour tWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEO C via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 10 disposition of allegations of a prohibited p ersonnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of competent jurisdiction.7 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanentl y allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Rev iew Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DUONG_MAY_PH_752S_17_0143_I_1_FINAL_ORDER_2043144.pdf	2023-06-22	null	PH-752S	NP
2,999	https://www.mspb.gov/decisions/nonprecedential/GRYDER_DONALD_E_AT_0752_16_0466_I_1_FINAL_ORDER_2043160.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTECTION BOARD DONALD E. GRYDER, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency. DOCKET NUMBER AT-0752 -16-0466 -I-1 DATE: June 22, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Donald E. Gryder , Johnson City, Tennessee, pro se. Linda Martin and Elizabeth A. Sorrells , 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 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 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not requ ired to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 interpretation of s tatute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of di scretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulati ons, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that 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 affirmative defense of retaliation for engaging in activity protected by the Rehabilitation Act , we AFFIRM the initial decision. ¶2 On petition for review, the appellant challenges the administrative judge’s findings regarding the agency’s charges of misconduct , his claim of a violation of his due process rights, the affirmative defenses of discrimination (age and disabili ty) and re taliation for prior equal employment opportunity (EEO) activity, and the reasonableness of the imposed penalty . Petition for Review (PFR) File, Tab 6 at 6-31.2 Further, he argues that the administrative judge erroneously denied his motion to co mpel discovery and denied him a hearing . Id. at 19, 25 . With his petition for review, the appellant has submitted evidence predating the close of the record before the administrative judge. Id. at 4-5, 32 -59.3 The 2 For the first time on review, the appellant asserts that the agency committed the prohibited personnel practices described in 5 U.S.C. § 2302 (b)(8), (b)(9), and (b)(12). PFR File, Tab 6 at 9 -17. We decline to address further the appellant’s new claims because he has not explained why he was unable to raise them before the administrative judge. See Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). 3 The appellant has failed to explain why he was unable to submit the “new” evidence —consisting of an email dated April 30, 2014, and medical documentation —before the record closed despite his due diligence. PFR File, Tab 6 at 38-59; see Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). 3 agency has filed a response to the appellant’s petition for review , PFR File, Tab 8,4 and he has filed a reply to the agency’s response , PFR File, Tab 9.5 In his reply, the appellant argues that the administrative judge was biased and engaged in improper ex parte communications wit h the agency.6 Id. at 2, 5 -6, 8, 11. ¶3 After considering the appellant’s arguments on the merits of the appeal , we find that they were adequately addressed in the initial decision by the administrative judge , and we discern no reason to disturb her findings . Initial Nevertheless, we find that such evidence is immaterial to the outcome of this appeal. The appellant’s evidence of an email exchange concerning the inspection reports for April 7 and 8, 2014, and an email dated April 22, 2014, was part of the record before the administrative judge and , thus, does not constitute new evidence. PFR File, Tab 6 at 4-5, 32 -37; Initial Appeal File, Tab 14 at 36 -39, Tab 73 at 51 -52; see Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980). 4 We disagree with the appellant ’s assert ion that the agency’s response to his petition for review was untimely f iled. PFR File, Tab 9 at 1 -2; see 5 C.F.R. §§ 1201.4 (l), 1201.14(m)(1), 1201.23. In addition, we deny the appellant’s request to reject the agency’s response as procedurally inadequate. PFR File, Tab 9 at 1 -2. 5 We deny the agency’s motion for leave to file a response to the appellant’s reply. PFR File, Tab 14; see 5 C.F.R. § 1201.114 (a)(5). 6 After filing the petition for revi ew and reply, the appellant filed a motion for leave to file an additional pleading. PFR File, Tab 19. Specifically, the appellant is requesting to submit a recent decision by the Office of Federal Operations (OFO) allegedly finding that the agency retal iated against him for his prior EEO activity. Id. at 1-2. For purposes of this case, the record on review closed on the expiration of the period for filing the reply to the response to the petition for review. See 5 C.F.R. § 1201.114 (k). Once the record on review closes, no additional evidence or argument will be accepted unless it is new and material and the party submitting it shows that the evidence or argument was not readily avai lable before the record closed. Id. To constitute new evidence, the information contained in the document, not just the document itself, must have been unavailable despite due diligence when the record closed. Durr v. Department of Veterans Affairs , 119 M.S.P.R. 195 , ¶ 23 (2013). Here, the appellant has not shown that the evidence relied upon by the OFO in its decision was unavail able despite his due diligence before the record on review closed. Therefore, we deny the appellant’s motion for leave to file an additional pleading. See id. (denying the appellant’s request for leave to submit a court decision after the record closed o n review); 5 C.F.R. § 1201.114 (a)(5), (k). 