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300 | https://www.mspb.gov/decisions/nonprecedential/Redus_VanessaAT-0353-17-0132-B-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VANESSA REDUS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0353-17-0132-B-1
DATE: December 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vanessa Redus , Cordova, Tennessee, pro se.
Lori Markle , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the remand initial decision,
which denied her request for corrective action in this restoration appeal. On
petition for review, the appellant disagrees with the administrative judge’s
findings and asserts that she made “repeated efforts” to engage agency
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
management “for nearly a year beginning in July 2015.” Petition for Review File,
Tab 1. For the reasons discussed below, we GRANT the appellant’s petition for
review. We AFFIRM the administrative judge’s finding that the appellant proved
by preponderant evidence that she was absent from her position due to a
compensable injury, she recovered sufficiently to return to work in a position
with less demanding physical requirements, and the agency’s denial of her
restoration request was arbitrary and capricious. We REVERSE the
administrative judge’s finding that she did not prove that the agency denied her
restoration request and FIND INSTEAD that she proved that the agency denied
her restoration request. We FURTHER FIND that the appellant proved the
elements of her restoration appeal and GRANT her request for corrective action.
To prove the merits of her restoration appeal as a partially recovered
employee, the appellant must prove the following by preponderant evidence:
(1) she was absent from the 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; (3) the agency denied her request for restoration; and (4) the denial was
arbitrary and capricious. Cronin v. U.S. Postal Service , 2022 MSPB 13, ¶ 12;
Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365, ¶¶ 11-12 (2016). The
administrative judge found that the appellant proved elements (1), (2), and (4),
but she did not prove element (3). Redus v. U.S. Postal Service , MSPB Docket
No. AT-0353-17-0132-B-1, Remand File (RF), Tab 26, Remand Initial Decision
(RID) at 6-9. Based on the undisputed facts and agency concession, we affirm his
findings as to elements (1), (2), and (4). The only question before us is whether
the administrative judge properly concluded that the appellant did not prove
element (3).
In pertinent part, the administrative judge noted that partially recovered
employees may not appeal the details or circumstances of their restoration, but
under certain circumstances, a restoration may be deemed so unreasonable as to
3
amount to a denial of restoration. RID at 6 (citing Kingsley, 123 M.S.P.R. 365,
¶ 13). The administrative judge evaluated the appellant’s restrictions and the
October 1, 2015 modified duty assignment, and he concluded that “it was unclear
whether the position met the appellant’s restrictions.” RID at 8. Nevertheless,
the administrative judge found that the “very closeness of the discussion means
that the modified duty offer was not ‘so unreasonable as to amount to a denial of
restoration.’” RID at 8-9 (citing Kingsley, 123 M.S.P.R. 365, ¶ 13). He also
found that the appellant ignored repeated attempts by the agency to obtain
information regarding why the offer did not meet her restrictions and that her
decision to decline the agency’s offer and failure to engage with its information
requests meant that the offer was not an “effective denial” of restoration. RID
at 9 (citing Scott v. U.S. Postal Service , 59 M.S.P.R. 245, 247-49 (1993)).
Accordingly, he concluded that the appellant did not prove by preponderant
evidence that the agency effectively denied her restoration request. Id.
We disagree with the administrative judge’s analysis as to element (3).
The administrative judge correctly noted that the difference in parameters
between the October 1, 2015 modified duty assignment and the appellant’s
medical restrictions was that the modified duty assignment had an “Avg. Time
Spent” on fine manipulation of 4-8 hours per day, while her medical restrictions
stated that she could only do a maximum of 4 hours a day . RID at 8. Compare
Redus v. U.S. Postal Service , MSPB Docket No. AT-0353-17-0132-I-1, Initial
Appeal File (IAF), Tab 5 at 5, with IAF, Tab 11 at 8. Because the appellant was
restricted to a maximum of 4 hours a day of fine manipulation, it is not clear why
the agency would offer her a modified duty assignment that could have exceeded
such restrictions.2 Accordingly, we conclude that the agency’s response to her
2 Moreover, the agency admitted that the October 31, 2016 and December 1, 2016 return
to work notices were sent in error because it was somehow unaware of the second
outstanding injury compensation case. RID at 5; IAF, Tab 6 at 22, 27, Tab 16 at 5, 7.
4
July 6, 2015 restoration request was tantamount to a denial of restoration.3
Paszko v. U.S. Postal Service , 119 M.S.P.R. 207, ¶ 9 (2013). We therefore
conclude that the appellant proved the elements of her restoration appeal, and she
is entitled to corrective action.4
The proper remedy in this matter is for the agency to conduct an
appropriate search within the local commuting area retroactive to the date of the
appellant’s request for restoration, and to consider her for any suitable vacancies.
Scott v. U.S. Postal Service , 118 M.S.P.R. 375, ¶ 14 (2012). The remedy of a
retroactive search for available positions will be sufficient to correct the wrongful
action and substitute it with a correct one based on the appropriate search. Davis
v. U.S. Postal Service , 120 M.S.P.R. 122, ¶ 14 (2013), overruled on other
grounds by Cronin , 2022 MSPB 13. It will not, however, put the appellant in a
better position than she was in before the wrongful action because the agency
may not find an appropriate available position. The appellant may be entitled to
back pay only if the agency’s restorative search uncovers an available position to
which it could have restored her. Id.
3 The administrative judge properly noted that the appellant admitted that she did not
attend the ordered investigative interviews. RID at 4. However, we disagree with the
administrative judge’s characterization that the appellant “ignored repeated attempts by
the agency to obtain information regarding why the offer did not meet her restrictions.”
RID at 7, 9. Rather, the record reflects that she called the District Operations
Supervisor “almost each time” an investigative interview was scheduled, she also
contacted her union official who advised management as to the reason that she did not
attend those meetings, and she continued to provide CA-17 forms completed by her
doctor, dated October 8, 2015, February 5, 2016, February 19, 2016, and January 12,
2017. RID at 3; IAF, Tab 5 at 4-8, Tab 11 at 1-2, 4.
4 Although the appellant originally raised a claim of disability discrimination in this
matter, the administrative judge noted in the summary of prehearing conference that she
clarified that she was not raising such a claim on remand. RF, Tab 23 at 2. The
appellant did not file an objection or otherwise disagree with the administrative judge’s
statement in that regard, nor does she assert that the administrative judge’s failure to
adjudicate such a claim was error.
5
ORDER
We ORDER the agency to conduct a proper job search retroactive to July 6,
2015. 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.
In the event that the agency’s restorative job search uncovers an available
position to which it could have restored the appellant between July 6, 2015, and
January 18, 2017,5 we 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 efforts to calculate the amount of back pay, interest, and
benefits due, and to provide all necessary information the agency requests to help
it carry out the Board’s Order. If there is a dispute about the amount of back pay,
interest due, and/or other benefits, we ORDER the agency to pay the appellant the
undisputed amount no later than 60 calendar days after the date of this decision.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
5 The parties do not dispute that the agency offered to the appellant a limited duty
modified assignment on January 18, 2017, and the appellant accepted this assignment.
RID at 5; IAF, Tab 11 at 7-9.
6
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
7
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for 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 receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, 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 review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 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.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
12
DEFENSE FINANCE AND ACCOUNTING
SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
13
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | Redus_VanessaAT-0353-17-0132-B-1_Final_Order.pdf | 2024-12-23 | VANESSA REDUS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0353-17-0132-B-1, December 23, 2024 | AT-0353-17-0132-B-1 | NP |
301 | https://www.mspb.gov/decisions/nonprecedential/Reid_RodgerCH-0752-20-0218-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RODGER REID,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
CH-0752-20-0218-I-1
DATE: December 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rodger Reid , Wakeman, Ohio, pro se.
Briana Martino , Des Plaines, Illinois, for the agency.
Marquitta Robinson , Fort Worth, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
mitigated the appellant’s removal to a 120-day suspension. For the reasons
discussed below, we GRANT the agency’s petition for review, AFFIRM the
administrative judge’s conclusions regarding the charge, nexus, and the
appellant’s affirmative defense, REVERSE the administrative judge’s mitigation
of the penalty, and SUSTAIN the appellant’s removal.
BACKGROUND
The following facts are undisputed. The appellant was an Air Traffic
Control Specialist for the agency’s Federal Aviation Administration (FAA).
Initial Appeal File (IAF), Tab 6 at 10. Air Traffic Control Specialist is a Testing
Designated Position (TDP) for both drugs and alcohol, which means that this is a
position with critical safety or security-sensitive responsibilities and the
incumbent is subject to drug and alcohol testing under Department of
Transportation (DOT) Order 3910.1D.2 IAF, Tab 6 at 6, Tab 20 at 45, 121.
In the early morning hours of December 21, 2018, the appellant was
stopped by an officer of the Ohio State Highway Patrol, who suspected him of
driving under the influence of alcohol. IAF, Tab 6 at 122, 129. The appellant,
who admitted to drinking earlier that night, had difficulty completing a field
sobriety test and refused to take a breathalyzer test. Id. He was arrested and
charged with Operating a Vehicle under the Influence of Alcohol. Id. The
appellant notified the agency of his arrest the same day. Id. at 122. The
appellant pled no contest to the charge, and on May 28, 2019, he was convicted of
Operating a Vehicle under the Influence of Alcohol and given a 27-day suspended
sentence, with 3 days of credit for having attended a driver drug and alcohol
intervention program. IAF, Tab 6 at 25, Tab 20 at 34, 258-59.
2 The record contains two copies of DOT Order 3910.1D. IAF, Tab 6 at 29-119, Tab 20
at 35-127. We cite to the Order at Tab 20 because it is more current.2
Meanwhile, the agency had the appellant evaluated by a Licensed
Independent Social Worker, who diagnosed him with “Alcohol Dependence
requiring Intensive Outpatient Treatment.” IAF, Tab 6 at 21, 144, Tab 20 at 239,
247-52. On May 15, 2019, the agency offered to enroll the appellant in a
Treatment and Rehabilitation Plan (TRP) through its Employee Assistance
Program. IAF, Tab 6 at 144-50. The appellant declined the offer, and the agency
proposed his removal based on one charge of “Off-Duty Alcohol Misconduct by a
TDP Employee Subject to Alcohol Testing.” IAF, Tab 6 at 25-28, Tab 24 at 3.
After the appellant responded, the agency issued a decision removing him
effective January 9, 2020.3 IAF, Tab 6 at 10-24.
The appellant filed a Board appeal, contesting the reasons for the removal
and raising an affirmative defense of harmful procedural error. IAF, Tab 1 at 3,
5, Tab 10 at 3. The appellant did not request a hearing. IAF, Tab 1 at 2. After
the close of the record, the administrative judge issued an initial decision
mitigating the removal to a 120-day suspension. IAF, Tab 26, Initial Decision
(ID). He found that the agency proved its charge and established nexus, and that
the appellant failed to prove his affirmative defense. ID at 4-5, 12-13.
Nevertheless, he determined that the agency failed to consider the relevant
penalty factors and essentially disciplined the appellant for failing to enroll in a
TRP rather than for the underlying misconduct. ID at 5-9. He concluded that,
under the circumstances, the maximum reasonable penalty was a 120-day
suspension. ID at 9-12.
3 The same individual served as both the proposing and deciding official. IAF, Tab 20
at 235. The Board has found that such an arrangement is permissible, absent agency
regulation to the contrary. O’Neil v. Department of Transportation , 12 M.S.P.R. 212,
215 (1982).3
The agency has filed a petition for review, contesting the administrative
judge’s penalty analysis.4 Petition for Review (PFR) File, Tab 1. The appellant
has not filed a response.
ANALYSIS
In an appeal of an adverse action under 5 U.S.C. chapter 75, the agency
bears the burden of proving by preponderant evidence that its action was taken
for such cause as would promote the efficiency of the service. MacDonald v.
Department of the Navy , 4 M.S.P.R. 403, 404 (1980); 5 C.F.R. § 1201.56(a)(1)
(ii). To meet this burden, the agency must prove its charge, establish a nexus
between the charge and the efficiency of the service, and demonstrate that the
penalty imposed was reasonable. Pope v. U.S. Postal Service , 114 F.3d 1144,
1147 (Fed. Cir. 1997). However, even if the agency carries this burden, the
action may not be sustained if the appellant shows that it was the product of
harmful procedural error. 5 U.S.C. § 7701(c)(2)(A); see 5 C.F.R. § 1201.56(b)(2)
(i)(C). In this case, neither party has challenged the administrative judge’s
findings on the charge, nexus, or the appellant’s affirmative defense. These
findings appear to be correct on their face, and we will not revisit them on
review. See 5 C.F.R. § 1201.115 (stating that the Board normally will consider
only issues raised in a timely filed petition or cross petition for review).
Accordingly, the only remaining issue is penalty.
Because the agency’s only charge is sustained, the Board’s authority to
review the penalty is limited. Cantu v. Department of the Treasury , 88 M.S.P.R.
4 The administrative judge ordered interim relief, and the agency has provided a
certification of compliance under 5 C.F.R. § 1201.116(a). ID at 14; Petition for Review
(PFR) File, Tab 1 at 27-28. However, the agency stated that, not only would the
appellant’s return to the workplace be unduly disruptive, it was not able to provide him
with reinstatement and back pay in any event because his mandatory retirement date had
already passed during the period in which the 120-day suspension was supposed to
occur. PFR File, Tab 1 at 27-28. The appellant has not challenged the agency’s
certification, and we find that it is sufficient to show compliance with the interim relief
order.4
253, ¶ 4 (2001). Specifically, the Board reviews an agency-imposed penalty only
to determine if the agency considered all of the relevant factors and exercised
management discretion within tolerable limits of reasonableness. Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 306 (1981). In determining whether
the selected penalty is reasonable, the Board gives due deference to the agency’s
discretion in exercising its managerial function of maintaining employee
discipline and efficiency, recognizing that the Board’s function is not to displace
management’s responsibility but to assure that management judgment has been
properly exercised. Id. at 302. Thus, the Board will disturb an agency’s chosen
penalty only if it finds that the agency failed to weigh relevant factors or that the
agency’s judgment clearly exceeded the limits of reasonableness. Id. at 306. The
Board has identified a nonexhaustive list of factors that are normally relevant for
consideration in determining the appropriateness of a penalty. Id. at 305-06.
In this case, the administrative judge found that the agency’s penalty
selection did not merit deference because the agency did not properly exercise
managerial judgment in reaching its penalty determination. ID at 5-9.
Specifically, he found that the deciding official failed to consider several
important mitigating factors and that he based his penalty determination primarily
on misconduct with which the appellant was not charged, i.e., failure to enter into
an agency-overseen TRP. Id. On petition for review, the agency argues that the
administrative judge misconstrued the effect of the appellant’s failure to enter
into a TRP. Specifically, the agency argues that, under its regulations, the
appellant’s arrest and diagnosis of alcohol dependency required a removal action,
but that the removal would have been held in abeyance pending the appellant’s
successful completion of a TRP. PFR File, Tab 1 at 7-12. The agency also
argues that the deciding official properly considered the relevant Douglas factors
and that the administrative judge made several errors in his Douglas factor5
analysis. Id. at 15-24. We begin by examining the pertinent agency regulation,
DOT Order 3910.1D.5 Id. at 20 at 29-119.
Chapter XI of DOT Order 3910.1D, governs “drug and alcohol prohibitions
and disciplinary actions.” Id. at 108-17. Section 10 of that chapter pertains to
“off-duty alcohol-related conduct,” such as driving under the influence of
alcohol. Id. at 115. TDP employees are required to report promptly any arrest
for an off-duty alcohol related infraction, whereupon the agency “will ensure that
an assessment is conducted by a Substance Abuse Professional to determine
whether the employee is a candidate for rehabilitation.” Id. At that point, the
Substance Abuse Professional will determine that the employee is either “at risk”
or “not at risk.”6 Id. For an employee found not at risk, the agency is required to
take corrective action sufficient to impress upon him the seriousness of the
matter, require him to attend an alcohol education program, and warn him that
similar misconduct in the future will result in a removal action. Id. For an
employee found at risk, the agency will offer him a TRP. Id. If he declines the
TRP, DOT Order 3910.1D requires that the agency propose his removal and again
offer him a TRP. Id. “If the employee accepts the offer of the TRP, the decision
notice informs the employee that the implementation of the disciplinary/adverse
action is held in abeyance pending successful completion of the TRP. If the
employee declines the offer of a TRP, then the disciplinary/adverse action shall
be implemented.” Id.
Although the agency asserts on review that the appellant’s refusal of a TRP
did not affect the penalty analysis, there is evidence in the record to suggest that
5 The agency states that DOT Order 3910.1D is “based on” Executive Order 12564,
51 Fed. Reg. 32889 (Sept. 15, 1986). PFR File, Tab 1 at 4. Although this may be true
in part, at least with respect to employee use of illegal drugs, the executive order gives
wide latitude for agencies to craft their own policies, and it says nothing at all about
employee alcohol use.
6 The record does not reveal exactly what “risk” the Substance Abuse Professional is
supposed to be evaluating. We presume that it is a risk of re-offense, either on- or
off-duty.6
it did, and that it was, in fact, the sole determining factor. Specifically, the
deciding official stated in his decision letter that “[t]he DOT Order is very clear
that the Agency must remove a covered employee who refuses to enter or fails to
successfully complete counseling or a rehabilitation program under the
[Employee Assistance Program].” IAF, Tab 6 at 14. We disagree because that is
not what the Order says. The Order requires the agency to propose the removal
of a TDP employee who commits off-duty alcohol misconduct and refuses a TRP,
but it does not purport to limit the discretion of the deciding official to mitigate
the proposed penalty. IAF, Tab 20 at 115. Even if the Order could be interpreted
to require removal in such cases, we would not accept this interpretation because
it would be tantamount to a zero-tolerance policy that mandates removal as the
only possible penalty for a given offense. “Such a policy would render wholly
unnecessary application of the Douglas factors, which exist to guard against
arbitrary penalties.” Baird v. Department of the Army , 517 F.3d 1345, 1351 (Fed.
Cir. 2008). The Board has repeatedly held that, when an agency imposes removal
under a zero-tolerance policy without giving bona fide consideration to the
appropriate Douglas factors, its penalty determination is not entitled to deference.
See, e.g., Wiley v. U.S. Postal Service , 102 M.S.P.R. 535, ¶ 15 (2006), aff’d,
218 F. App’x 1001 (Fed. Cir. 2007); Omites v. U.S. Postal Service , 87 M.S.P.R.
223, ¶ 11 (2000).
Nevertheless, there is other evidence in the record to suggest that the
deciding official weighed the relevant penalty factors in arriving at his decision.
The agency submitted a written and signed statement by the deciding official,
discussing the appellant’s “good record” in contrast to his lack of remorse and the
deciding official’s loss of trust and confidence in him.7 IAF, Tab 20 at 235-36.
7 The statement purports to be an affidavit. IAF, Tab 20 at 1, 235-36. However, it fails
to meet the requirements of an affidavit because it was not sworn before a notary public
or other person authorized to administer oaths. Id. at 235-36; see Adamsen v.
Department of Agriculture , 116 M.S.P.R. 331, ¶ 15 (2011). The statement also fails to
meet the requirements of a declaration pursuant to 28 U.S.C. § 1746, because it was not7
Nevertheless, the deciding official does not explicitly state that he weighed these
factors in arriving at his penalty selection. The removal decision itself states that
the deciding official considered the appellant’s 34 years of service, his lack of
prior discipline, and his good work performance, but that these “positive
attributes” did not outweigh the seriousness of his misconduct. IAF, Tab 6 at 14.
However, as explained above, the decision letter goes on to state that the
appellant “must” be removed pursuant to DOT Order 3910.1D. Considering the
conflicting evidence, and mindful that the agency bears the burden of proof on the
issue of penalty, we agree with the administrative judge that the agency failed to
prove that the deciding official gave bona fide consideration to the appropriate
Douglas factors and that the agency’s penalty section is therefore not entitled to
deference. ID at 9. We will therefore independently weigh the relevant Douglas
factors to evaluate the reasonableness of the penalty. See Cunningham v. U.S.
Postal Service, 112 M.S.P.R. 457, ¶ 6 (2009).
Before proceeding to our independent assessment of the Douglas factors,
we must clarify two points. First, we do not agree with the administrative judge
that the agency, in essence, removed the appellant based on uncharged
misconduct, i.e., failure to undergo a TRP. ID at 7-8. The mere fact that an
aggravating penalty consideration does not fall within the scope of the charge
does not transform it into uncharged misconduct, even if that factor is the
overriding reason for the chosen penalty.
Second, we do not agree with the administrative judge that the appellant
was subjected to an inconsistent penalty as compared to two other agency
employees. ID at 8-9, 11. The administrative judge found that these employees
were convicted of off-duty alcohol-related offenses but received no discipline at
signed “under penalty of perjury.” IAF, Tab 20 at 235-36; see Adamsen, 116 M.S.P.R.
331, ¶ 15. It is therefore nothing more than an unsworn statement, and we assign its
weight accordingly. See Social Security Administration v. Whittlesey , 59 M.S.P.R. 684,
692 (1993) (stating that a sworn statement has greater weight than one that is unsworn),
aff’d, 39 F.3d 1197 (Fed. Cir. 1994) (Table).8
all. Id. The agency argues for the first time on review that these two employees
were treated differently because the Substance Abuse Professionals who assessed
them found them to be “not at risk.” PFR File, Tab 1 at 16-17. However, if the
agency wished for the Board to consider this information, it should have raised
the matter below, see Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980), and in any event, the assertions of agency counsel in the petition for
review do not constitute evidence of the facts that the agency now proffers, see
Hendricks v. Department of the Navy , 69 M.S.P.R. 163, 168 (1995).