4 Appeal File (IAF), Tab 78, Initial Decision (ID) at 3 -32.7 Moreover, we find that the administrative judge did not abuse her discretion in granting the agency’s motion for sanctions by canceling the schedule d hearing based on the appellant’s contumacious and prejudicial conduct as to the agency’s attempts to take his deposition. IAF, Tab 65 at 1 -3; see, e.g. , Heckman v. Department of the Interior , 106 M.S.P.R. 210 , ¶¶ 8 -12 (2007); 5 C.F.R. § 1201.43 (e). The record supports the administrative judge’s explanation that the appellant failed to appear for a scheduled deposition despite being warned three times that his failure to appear may result in sanctions. IAF, Tab 40 at 1, Tab 54 at 3, Tab 58 at 1, Tab 65 at 3. We further find that the administrative judge did not abuse her discretion in denying the appellant’s motion to compel discovery because he failed to serve his requests for discovery on the correct agency. IAF, Tab 26 at 1 ; see, e.g. , Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 17 (2016) ; 5 C.F.R. § 1201.74 (a). In add ition, we find that the appellant’s arguments of adjudicatory bias and improper ex parte communications between the administrative judge and the agency provide no basis for disturbing the initial decision . In particular, the Board will not infer bias base d on an administrative judge ’s case -related rulings, Vaughn v. Department of the Treasury , 119 M.S.P.R. 605 , ¶ 18 (2013), and we find that the appellant’s broad allegation of bias is insufficient to rebut the presumption of the administrative judge ’s honesty and integrity , see Oliver v. Department of Transportation , 1 M.S.P.R. 382 , 386 (1980). Further, the appellant has failed to describe or provide evidence of improper ex parte communications or to specify how his substantive rights were harmed by not participating in a telephonic close -of-record conference. IAF, Tab 40 at 2 n.1; see Karapinka v. Department of Energy , 6 M.S.P.R. 124 , 127 (1981). 7 Because we affirm the administrative judge’s finding that the appellant failed to show that any prohibited consideration was a motivating fac tor in the agency’s action, we need not resolve the issue of whether the appellant proved that discrimination or 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. 5 ¶4 For the follow ing reasons, w e modify the initial decision as follows to consider the appellant’s affirmative defense of retaliation for engaging in activity protected by the Rehabilitation Act . As mentioned above, the appellant raised the affirmative defense of re talia tion for prior EEO activity. The record reflects that the appellant filed 18 prior EEO complaints , 3 of which concerned allegations of disability discrimination . IAF, Tab 8 at 97 n.3, 113, Tab 17 at 20-23. The administrative judge found that the appellant failed to prove that his prior EEO activity was a factor in the agency’s decision to remove him . ID at 30-32. However, because three of the appellant’s prior EEO complaints in 2003, 2014, and 2015 concerned disability discrimination, we find th at the appellant’s EEO retaliation claim includes a separate affirmative defense of retaliation for engaging in activity protected by the Rehabilitation Act . IAF, Tab 17 at 20, 23. Asserting disability discrimination is an activity protected by the Rehab ilitation Act.8 Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 44 . The anti-retaliation provision of the America ns with Disabilities Act of 1990 , which is incorporated by reference in the Rehabilitation Act, prohibits discriminating against any individual “because such individual” has engaged in protected activity. 42 U.S.C. § 12203 (a); Pridgen , 2022 MSPB 31, ¶ 44. An affirmative defense of retaliation for engaging in activity protected by the Rehabilitation Act is analyzed under the “but-for” causation standard , i.e., if the agency would not have taken the same action in the absence of the protected activity . Pridgen , 2022 MSPB 31, ¶¶ 44-47. Here, b ecause the administrative judge found that the appellant failed to prove that any of his prior 18 EEO complaints were a factor in his removal, we find that he cannot meet the higher “but -for” causation standard to prove retaliation for engaging in activity protected by the Rehabilitation Act . 8 The standards under the Americans with Disabilities Act of 1990 have been incorporated by reference into the Rehabilitation Act , and the Board applies them to determine whether there has been a Rehabilitation Act violation. 29 U.S.C. § 791 (f); Pridgen , 2022 MSPB 31 , ¶ 35; Miller v. Department of the Army , 121 M.S.P.R. 1 89, ¶ 13 n.3 (2014). 6 ¶5 Accordingly, we affirm the initial decision except as modifi ed herein. NOTICE OF APPEAL RIGHTS9 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtai n review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your si tuation an d the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a gener al rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decisio n. 5 U.S.C. § 7703 (b)(1)(A). 9 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevanc e is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by a ny attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appr opriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Prot ection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives t his decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 8 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 9 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.10 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circu it 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 10 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 Board neither endorses the services provided by any attorney nor warrants that any attorn ey will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	GRYDER_DONALD_E_AT_0752_16_0466_I_1_FINAL_ORDER_2043160.pdf	2023-06-22	null	AT-0752	NP

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