Nevertheless, having reviewed the evidence of record in light of the Board’s
decision in Singh v. U.S. Postal Service , 2022 MSPB 15, ¶¶ 9-18, we find
insufficient information to conclude that the appellant and the comparators were
similarly situated.8 Putting the issue of their substance abuse assessments aside,
the record does not reveal what positions these employees held, where they were
stationed, or who was in their chain of command, all of which are important
factors in determining comparability. IAF, Tab 10 at 3, Tab 21 at 59-60, 63,
Tab 24 at 3; see Singh, 2022 MSPB 15, ¶ 13.
Proceeding to our independent assessment of the penalty factors, despite
the agency’s failure to conduct a proper penalty analysis in this case, we find that
removal was still the most reasonable penalty under the circumstances.
Specifically, we agree with the agency that the appellant’s offense of off-duty
alcohol misconduct is serious as it relates to the nature and duties of his position.
PFR File, Tab 1 at 22-23. Although the charged offense occurred off duty, as an
Air Traffic Control Specialist, the appellant “had enormous responsibility for the
lives and property of others.” Scott v. Department of Transportation ,
45 M.S.P.R. 639, 644 (1990). “The position entails awesome pressures and
requires split second decisions. Few, if any, positions demand more alertness of
mind and soundness of judgment and the stress and strains of the controller are
8 The administrative judge did not have the benefit of Singh at the time he issued his
initial decision.9
incalculable.” Borsari v. Federal Aviation Administration , 699 F.2d 106, 110 (2d
Cir. 1983). Therefore, the agency rightly treats with the utmost seriousness, as
reflected in DOT Order 3910.1D, any indication that an Air Traffic Control
Specialist’s use of mind-altering substances might impinge on his exercise of
judgment while on duty.
The agency requires a risk assessment be undertaken when an Air Traffic
Control Specialist engages in off-duty alcohol-related misconduct. IAF, Tab 20
at 115. In this case, the appellant underwent two assessments. The first
assessment was made in the context of a driver drug and alcohol intervention
program that he attended in connection with the criminal proceedings, and the
second was the agency-directed assessment prescribed in DOT Order 3910.1D.
Id. at 115, 248, 259. After a screening in the driver intervention program, the
appellant was found not to have signs or symptoms of alcohol dependency and no
further assessment was recommended, id. at 259, but the agency-ordered
assessment resulted in a finding that the appellant suffered from substance
dependence that could reasonably be expected to render him unable to perform
the duties of his position, id. at 248. Although these results may appear to be
incongruous on their face, we decline to find that the agency’s assessment is,
therefore, invalid. Rather, we conclude that the reason for the difference is that
the agency-directed evaluation applied the FAA’s Medical Standards for
Substance Dependence, which do not align with the criteria for substance abuse
under the Diagnostic and Statistical Manual of Mental Disorders. Id. We find
nothing to prevent the agency from tailoring its substance abuse assessment
criteria to its specific needs as an employer, and despite the appellant’s opinion to
the contrary and the results of the court intervention program, we see no error in
the agency’s determination that the appellant’s alcohol misuse represented a risk.
Despite the agency’s determination, the appellant insisted that there was no
risk to the agency or the flying public, and despite the agency’s repeated
entreaties, the appellant refused to enter into a TRP, the successful completion of10
which would have both allayed the agency’s concerns and allowed him to keep
his job. IAF, Tab 6 at 14-15, 27-28, 144-150, Tab 20 at 235-36, Tab 24 at 3.
Instead, the appellant met the agency’s offer with recriminations and baseless
accusations of insurance fraud. IAF, Tab 6 at 18-23, Tab 20 at 227. He also
insisted that his off-duty alcohol misuse was unrelated to his official duties and
that he should not suffer any employment-related consequences for it. IAF, Tab 6
at 18, Tab 20 at 229-30. Under these circumstances, we find that the deciding
official’s loss of trust and confidence in the appellant was well-founded. IAF,
Tab 20 at 235; see Woodford v. Department of the Army , 75 M.S.P.R. 350, 357
(1997) (“Loss of trust is a significant aggravating factor.”).
Nevertheless, there are some mitigating factors present in this case. We
agree with the administrative judge that the appellant’s 34 years of good,
discipline-free service weigh strongly in his favor. ID at 10. However, we do not
agree with the administrative judge that the appellant’s self-report of his arrest
was a significant mitigating factor. ID at 8. Under DOT Order 3910.1D, a TDP
employee who is arrested for an off-duty alcohol-related driving infraction must
notify the agency promptly, and his failure to do so constitutes a separate act of
chargeable misconduct. IAF, Tab 20 at 115, 132. An agency is entitled to expect
its employees to follow their supervisors’ instructions. Meads v. Veterans
Administration, 36 M.S.P.R. 574, 584 (1988). By self-reporting, the appellant
may have avoided making matters worse, but he was doing no more than was
required of him.
Nor do we find the appellant’s enrollment in the driver drug and alcohol
intervention program to be a significant mitigating factor. ID at 8. His
enrollment in the program may have been voluntary in the sense that the court did
not order him to do it, but he enrolled with the understanding that it would count
as credit toward his 30-day sentence. IAF, Tab 20 at 34, 226, 238. We are
therefore not persuaded by the appellant’s claim that he enrolled “in hopes of
mitigating and expediting [his] return to duties.” IAF, Tab 6 at 18. Instead, it11
appears that the appellant happened to have had two separate and distinct
substance abuse evaluations, and he insisted that credence should only be given to
the evaluation that was more favorable to him. Finally, for the reasons explained
above, we find insufficient evidence to conclude that consistency of the penalty is
a mitigating factor in this appeal.
Considering the totality of the circumstances, we find that removal is a
reasonable penalty for the charged misconduct. An arrest for driving under the
influence of alcohol is a serious offense for an Air Traffic Control Specialist, and
removal for a first offense falls within the parameters of the agency’s table of
penalties. IAF, Tab 20 at 134. Therefore, we reverse the administrative judge’s
mitigation of the penalty and sustain the appellant’s removal.
NOTICE OF APPEAL RIGHTS9
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
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.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 particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain13
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2001314
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a 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:
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 15
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.16 | Reid_RodgerCH-0752-20-0218-I-1_Final_Order.pdf | 2024-12-20 | RODGER REID v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. CH-0752-20-0218-I-1, December 20, 2024 | CH-0752-20-0218-I-1 | NP |
302 | https://www.mspb.gov/decisions/nonprecedential/Stark_Tory_M_PH-0752-23-0165-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TORY M. STARK,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-0752-23-0165-I-1
DATE: December 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tory M. Stark , China, Maine, pro se.
Alexander R. Willette and Alvah J. Chalifour, Jr. , Augusta, Maine, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction or, alternatively, as untimely
filed without good cause shown. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. We VACATE the
administrative judge’s finding that the Board lacks jurisdiction over the appeal,
but we AFFIRM the administrative judge’s alternative finding regarding
timeliness. We DISMISS the initial appeal as untimely filed.2
Generally, an appeal must be filed with the Board no later than 30 days
after the effective date of the agency’s adverse action, or 30 days after the date of
the appellant’s receipt of the agency’s decision, whichever is later. 5 C.F.R.
§ 1201.22(b)(1). If an appellant submits an appeal outside of the applicable
timeframe, the administrative judge will provide him with an opportunity to show
2 The agency’s response to the appellant’s petition for review was due November 3,
2023; however, it did not file a response until November 28, 2023. Petition for Review
(PFR) File, Tab 5, Tab 7 at 1. Both before and after its submission, the agency filed a
request for an extension of time, and, later, a motion to accept its filing as timely filed
or to waive the time limit. PFR File, Tabs 4, 8. Both pleadings explain the
circumstances surrounding the agency’s delay, namely, the Board’s implementation of
the new e-Appeal system and counsel’s multiple unsuccessful attempts to register as an
e-filer. PFR File, Tabs 4, 8. In recognition of this effort, the appellant requested that
the Board “deem [the agency’s] filing as timely and consider waiving or modifying the
deadline for their submission accordingly.” PFR File, Tab 9 at 3. Given the technical
complications experienced by e-Appeal users during this critical time, along with the
appellant’s acquiescence, we grant the agency’s motion and waive the filing deadline
for its response to the appellant’s petition for review. As such, we have considered that
response here.2
why the appeal should not be dismissed as untimely. 5 C.F.R. § 1201.22(c). The
appellant bears the burden of proof on the timeliness issue. 5 C.F.R. § 1201.56(a)
(2)(ii).
In the initial decision, the administrative judge correctly explained that the
appellant filed his appeal approximately 268 days after his removal became
effective on June 13, 2022. Initial Decision (ID) at 7; Initial Appeal File (IAF),
Tab 1, Tab 5 at 29. The appellant does not dispute that the appeal was untimely
filed; the issue here is whether good cause exists.
To establish good cause for the untimely filing of an appeal, an appellant
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 or 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 appeal. Moorman v. Department of the Army , 68 M.S.P.R. 60,
62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
In the initial decision, the administrative judge observed that the
appellant’s appeal was untimely filed by approximately 8 months and that he was
made aware of his appeal rights several times. ID at 7. The administrative judge
also acknowledged the appellant’s argument that he was so distraught over the
series of events leading up to and immediately after his removal that he was
unable to file a timely appeal. Id. However, he concluded that the appellant’s
general claims that he was “distraught and anxious and suffering from marital
discord do not establish good cause for such a lengthy delay.” Id. The
administrative judge also acknowledged that the appellant submitted medical
documentation concerning his anxiety and depression but concluded that it did3
not explain how his anxiety and depression prevented him from timely filing an
appeal. ID at 7-8. Finally, the administrative judge considered the appellant’s
explanation that he was waiting for the agency’s review board’s decision, but he
reasoned that the appellant’s actions in that regard “all highlight the fact that the
appellant was more than capable of filing a Board appeal.” ID at 8. Accordingly,
he found that, in the alternative, the appeal should be dismissed as untimely filed
without good cause shown.
On review, the appellant argues that the administrative judge
“underestimated” the gravity of his depression. Petition for Review (PFR) File,
Tab 1 at 5. Although we are sympathetic to the appellant’s situation, he has still
not explained how, or submitted evidence demonstrating that, his mental health
condition precluded him from filing a timely appeal. See Braxton v. Department
of the Treasury , 119 M.S.P.R. 157, ¶ 7 (2013) (stating that an appellant must,
among other things, explain how the illness prevented him from timely filing his
appeal or a request for an extension of time to establish good cause for failure to
file on time due to an illness); Lacy v. Department of the Navy , 78 M.S.P.R. 434,
437 (1998) (explaining that the Board will find good cause to waive a filing limit
when a party shows that he suffered from an illness that affected his ability to file
on time). For instance, the appellant has not shown that he was unable to
comprehend the filing deadline or otherwise unable to focus due to his mental
condition. To the contrary, and as noted by the administrative judge, in the time
following his removal but before he filed his appeal, the appellant appears to have
been actively involved in the process concerning agency review of the AR 16-5
investigation. IAF, Tab 6 at 6, 8-14, Tab 9 at 12. He has not explained why his
mental health condition or, as also argued on review, the agency’s “deceptive
behavior,” PFR File, Tab 1 at 5, hindered his ability to timely file an appeal but
otherwise did not interfere with his ability to engage with the agency.4
Accordingly, we dismiss the appeal as untimely. We need not reach the
issue of jurisdiction, and therefore we vacate the administrative judge’s finding
that the Board lacks jurisdiction over the appeal.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 205077
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Stark_Tory_M_PH-0752-23-0165-I-1_Final_Order.pdf | 2024-12-20 | TORY M. STARK v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-0752-23-0165-I-1, December 20, 2024 | PH-0752-23-0165-I-1 | NP |
303 | https://www.mspb.gov/decisions/nonprecedential/Brown_Patricia_J_SF-0752-20-0033-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA J. BROWN,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
SF-0752-20-0033-I-1
DATE: December 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Geoffrey P. Brown , Steilacoom, Washington, for the appellant.
Allyson Gault and Brian Hurt , Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal for excessive use of leave without pay (LWOP). Generally,
we grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
1 A nonprecedential order is one that the Board has determined does not add significantly
to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders
have no precedential value; the Board and administrative judges are not required to
follow or distinguish them in any future decisions. In contrast, a precedential decision
issued as an Opinion and Order has been identified by the Board as significantly
contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED with respect to the leave that can be considered in support of
the charge and the appellant’s reasonable accommodation defense, we AFFIRM the
initial decision.
BACKGROUND
The appellant was a Whistleblower Investigator for the agency. Initial
Appeal File (IAF), Tab 6 at 31. On March 18, 2016, the appellant’s first-line
supervisor requested a meeting with the appellant, during which they discussed a
number of recent incidents where the supervisor believed the appellant failed to
follow procedures and acted in an unprofessional manner. IAF, Tab 1 at 17; Tab 12
at 98, 103-04; HCD 1 (testimony of appellant’s first-line supervisor). During the
course of the meeting, the appellant became unhappy and expressed concern that
she was going to be disciplined. IAF, Tab 37, Hearing Compact Disc (HCD) 2
(testimony of the appellant). Although the appellant’s supervisor did not institute
any formal discipline during the meeting, he did inform her that discipline could
result going forward. IAF, Tab 12 at 104. Following the meeting, the appellant
made an appointment to see her physician and received a letter excusing her from
work for one week “due to medical condition.” IAF, Tab 1 at 17, Tab 14 at 58. The
appellant did not return to work at any point thereafter. On February 16, 2017, the
appellant’s first-line supervisor proposed her removal from Federal service based2
on a charge of excessive use of LWOP. IAF, Tab 6 at 19-22. After the appellant
responded, on September 22, 2017, the deciding official issued a decision removing
the appellant effective September 25, 2017. Id. at 27-30.
On November 27, 2017, the appellant filed a formal equal employment
opportunity (EEO) complaint, which the agency accepted as a mixed case
complaint, alleging among other things that her removal was discriminatory based
on age, sex, and disability, and in retaliation for prior EEO activity. Id. at 32-33.
On September 23, 2019, the agency issued a final decision finding no
discrimination. Id. at 32-52.
On October 16, 2019, the appellant timely filed the instant Board appeal,
contesting the merits of her removal and raising affirmative defenses of disability
discrimination, retaliation for protected EEO activity, and retaliation for protected
whistleblowing. IAF, Tab 1 at 2-31. After a hearing, the administrative judge
issued an initial decision sustaining the removal and finding that the appellant did
not prove any of her affirmative defenses. IAF, Tab 40, Initial Decision (ID).
The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved its charge .
The administrative judge analyzed the charge under the excessive absence
framework set forth in Cook v. Department of the Army , 18 M.S.P.R. 610, 611-12
(1984). ID at 9-11. The parties do not dispute the propriety of this analytical
framework, and we agree that it is applicable in this case.2 To support a charge of
2 The Board has stated that multiple types of approved absence can potentially form the
basis for an excessive absence charge. McCauley v. Department of the Interior ,
116 M.S.P.R. 484, ¶ 10 (2011). In this case, however, the agency labeled its charge as
excessive use of LWOP. IAF, Tab 13 at 79. Therefore, we will only consider LWOP in
determining whether the appellant’s absences were excessive. An agency must prove its
charge according to its label. Otero v. U.S. Postal Service , 73 M.S.P.R. 198, 203-04
(1997). 3
excessive absence, an agency must prove the following: (1) the employee was
absent for compelling reasons beyond her control so that agency approval or
disapproval of leave was immaterial because she could not be on the job; (2) the
absences continued beyond a reasonable time, and the agency warned the employee
that an adverse action could be taken unless she became available for duty on a
regular, full-time or part-time basis; and (3) the agency showed that the position
needed to be filled by an employee available for duty on a regular, full-time or
part-time basis. Cook, 18 M.S.P.R. at 611-12. The administrative judge found that
the agency met its burden as to each element of the charge. ID at 9-11.
After the initial decision was issued, the Board issued an Opinion and Order
in Williams v. Department of Commerce , 2024 MSPB 8, ¶¶ 6-8, clarifying that only
absences that postdate the required warning can be used to support a charge of
excessive absence. In this case, the appellant was first warned of the possibility of
discipline for excessive approved absences on November 30, 2016. IAF, Tab 15
at 68-70. Therefore, the appellant’s absences through that date cannot be
considered in support of the charge. See Williams, 2024 MSPB 8, ¶ 12.
Nevertheless, the charged LWOP extended through the date of the February 17,
2017 proposed removal—a continued absence of more than 11 weeks, or more than
400 hours of LWOP, excluding weekends and Federal holidays. IAF, Tab 6 at 19.
We find that these absences are sufficient to support the agency’s charge. See
Gartner v. Department of the Army , 104 M.S.P.R. 463, ¶ 10-11 (2007) (sustaining
an excessive absence charge based on 333.5 hours of absence during a 6-month
period).
On review, the appellant argues that the agency’s charge was based, in part,
on leave protected under the Family and Medical Leave Act of 1993 (FMLA). PFR
File, Tab 1 at 12. The appellant is correct that an employee cannot be disciplined
for taking leave under the FMLA, and that leave protected under that statute cannot
be used to support a charge of excessive absence. See McCauley v. Department of
the Interior, 116 M.S.P.R. 484, ¶ 11 (2011). However, the record is ambiguous as4
to whether the agency considered any FMLA-covered leave in taking the removal
action, and in any event, even if the agency did so, the Board will remedy this error
by excluding such leave from the calculation. See Williams, 2024 MSPB 8, ¶ 14.
Because none of the appellant’s absences after the November 23, 2016 warning
letter were covered under the FMLA, the appellant’s argument provides no basis to
disturb the initial decision.
The appellant further argues that the agency failed to demonstrate that her
position needed to be filled by an employee available for duty on a regular,
full-time basis. She argues that, following her removal, the agency delayed filling
her vacancy for over a year, which demonstrated that it was the agency’s own
actions that caused any staffing shortages. PFR File, Tab 1 at 13-16. We disagree.
The record reflects that in the November 30, 2016 and July 11, 2017 return to duty
letters, the agency specifically informed the appellant that her absences were
adversely affecting its ability to accomplish its mission. IAF, Tab 15 at 69, 89.
The appellant’s first- and second-line supervisors also provided unrebutted
testimony that the Whistleblower Office was short-staffed during the time period
that the appellant was on leave. ID at 11; Hearing Recording, Day 1 (testimony of
appellant’s first -line supervisor, testimony of appellant’s second-line supervisor).
The appellant has not provided any evidence to rebut this testimony, and the speed
with which the agency was able to subsequently fill the appellant’s vacant position
has no bearing on that conclusion.
For the reasons explained above and in the initial decision, we agree with the
administrative judge that the appellant was absent for compelling reasons beyond
her control, the agency warned her that she could be disciplined for excessive
approved absences, the appellant’s absences continued beyond a reasonable time,
and the agency needed the position to be filled by someone regularly available for
duty.5
The penalty of removal is reasonable.
Where, as here, the agency’s charges have been sustained, the Board will
review the penalty only to determine whether the agency considered all of the
relevant factors and exercised management discretion within tolerable limits of
reasonableness. Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981).
The administrative judge considered the deciding official’s testimony and found
that he considered the relevant factors and reasonably concluded that removal was
an appropriate penalty for the appellant’s excessive absences. ID at 27-29.
On review, the appellant argues that the penalty of removal was excessive
and beyond the bounds of reasonableness, that alternative sanctions less than
removal were available, and that the deciding official failed to consider the
Douglas factor relating to potential mitigating circumstances. PFR File, Tab 1
at 14, 18-21, 23. We have considered the appellant’s arguments, but we disagree.
The deciding official provided testimony demonstrating that he considered the
relevant Douglas factors in making his penalty determination, including the nature
and seriousness of the charge, taking into account the length of time the appellant
had been absent, the agency’s inability to meet its workload demands due to the
appellant’s absences, and the fact that she was unable to return to her duties. ID
at 29. Contrary to the appellant’s assertion otherwise, the deciding official also
specifically considered the relevant mitigating factors, including the appellant’s
length of service and lack of prior discipline, but ultimately concluded that they
were outweighed by the need to have her duties completed, and that removal was
appropriate. ID at 26-30; see Nagel v. Department of Health & Human Services ,
707 F.2d 1384, 1386 (Fed. Cir. 1983) (noting that the Board “never intended that
each [Douglas] factor be applied mechanically” and that “neither statute nor
regulation requires an agency to demonstrate that it considered all mitigating
factors”); Chavez v. Small Business Administration , 121 M.S.P.R. 168, ¶ 9 (2014)
(stating that a deciding official does not have to consider each of the Douglas
factors in making his penalty determination). 6
The ultimate issue in determining whether the Board should exercise its
mitigation authority is not whether the Douglas factors could have been weighed
differently, but whether the agency considered the relevant Douglas factors and
reasonably exercised management discretion in making its penalty determination.
Kirkland v. Department of Homeland Security , 119 M.S.P.R. 74, ¶ 25 (2013).
Accordingly, we discern no error with the agency’s weighing of the relevant
Douglas factors, and we agree with the administrative judge’s conclusion that the
removal decision did not exceed the bounds of reasonableness. ID at 29-30; see
Curtis v. U.S. Postal Service , 111 M.S.P.R. 626, ¶¶ 2, 10 (2009) (finding that
77 days of LWOP in an approximately 4-month period constituted excessive
absences and that the penalty of removal was reasonable), overruled on other
grounds by McCauley , 116 M.S.P.R. 484, ¶ 10. The Board has long held that a
prolonged absence with no foreseeable end is sufficient to support a removal. E.g.
Lattanzi v. Department of Health & Human Services , 12 M.S.P.R. 307, 309 (1982).
The appellant did not prove her whistleblower defense.
To prove an affirmative defense of reprisal for protected whistleblowing, an
appellant must show that she made a protected disclosure or engaged in protected
activity and that the disclosure or activity was a contributing factor in the personnel
action at issue. If the appellant makes this showing, the burden shifts to the agency
to prove by clear and convincing evidence that it would have taken the personnel
action absent the protected disclosure or activity. Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶ 49. In this case, the appellant’s whistleblower
defense concerns a December 21, 2015 disclosure that she made to an acting
Assistant Secretary of Labor regarding the agency’s decision to dismiss a particular7
complaint.3 IAF, Tab 12 at 44-46. The administrative judge found that this
disclosure was not protected. ID at 22-26.
On petition for review, the appellant argues that her disclosure evidenced a
violation of law because the agency’s decision was based on an incorrect
application of the Federal Railroad Safety Act. PFR File, Tab 1 at 6-7, 24-26.
However, an erroneous agency ruling is not a “violation of law” within the meaning
of the Whistleblower Protection Act. O’Donnell v. Department of Agriculture ,
120 M.S.P.R. 94, ¶ 15 (2013). The appellant also argues that her disclosure
evidenced a substantial and specific danger to public health or safety because it
concerned a breach in a railroad’s perimeter fencing. PFR File, Tab 1 at 25-26. In
her disclosure, the appellant listed several reasons that the railroad employee’s
account of his injury should be believed, including that the area was “not secured.”
IAF, Tab 12 at 45. However, even putting aside the fact that the appellant was
clearly not intending to disclose a danger to public safety, we find that her vague,
passing statement that the area was “not secured” does not amount to a protected
disclosure. See Gabel v. Department of Veterans Affairs , 2023 MSPB 4, ¶ 6
(“[D]isclosures must be specific and detailed, not vague allegations of
wrongdoing.”). Because we agree with the administrative judge that the
appellant’s disclosure was not protected, we find that the appellant’s arguments
about the agency’s treatment of similarly situated non-whistleblowers is
immaterial. PFR File, Tab 1 at 28-30.
The appellant did not prove her disability discrimination defenses.
The appellant argues that the agency violated the Rehabilitation Act by
failing to provide her a reasonable accommodation and by subjecting her to
3 The appellant also filed a statement with the Office of Special Counsel’s (OSC)
Disclosure Unit, detailing this same disclosure, along with two others. IAF, Tab 12
at 72-74. The administrative judge found that this activity was not a contributing factor
in the appellant’s removal. ID at 26-27. On petition for review, the appellant argues that
her disclosure to OSC is beside the point because her whistleblower defense is based on
her disclosure to the acting Assistant Secretary. PFR File, Tab 1 at 23-24.8
disparate treatment. IAF, Tab 8 at 1, Tab 10 at 1, Tab 29 at 3. The administrative
judge found that the appellant did not prove her reasonable accommodation claim
because her request for reassignment to a new supervisor did not constitute a
request for reasonable accommodation. ID at 14-15. The appellant disputes the
administrative judge’s analysis on review. PFR File, Tab 1 at 9-11, 22-23. We
have considered the appellant’s arguments, but we agree with the administrative
judge’s conclusion. The Equal Employment Opportunity Commission has held that
an employer does not need to change a person’s supervisor as a form of reasonable
accommodation. Bates v. Department of Veterans Affairs , EEOC Appeal No.
0120080540, 2010 WL 1840758, at *6 (Apr. 30, 2010).
After her removal was proposed, the appellant also requested reasonable
accommodation in the form of continued LWOP. IAF, Tab 16 at 96-99. The
administrative judge did not address this issue, so we will do so here. It is
well-settled that LWOP can be a form of reasonable accommodation. Joanna V. v.
Department of Veterans Affairs , EEOC Appeal No. 0120170771, 2018 WL
4801826, at *6 (Sept. 18, 2018). However, open-ended LWOP with no end in sight
is not a form of accommodation contemplated under the Rehabilitation Act.4
Breanne H. v. Department of Homeland Security , EEOC Appeal No. 2023002327,
2024 WL 1483759, at *7 (Mar. 26, 2024). For these reasons, we agree with the
administrative judge that the appellant did not prove her reasonable
accommodation defense.
Regarding the appellant’s disparate treatment disability discrimination
defense, she bears the burden of proving that she is a qualified individual with a
4 To the extent that the appellant posited October 30, 2018 as an end date for her LWOP,
IAF, Tab 16 at 98, we find that continued LWOP still would not have been a reasonable
accommodation because the appellant has not explained how this additional leave would
have enabled her to return to duty. Moreover, in light of the appellant’s already lengthy
absence and the agency’s need to have the position filled, we agree with the agency that
providing several additional months of LWOP would have been an undue hardship under
the circumstances. IAF, Tab 15 at 91; see Keene v. Department of the Interior , EEOC
Petition No. 03920008, 1992 WL 1374160, at * 5 (Jan. 1, 1992).9
disability and that her disability was at least a motivating factor in the action under
appeal. Haas v. Department of Homeland Security , 2022 MSPB 36, ¶ 28; Pridgen,
2022 MSPB 31, ¶ 40. The administrative judge found that the appellant presented
essentially no evidence to support her claim. ID at 16-17. The appellant disputes
this finding on review, PFR File, Tab 1 at 29, but she has still not identified any
evidence in the record in support of her defense. We agree with the administrative
judge’s findings on this issue.
The appellant’s remaining arguments provide no basis to disturb the initial
decision.
On review, the appellant disputes the administrative judge’s characterization
of an incident that occurred on October 15, 2015. PFR File, Tab 1 at 5-6; ID at 3-4.
However, we find that the administrative judge’s characterization of the incident is
supported by the record, and in any event, the details of it are immaterial to the
issues in this appeal.5 We observe that the appellant does not contest the
administrative judge’s finding on her claim of retaliation for prior EEO activity,
and for the reasons explained in the initial decision, we agree with the
administrative judge that the appellant did not show that her EEO activity was a
motivating factor in her removal. ID at 17-19.
5 To the extent that the appellant is arguing that her absences were occasioned by her
supervisor’s behavior, the administrative judge did not docket this as a constructive
suspension appeal. Cf. Peoples v. Department of the Navy , 83 M.S.P.R. 216, ¶ 7 (1999)
(“[A]llegations of intolerable working conditions may establish an involuntary or
constructive suspension.”). If the appellant wishes to file a constructive suspension
appeal, nothing in the Final Order prevents her from doing so. However, if the appellant
chooses to file a constructive suspension appeal, she will bear the burden of proof on the
issues of jurisdiction and timeliness. 5 C.F.R. § 1201.56(b)(2)(i). 10
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review
of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims
determines the time limit for seeking such review and the appropriate forum with
which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of
available appeal rights, the Merit Systems Protection Board does not provide legal
advice on which option is most appropriate for your situation and the rights
described below do not represent a statement of how courts will rule regarding
which cases fall within their jurisdiction. If you wish to seek review of this final
decision, you should immediately review the law applicable to your claims and
carefully follow all filing time limits and requirements. Failure to file within the
applicable time limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review below
to decide which one applies to your particular case. If you have questions about
whether a particular forum is the appropriate one to review your case, you should
contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
6 Since the issuance of the initial decision in this matter, the Board may have updated the
notice of review rights included in final decisions. As indicated in the notice, the Board
cannot advise which option is most appropriate in any matter.11
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination .
This option applies to you only if you have claimed that you were affected by an
action that is appealable to the Board and that such action was based, in whole or in
part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil
action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017).
If you have a representative in this case, and your representative receives this
decision before you do, then you must file with the district court no later than
30 calendar days after your representative receives this decision. If the action
involves a claim of discrimination based on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a
court-appointed lawyer and to waiver of any requirement of prepayment of fees,
costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 12
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),13
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent
jurisdiction.7 The court of appeals must receive your petition for review within 60
days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on July
7, 2018, permanently allows appellants to file petitions for judicial review of MSPB
decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the
Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All
Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat.
1510. 14
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15 | Brown_Patricia_J_SF-0752-20-0033-I-1_Final_Order.pdf | 2024-12-20 | PATRICIA J. BROWN v. DEPARTMENT OF LABOR, MSPB Docket No. SF-0752-20-0033-I-1, December 20, 2024 | SF-0752-20-0033-I-1 | NP |
304 | https://www.mspb.gov/decisions/nonprecedential/Smith_ValerieCH-0752-20-0182-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VALERIE SMITH,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-20-0182-I-1
DATE: December 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rebecca L. Fisher , Esquire, San Antonio, Texas, for the appellant.
Deborah L. Lisy , Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the agency’s removal decision. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to supplement the initial decision’s analysis of the appellant’s sex
discrimination claim, we AFFIRM the initial decision.
BACKGROUND
The appellant was the Postmaster for the U.S. Postal Service’s Cedarburg
Post Office. Initial Appeal File (IAF), Tab 12 at 57. Prior to this, from
September 2015 to March 2018, she was the Postmaster for the agency’s Kiel
Post Office. Id. at 57-58. In December 2018, the agency proposed to remove the
appellant for unacceptable conduct based on disclosing her log-on and password
credentials to subordinate employees during her time as the Postmaster of the
Kiel Post Office. IAF, Tab 11 at 74-79. Specifically, the narrative in support of
the charge stated that, between May 2016 and February 2018, the appellant
provided her log-on credentials on an ongoing basis to multiple employees for the
purposes of entering their own timekeeping and performing other duties requiring
the appellant’s level of access. Id. Following the appellant’s oral reply, the
agency sustained the proposed removal, effective December 17, 2019. Id.
at 60-66.
The appellant subsequently appealed her removal to the Board, arguing that
the agency could not prove the charge, the penalty was not reasonable, and the
agency engaged in sex discrimination. IAF, Tab 1 at 6, Tab 20 at 4. After the2
appellant withdrew her request for a hearing, IAF, Tab 22, the administrative
judge issued an initial decision affirming the agency’s removal action, IAF,
Tab 31, Initial Decision (ID) at 1.
The administrative judge first found that the appellant admitted that she
had given her log-on information to multiple employees and allowed at least one
employee to continually use her log-on credentials. ID at 4. The administrative
judge rejected the appellant’s argument that the agency effectively allowed
password sharing, and thus her conduct was not “unacceptable.” ID at 4-5. He
also found that this was, in any event, more appropriately an argument regarding
the reasonableness of the penalty. ID at 5. Thus, the administrative judge found
that the agency proved its charge by preponderant evidence. ID at 4-5.
The administrative judge then found that the agency proved nexus, and that
the penalty of removal was reasonable. ID at 5-8. In so holding, the
administrative judge rejected the appellant’s argument that she was subjected to a
harsher penalty than similarly situated employees. ID at 10. Specifically, the
administrative judge was not convinced that the appellant was substantially
similar to any other employees she identified, who had shared their passwords on
a few “discrete” occasions, because the appellant shared her password on an
ongoing basis with multiple employees over a multiyear period. Id. Moreover,
the administrative judge did not credit the declaration of the Operations Programs
Analyst who purported to have analyzed data demonstrating widespread password
sharing. ID at 11. Similarly, the administrative judge found that, at most, there
were individual instances of password sharing by other employees, whereas the
appellant engaged in more serious misconduct. ID at 12-13.
The administrative judge further found that the appellant failed to make a
showing that her sex was a motivating factor in the agency’s decision to remove
her. ID at 14-15. Finally, the administrative judge rejected the appellant’s claim
that the agency violated her due process rights. ID at 15-17.3
The appellant has filed a petition for review raising many of the arguments
she raised below. Petition for Review (PFR) File, Tab 1. The agency has
responded to her petition for review, and the appellant has replied to its response.
PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
Generally, in an adverse action appeal, an agency must prove its charge by
a preponderance of the evidence, establish a nexus between the action and the
efficiency of the service, and establish that the penalty it imposed is within the
tolerable bounds of reasonableness. Hall v. Department of Defense , 117 M.S.P.R.
687, ¶ 6 (2012). The administrative judge found that the agency proved its
charge by preponderant evidence and established a nexus. ID at 4-6. The parties
do not challenge these findings on review, and we discern no reason to disturb
them. See Canada v. Department of Homeland Security , 113 M.S.P.R. 509, ¶ 9
(2010) (finding that a charge such as improper conduct has no specific elements,
and is established by proving that the employee committed the acts alleged in
narrative form).
The administrative judge correctly found that the appellant failed to establish her
affirmative defense of sex discrimination.
The appellant on review reargues that she was treated worse than male
counterparts who had engaged in the same misconduct as her. PFR File, Tab 1
at 8-10. The administrative judge found that the appellant failed to show that
discrimination was a motivating factor in the contested personnel action. ID
at 14-15. We agree with the administrative judge.
In analyzing the appellant’s claim of sex discrimination, the administrative
judge applied the standard set out in Savage v. Department of the Army ,
122 M.S.P.R. 612 ¶¶ 36, 37 (2015). ID at 14-15. Following the issuance of the
initial decision in this case, the Board issued Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶¶ 20-25, 30, which overruled parts of Savage and4
clarified the proper analytical framework to be applied to affirmative defenses of
Title VII discrimination and retaliation. Specifically, the Board explained in
Pridgen that for status-based discrimination claims, in order to obtain full relief,
the appellant must show that discrimination or retaliation was a but-for cause of
the personnel action. Id., ¶¶ 21-22. The Board also clarified the expansive scope
of potentially relevant evidence. Id., ¶¶ 23-25. If an appellant proves, for
example, that discrimination was a motivating factor in the action and the agency
does not prove by preponderant evidence that it would have taken the same action
in the absence of discrimination, the appellant has established but-for causation.
Wilson v. Small Business Administration , 2024 MSPB 3, ¶ 18.
The Board has held that the presence of comparators who are similarly
situated to the appellant, other than in the protected characteristic, and who
receive systematically better treatment than the appellant, may be circumstantial
evidence that discrimination was a motivating factor in or but-for cause of the
agency’s action. Id., ¶ 18; Pridgen, 2022 MSPB 31, ¶ 24. A comparator must be
similarly situated to the appellant in all relevant aspects of his employment
situation, including sharing the same supervisor, being subjected to the same
standards governing discipline, and engaging in conduct similar to the appellant’s
without differentiating or mitigating circumstances. Pridgen, 2022 MSPB 31,
¶ 27.
The appellant on review argues that “several male counterparts had done
and admitted to the same” misconduct that she engaged in. PFR File, Tab 1
at 8-10. She further challenges the administrative judge’s finding that the
individuals identified were not similarly situated because they had not similarly
engaged in multiyear, multi-person password sharing as the appellant had, but
rather, had engaged in “discrete acts of password sharing.” Id.; ID at 15.
However, the appellant has failed to identify specific individuals who were found
to have similarly violated agency rules against password sharing without
differentiating or mitigating circumstances. In any event, as set forth in the5
agency’s decision letter, other employees who engaged in similar misconduct,
including the subordinate with whom the appellant shared her log-on information,
were removed. IAF, Tab 11 at 63, Tab 12 at 40, Tab 27 at 34. Furthermore, both
the proposing and deciding officials declared that they were unaware of any
employees sharing their passwords in a similar manner during a similar timeframe
as the appellant. IAF, Tab 27 at 26-28, 33 -34. In fact, the individuals identified
by the appellant all denied sharing their log-on information.2 Id. at 26-27. As
such, the appellant has failed to identify any individuals similarly situated to her
who were treated disparately. Pridgen, 2022 MSPB 31, ¶ 27.
The appellant has not made any other arguments from which we can infer
sex discrimination. Accordingly, we agree with the administrative judge that the
appellant has failed to meet her burden of showing, by preponderant evidence,
that her sex was a motivating factor in or a but-for cause of the contested
personnel action.
The administrative judge correctly held that the appellant failed to demonstrate a
due process violation.
The appellant argues that the agency denied her due process by failing to
give her notice that her conduct could lead to discipline prior to her notice of
proposed removal. PFR File, Tab 1 at 4-7. The administrative judge rejected this
argument, finding that it amounted to “pre-notice notice” not required for
minimum due process. ID at 16-17. We agree.
When, as here, a public employee has a property interest in her continued
employment, the government cannot deprive her of that interest without due
process. Wilson v. Department of Homeland Security , 120 M.S.P.R. 686, ¶ 7
(2014). An agency’s failure to provide a nonprobationary Federal employee with
an opportunity to present a response, either in person or in writing, to an
2 As for the specific individual identified in the appellant’s supporting declaration from
another Postmaster, the agency has opened an investigation into his alleged misconduct
and an adverse action is being reviewed for issuance. IAF, Tab 27 at 28, Tab 28
at 27-28. 6
appealable agency action that deprives her of her property right in her
employment constitutes an abridgement of her constitutional right to minimum
due process of law, i.e., prior notice and an opportunity to respond. Geier v.
Department of the Treasury , 90 M.S.P.R. 186, ¶ 5 (2001).
The appellant attempts to extend the due process prior notice requirement
to a notice that the agency would enforce its rules, and that her misconduct could
result in discipline. PFR File, Tab 1 at 5. However, the appellant has provided
no authority in support of her expanded notice requirement. The agency’s notice
of proposed removal informed the appellant of the charge and provided notice of
the agency’s evidence. IAF, Tab 11 at 74-77. Moreover, she was provided an
opportunity to respond and present evidence, in writing or in person, to the
deciding official. Id. at 78. Under the circumstances, such procedures were all
that were required in terms of minimum due process. Henton v. U.S. Postal
Service, 102 M.S.P.R. 572, ¶ 13 (2006).
To the extent the appellant alleges that other employees received such
“pre-notice notice” through her discipline, which served to alert them that the
conduct would no longer be tolerated, we are unpersuaded. Even if these other
employees generally became more aware of the agency’s password-sharing
policies and the ramifications of such misconduct based on the appellant’s
discipline, this does not negate her receipt of constitutional minimum due
process.
The administrative judge correctly held that the penalty was within the tolerable
bounds of reasonableness.
The appellant on review argues that the deciding official failed to properly
weigh the mitigating factors in assessing the reasonableness of the penalty. PFR
File, Tab 1 at 7-8. The administrative judge held that the agency properly
considered the relevant factors, and that the penalty of removal was reasonable.
ID at 6-9. We agree.7
When 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. Stuhlmacher v. U.S. Postal Service , 89 M.S.P.R. 272, ¶ 20
(2001). In doing so, the Board must give due weight to the agency’s primary
discretion in maintaining employee discipline and efficiency, recognizing that the
Board’s function is not to displace management’s responsibility but to ensure that
managerial judgment has been properly exercised. Id. Thus, the Board will
modify a penalty only when the Board finds that the agency failed to weigh the
relevant factors or that it clearly exceeded the bounds of reasonableness in
determining the penalty. Id.
The appellant on review argues that the agency “failed to meet” the
Douglas factors and asserts that the factors are “not mere suggestions but are
requirements.” PFR File, Tab 1 at 7. The appellant misconstrues this analysis.
The Douglas factors are a non-exhaustive list of relevant factors for consideration
in determining the appropriateness of a penalty. Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305 (1981). Not all of the factors will be
pertinent in every case, and selection of an appropriate penalty must involve a
responsible balancing of the relevant factors in the individual case. Id. at 306.
Indeed, an agency need not demonstrate that it considered all mitigating factors in
determining the penalty; similarly, the administrative judge need not contemplate
mitigating factors not identified by the appellant as significant. Yeschick v.
Department of Transportation , 801 F.2d 383, 385 (Fed. Cir. 1986).
The appellant identifies Douglas factor number nine, the clarity with which
the employee was on notice of any rules that were violated in committing the
offense or had been warned about the conduct in question, in arguing that there
was no notice that her conduct violated any rules. PFR File, Tab 1 at 7.
However, her argument is belied by her admission, in the same paragraph, that
there “were training videos that explained the agencies [sic] position on the8
protection of passwords.” Id. Indeed, she has not contested that she completed
training on password protection, which prohibits password sharing. IAF, Tab 11
at 62, Tab 27 at 37-44, Tab 28 at 23.
She also argues that she was allowed to share passwords, and thus appears
to allege that the agency condoned such conduct. PFR File, Tab 1 at 7. In
support of her argument that the agency condoned the type of misconduct she
committed, the appellant offered a declaration from an Operations Programs
Analyst with the agency, who asserted that he “pulled down a bunch of data”
which showed that “a lot of people [share passwords.]” IAF, Tab 28 at 31-32.
The administrative judge considered this evidence but found it unconvincing. ID
at 11-13. Specifically, the administrative judge noted that the Operations
Programs Analyst did not produce the data he purported to analyze, explain how
he collected or otherwise conducted his analysis, explain how he determined that
passwords were being shared, explain his own expertise in data analysis, or
identify a single individual who engaged in conduct similar to the appellant’s
password sharing over a multiyear period with numerous persons. ID at 11-12.
On review, the appellant argues that the administrative judge improperly
dismissed this evidence. PFR File, Tab 1 at 8. We disagree.
There is no evidence corroborating the Operations Programs Analyst’s
declaration that the data he analyzed demonstrated widespread password sharing.
Without supporting data or an explanation of how he reached his conclusions, or
even an explanation of his expertise in data analysis, we find that his declaration
provides little probative value. See Adamsen v. Department of Agriculture ,
116 M.S.P.R. 331, ¶ 17 (2011) (finding an individual’s statement which identified
no firsthand knowledge of the relevant events and no factual basis to support its
claim was unreliable hearsay); Borninkhof v. Department of Justice , 5 M.S.P.R.
77, 87 (1981) (considering whether corroboration for the statements can
otherwise be found in the record).9
The appellant additionally provided other sworn statements asserting that
“[t]he sharing of passwords is an ongoing practice” and “[i]t is the ‘open secret’
of the post office” that managers share passwords with subordinates.3 IAF,
Tab 28 at 28, 39. Although these statements corroborate the notion that password
sharing generally occurred at the agency, they nonetheless are contradicted by the
proposing and deciding officials’ declarations. Specifically, the proposing and
deciding officials declared that every individual identified by the appellant as
having shared passwords “forcefully denied the allegations.” IAF, Tab 27 at 27,
33-34.
In any event, although an agency’s condonation of misconduct may be a
mitigating factor, the Board has not always found that condonation warrants
mitigation. Herrera-Martinez v. Social Security Administration , 84 M.S.P.R.
426, ¶ 16 (1999). The Board has held that, when all the charges are sustained and
the misconduct is serious, condonation does not warrant mitigation. See id.
(finding that any condonation of the appellant’s misconduct, which compromised
the integrity of the Social Security Administration system, did not warrant
mitigating the removal penalty). Here, the agency’s sole charge was sustained.
Moreover, the deciding official considered the nature and seriousness of the
offense and found it to be serious. IAF, Tab 11 at 61-63. The administrative
judge found that the agency adequately considered the seriousness of the
misconduct. ID at 12-13. Thus, even assuming that the agency somehow
previously condoned the conduct at issue, such condonation does not warrant
mitigation under the circumstances of this case.
3 The appellant additionally alleges that, after the agency initiated the action against
her, the proposing official emailed all managers acknowledging that he knew managers
were sharing passwords and that the practice must stop. PFR File, Tab 1 at 6. The
appellant asserts that the email “is missing” and was not produced in the agency’s
response to her discovery requests. Id. However, the appellant did not file a motion to
compel discovery, and thus she is precluded from raising this issue for the first time on
petition for review. Szejner v. Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5
(2005), aff’d, 167 F. App’x 217 (Fed. Cir. 2006); 5 C.F.R. § 1201.73(c).10
To the extent the appellant alleges that her penalty should be mitigated
because it was more severe than the penalties assessed on employees who
committed the same or a similar offense, we are similarly unpersuaded. The
administrative judge considered and rejected this argument, finding that the
appellant had failed to demonstrate a substantial similarity between her
circumstances and the conduct of any other employee. ID at 10. We agree with
the administrative judge that the appellant has failed to identify other employees
who engaged in similar misconduct.
It is well settled that among the factors an agency should consider in
setting the penalty for misconduct is the “consistency of the penalty with those
imposed upon other employees for the same or similar offenses.” Douglas,
5 M.S.P.R. at 305. Although the universe of potential comparators will vary from
case to case, it should be limited to those employees whose misconduct or other
circumstances closely resemble those of the appellant. Singh v. U.S. Postal
Service, 2022 MSPB 15, ¶ 13. For consistency of the penalty analysis, the
charges and the circumstances surrounding the charged behavior must be
substantially similar. Hamilton v. Department of Homeland Security ,
117 M.S.P.R. 384, ¶ 14 (2012). Establishing that the charges and circumstances
surrounding the charged behavior are substantially similar may include proof that
the proffered comparison employee was located in the same work unit, worked
under the same supervisor, was subjected to the same standards governing
discipline, and faced discipline close in time to the appellant. Id. Other relevant
considerations may include whether the difference in treatment was knowing and
intentional, whether an agency began levying a more severe penalty for a certain
offense without giving notice of a change in policy, and whether an imposed
penalty is appropriate for the sustained charges. Id.
The proposing and deciding officials declared that they were unaware of
any other employees who shared their password in a similar manner to that of the
appellant. IAF, Tab 27 at 28, 33-34. Of the nine individuals identified by the11
appellant as having shared passwords, she only presented a declaration from one,
who did not admit to sharing his password. Id. at 26; IAF, Tab 28 at 38-40.
Although the appellant’s proffered declarations may support that password
sharing occurred, they do not establish that any specific employees engaged in
misconduct similar to that of the appellant. As such, the appellant’s evidence
fails to sufficiently identify comparator employees whose surrounding charges
and circumstances are substantially similar. See Hamilton, 117 M.S.P.R. 384,
¶ 14 (finding that the charges and circumstances surrounding the charged
behavior must be substantially similar to establish that the penalty was not
consistent with penalties imposed on other employees).
Furthermore, the alleged comparators identified by the appellant appear to
be from different work units and under different supervisory chains. For an
employee from another work unit or supervisory chain to be a proper comparator
for consistency of the penalty purposes, there must be a close connection between
the misconduct or some other factor. Singh, 2022 MSPB 15, ¶ 13. As set forth in
the proposing official’s declaration, the other alleged comparators held a range of
positions including Supervisor, Postmaster, Custodian, and Manager. IAF,
Tab 27 at 26. Additionally, they appear to have been stationed at different office
locations. Id. The appellant has not challenged or contradicted this assertion and
we see no reason to question it. Although not outcome determinative, the
appellant has failed to identify a close connection between the misconduct or any
other factor establishing that these employees from other work units and
supervisory chains are proper comparators for consistency of the penalty
purposes. Singh, 2022 MSPB 15, ¶ 13.
In addition, the record does not show that the alleged inconsistency in
penalties was knowing and intentional. See id., ¶ 14 (finding the relevant
considerations in a consistency of the penalty analysis include whether the
difference in treatment was knowing and intentional); Hamilton, 117 M.S.P.R.
384, ¶ 14 (same). Both the proposing and deciding officials submitted12
declarations asserting that they were unaware of any other employees who
engaged in similar misconduct as the appellant during the general timeframe.
IAF, Tab 27 at 28, 33-34. The Board generally evaluates the probative value of
hearsay by considering various factors that include whether corroboration for the
statements can otherwise be found in the record and the absence of contradictory
evidence. Borninkhof, 5 M.S.P.R. at 87. The similar declarations here
corroborate each other. Moreover, the appellant has not contradicted the
statements or provided evidence that these individuals were aware of such
widespread password sharing. Thus, to the extent these alleged comparator
employees were treated differently, the record does not support a finding that the
difference in treatment was knowing and intentional. On the contrary, the only
individual identified by the agency as engaging in similar misconduct was
removed.4 IAF, Tab 12 at 40, Tab 27 at 34. The appellant has similarly not
contradicted this evidence and the deciding official’s hearsay statement is
corroborated by the record. IAF, Tab 12 at 40, Tab 27 at 34.
As discussed above, the appellant has failed to identify specific individuals
who were found to have similarly violated agency rules against password sharing.
The appellant has thus failed to identify any proper comparators for consistency
of the penalty purposes. She similarly has failed to establish that the agency
knowingly and intentionally treated her differently, or began levying a more
severe penalty without giving notice of a change in policy. Accordingly, we find
that the appellant was on notice that her conduct was in violation of agency rules,
and any alleged condonation does not warrant mitigation of the penalty.
Herrera-Martinez, 84 M.S.P.R. 426, ¶ 16.
Finally, the consistency of the penalty with those imposed upon other
employees for the same or similar offenses is simply one among a nonexhaustive
4 According to the record evidence and the declaration by the deciding official, one of
the individuals to whom the appellant gave her log-on credentials, who then used the
password to access the system under the appellant’s name, was removed. IAF, Tab 12
at 40, Tab 27 at 34.13
list of factors that are relevant for consideration in determining the
appropriateness of a penalty. Douglas, 5 M.S.P.R. at 305-06. The Board has
frequently stated that the nature and seriousness of the offense, and its relation to
the employee’s duties, position, and responsibility, is the most important factor in
assessing the reasonableness of a penalty. E.g., Batara v. Department of the
Navy, 123 M.S.P.R. 278, ¶ 8 (2016); Spencer v. U.S. Postal Service , 112 M.S.P.R.
132, ¶ 7 (2009). Indeed, the deciding official here considered the nature and
seriousness of the offense and found it to be serious. IAF, Tab 11 at 61-63.
Accordingly, we agree with the administrative judge that the agency properly
considered the relevant factors, and that the penalty of removal was reasonable.
ID at 6-9. See Stuhlmacher , 89 M.S.P.R. 272, ¶ 20 (finding the Board will
modify a penalty only when it finds that the agency failed to weigh the relevant
Douglas factors or the penalty clearly exceeded the bounds of reasonableness).
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.14
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 15
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 16
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 17
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.18 | Smith_ValerieCH-0752-20-0182-I-1_Final_Order.pdf | 2024-12-19 | VALERIE SMITH v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-20-0182-I-1, December 19, 2024 | CH-0752-20-0182-I-1 | NP |
305 | https://www.mspb.gov/decisions/nonprecedential/Weathers_Linda_F_SF-0752-20-0364-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINDA F. WEATHERS,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
SF-0752-20-0364-I-1
DATE: December 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Linda F. Weathers , Richmond, California, pro se.
Stephanye Snowden and Joshua Rose , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary retirement appeal for lack of jurisdiction. On petition
for review, the appellant reiterates her argument that she was forced to retire
because of a hostile work environment.2 She also claims that the former agency
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
representative treated her unprofessionally.3 Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that the appellant did not establish jurisdiction over her appeal
by preponderant evidence, we AFFIRM the initial decision .
Contrary to what the administrative judge observed, the appellant did not
request a hearing during the proceedings below. Initial Appeal File (IAF),
2 The record reflects that the appellant sought a retirement annuity estimate in
March 2018, and completed a retirement application in August 2018, in which she
indicated that she would retire in January 2019. Initial Appeal File, Tab 4 at 8-10, Tab
17 at 5. Thus, this is not a situation in which the appellant did not have time to reflect
on her decision. Cf. Soler-Minardo v. Department of Defense , 92 M.S.P.R. 100, ¶ 7
(2002) (observing that a retirement decision may be considered involuntary when the
appellant did not have sufficient time to reflect about her alternative course of action).
Further, the appellant concedes on review that at the time she retired, at least two of the
managers she claimed were responsible for the hostile work environment resulting in
her retirement—if not all three—were no longer in her supervisory chain. Petition for
Review (PFR) File, Tab 1 at 4-5, 12. The appellant could have withdrawn her decision
to retire any time before its effective date. Finally, we have fully considered the events
that the appellant alleges occurred as far back as 2017 as part of the totality of the
circumstances but find that the appellant did not prove by preponderant evidence that
her retirement was involuntary.
3 The appellant provides no details concerning this allegation in her petition for review,
PFR File, Tab 1 at 6, and the record does not reflect that she raised her concerns with
the administrative judge below. 2
Tab 19, Initial Decision at 1. When an appellant has not requested a hearing, the
threshold question is not whether she has raised a nonfrivolous allegation of
jurisdiction, but whether she has established by preponderant evidence that the
Board has jurisdiction over her appeal. Vitale v. Department of Veterans Affairs ,
107 M.S.P.R. 501, ¶ 18 (2007). The administrative judge informed the appellant
of the appropriate burden of proof and the deadline by which she was to file
evidence and argument satisfying it. IAF, Tab 2 at 4, Tab 9 at 2. Because we
agree with the administrative judge that the appellant did not nonfrivolously
allege in that evidence and argument that her retirement was coerced, we find that
the appellant necessarily did not establish that her retirement was coerced under
the higher preponderant evidence standard. The administrative judge’s
application of the incorrect nonfrivolous allegation standard in the initial decision
was thus harmless . See Panter v. Department of the Air Force , 22 M.S.P.R. 281,
282 (1984) (stating that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).4
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
4 Because the appellant raised a claim of discrimination in this constructive adverse
action appeal, and the Board has now issued a Final Order dismissing the appeal for
lack of jurisdiction, the agency is required, under Equal Employment Opportunity
Commission (EEOC) regulations, to reissue a notice under 29 C.F.R. § 1614.108(f)
giving the appellant the right to elect between a hearing before an EEOC administrative
judge and an immediate final decision. See 29 C.F.R. § 1614.302(b).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Weathers_Linda_F_SF-0752-20-0364-I-1_Final_Order.pdf | 2024-12-19 | LINDA F. WEATHERS v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-0752-20-0364-I-1, December 19, 2024 | SF-0752-20-0364-I-1 | NP |
306 | https://www.mspb.gov/decisions/nonprecedential/Grafenstein_Gene_G_AT-0752-19-0477-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GENE G. GRAFENSTEIN,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
AT-0752-19-0477-I-1
DATE: December 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gene G. Grafenstein , Fort Lauderdale, Florida, pro se.
Kaymi Y. Ross , Springfield, Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his 60-day suspension for misconduct. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
ANALYSIS
The appellant is a GS-13 Criminal Investigator for the Miami Field
Division of the agency’s Drug Enforcement Administration. Initial Appeal File
(IAF), Tab 5 at 58. Effective May 6, 2019, the agency suspended the appellant
for 60 days based on four charges: (1) lack of candor, (2) unauthorized use of an
official Government vehicle (OGV), (3) poor judgment, and (4) failure to follow
instructions, all stemming from events that occurred on Sunday, October 29,
2017. Id. at 36-37, 42-56.
On the morning of Monday, October 30, 2017, the appellant notified his
supervisor that, the day before, he was driving in his OGV with unauthorized
passengers when he got in an accident with another vehicle and was physically
assaulted by an occupant of that vehicle. IAF, Tab 6 at 181-82. The appellant’s
supervisor had him prepare a statement for the Miami Field Division Special
Agent in Charge, who in turn referred the matter to the Drug Enforcement
Administration’s Office of Professional Responsibility. Id. at 17-23. The
investigation was taken over by the agency’s Office of Inspector General (OIG),
which reviewed the evidence, conducted several interviews, and on July 10, 2018,
issued a report of investigation. Id. at 5-15. The OIG concluded that the2
appellant had committed several acts of misconduct, both in relation to the
underlying incident and in subsequently reporting the incident. Id. at 8-13.
In his response to the notice of proposed suspension, the appellant
essentially conceded to the charges of unauthorized use of an OGV, poor
judgment, and failure to follow instructions.2 IAF, Tab 5 at 88-89. However, he
contested the lack of candor charge and sought a reduction in the penalty. Id.
at 90-105. The deciding official, however, sustained all the charges and upheld
the proposed 60-day suspension. Id. at 36-37.
On appeal to the Board, the appellant again contested the lack of candor
charge and the penalty imposed. IAF, Tab 1 at 6. He also raised several
affirmative defenses, but he withdrew his affirmative defenses at the beginning of
the hearing. IAF, Tab 1 at 6, Tab 30 at 4-5, Tabs 49-50, 65; Hearing Recording,
(HR) Track 2 at 1:30.
After the hearing, the administrative judge issued an initial decision
sustaining the 60-day suspension. IAF, Tab 67, Initial Decision (ID). She found
that the agency proved its lack of candor charge and that the remaining charges
were undisputed. ID at 2-7. She further found that the agency selected a penalty
within the tolerable limits of reasonableness. ID at 8-10.
The appellant has filed a petition for review, raising several procedural
issues and contesting the lack of candor charge and the penalty. Petition for
Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
2 The unauthorized use of an OGV charge pertains to the appellant’s actions prior to the
accident, when he drove his OGV while off duty for other than official purposes to
multiple locations, transported multiple unauthorized passengers, and consumed alcohol
prior to driving. IAF, Tab 5 at 131-133. The poor judgment charge pertains to the
appellant’s actions after the accident, when he continued to consume alcohol and drive
multiple unauthorized passengers to multiple locations. Id. at 133-34. The failure to
follow instructions charge pertains to the appellant’s failure to report the OGV accident
immediately, as required by the Drug Enforcement Administration Agents Manual. Id.
at 134.3
ANALYSIS
Hearing Recording
Under 5 U.S.C. § 7701(a)(1), an appellant who was subjected to an action
that is appealable to the Board has “the right . . . to a hearing for which a
transcript will be kept. . . .” Koehler v. Department of the Air Force , 99 M.S.P.R.
82, ¶ 6 (2005). In discussing witness testimony, the Board relies on audio
recordings, which are the official, verbatim record of the hearing. Marotta v.
Department of Health & Human Services , 34 M.S.P.R. 252, 257, aff’d, 837 F.2d
1096 (Fed. Cir. 1987) (Table). The Board has found that, when the record of the
hearing contains material omissions of evidence necessary to adjudicate the
appeal, the evidence must be taken again. Walker v. Office of Personnel
Management, 52 M.S.P.R. 101, 104 (1991).
In this case, the appellant argues that a complete and accurate recording of
the hearing is unavailable because the court reporter failed to appear at the
hearing and the administrative judge recorded the testimony herself on her
smartphone. PFR File, Tab 1 at 8. He alleges that, partway through the hearing,
the court reporter contacted the administrative judge and attempted to transcribe
the proceedings remotely, but that this effort “was fraught with technical
difficulties, faltering transmission, inability of court reporter to properly hear and
transcribe witness testimony, continual interference with counsel examination,”
and so forth. Id. The appellant argues that the administrative judge’s decision to
continue without the court reporter present prejudiced his substantive rights
because it prevents the Board from fully and accurately reviewing the record. Id.
As an initial matter, it does not appear to us that the appellant objected to
the method of recording the hearing below. A party is obliged to preserve for the
Board’s review his objection to the administrative judge’s conduct of the hearing;
he cannot wait until after the adjudication is complete to object for the first time
to the administrative judge’s hearing-related rulings. Jones v. Department of
Health & Human Services , 52 M.S.P.R. 669, 671 (1992). Furthermore, even if4
the appellant had objected, we would find that the administrative judge’s method
of preparing the hearing recording did not constitute an abuse of her broad
discretion to regulate the course of the hearing and take all actions necessary to
issue a timely decision. See 5 C.F.R. § 1201.41(a), (b)(6). Although hearing
recordings are generally prepared by a court reporter, in appropriate cases, the
administrative judge herself may prepare the recording. 5 C.F.R. § 1201.53(a).
Nor would we find that the appellant’s substantive rights were prejudiced. See
Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981) (finding that an
administrative judge’s procedural error is of no legal consequence unless it is
shown to have adversely affected a party’s substantive rights). Not only does our
review of the hearing recording reveal it to be clear and audible, with no obvious
missing portions, the appellant has not explained exactly what testimony he
believes is not adequately represented in the recording or how any such testimony
might be material to the outcome of the appeal. See Rodgers v. Department of the
Navy, 122 M.S.P.R. 559, ¶ 19 (2015) (finding that an incomplete hearing
recording warrants remand only if the missing testimony is material); Kane v.
Defense Personnel Support Center , 21 M.S.P.R. 358, 360 (1984) (same).
Lack of Candor
Lack of candor requires proof that (1) the employee gave incorrect or
incomplete information, and (2) he did so knowingly. Fargnoli v. Department of
Commerce, 123 M.S.P.R. 330, ¶ 17 (2016). Although lack of candor is
distinguishable from falsification because it does not require a showing of an
“intent to deceive,” it nonetheless requires that the employee conveyed
information knowing that it was incorrect or incomplete. Parkinson v.
Department of Justice , 815 F.3d 757, 765-66 (Fed. Cir. 2016), aff’d in pertinent
part and rev’d in part on other grounds , 874 F.3d 712 (Fed. Cir. 2017) (en banc).
Once an agency has proven an underlying misconduct charge, a concealment or
lack of candor charge also must be sustained based on the appellant’s “failure to
respond truthfully or completely when questioned about matters relating to the5
proven misconduct.” Ludlum v. Department of Justice , 278 F.3d 1280, 1284
(Fed. Cir. 2002) (quoting Gootee v. Veterans Administration , 36 M.S.P.R. 526,
529 (1988)).
In this case, the agency alleged that “[o]n October 30, 2017, you were less
than candid with your supervisors when you described events surrounding an
OGV accident on October 29, 2017.” IAF, Tab 5 at 43. The agency elaborated
on this allegation in six pages of narrative, describing how the appellant’s initial
email report of the accident omitted key facts, and how the appellant added
additional details each of the several times that his supervisors and the OIG
Special Agents pressed him for more information. Id. at 43-49.
The administrative judge sustained the charge, finding that the appellant
failed to disclose material facts in each of his three email statements. ID at 6.
She acknowledged the appellant’s contentions that he misunderstood the scope of
information that his supervisors wanted in the statements and that his omission of
some facts was due to his failure to recall them until later. ID at 6. However,
after taking in-person testimony and observing the appellant’s demeanor, the
administrative judge declined to credit the appellant’s version of events. ID
at 6-7. She found that the appellant was essentially asking her to believe that he
thought he was only required to report the details of his misconduct if and when
he was specifically asked about it, and she declined to credit this explanation for
his failure to be fully forthcoming. ID at 7. She concluded that the appellant
knowingly and intentionally omitted material facts about his drinking, the
unauthorized passengers in his OGV, and how many unauthorized places he
traveled to on the day of the accident.
On petition for review, the appellant argues that the administrative judge
failed to consider that the deciding official disbelieved his account of how he
sustained his injury and believed that he was still not telling the whole truth.
PFR File, Tab 1 at 8; HR, Track 2 at 50:50 (testimony of the deciding official).6
However, the deciding official’s skepticism about the appellant’s account does
not demonstrate any error in his decision-making process.
The appellant further argues that the administrative judge failed to consider
the “secondary investigation” that agency management conducted parallel to the
OIG investigation. PFR File, Tab 1 at 8-9, 12. The appellant is apparently
referring to the October 30, 2019 meeting during which his immediate supervisor,
the Special Agent in Charge, the Associate Special Agent in Charge, and the
Assistant Special Agent in Charge interrogated him about the events of the
previous day in relation to preparing a comprehensive email statement. Id. He
asserts that the interrogation was not recorded or memorialized in writing, the
OIG failed to interview the Special Agent in Charge or Assistant Special Agent in
Charge, and the administrative judge improperly disallowed these two individuals
as witnesses. Id. The appellant further argues that this interrogation was
unauthorized and resulted in improper influence over the OIG investigation.3 Id.
As an initial matter, we disagree with the appellant’s characterization of
this October 30, 2019 meeting as an unauthorized secondary investigation. The
appellant has identified no law, rule, or regulation that would prevent his
supervisors from questioning him about suspected misconduct. In fact, we find
that they would have been remiss in failing to do so. Furthermore, this
interrogation was not some sort of shadow investigation parallel to the OIG
investigation; rather, it was an initial inquiry by management that precipitated the
eventual OIG investigation. Moreover, at a fundamental level, the appellant has
not identified any dispute of material fact about what transpired during the
3 The appellant asserts that the manner in which the OIG conducted the investigation
constituted a violation of his due process rights. PFR File, Tab 1 at 9-10. However, not
only did the appellant explicitly waive his affirmative defenses at the start of the
hearing, HR, Track 2 at 1:30, we find that the manner of OIG’s investigation did not
implicate his right to due process, i.e., prior notice of and an opportunity to respond to
the reasons for the adverse action, see Cleveland Board of Education v. Loudermill ,
470 U.S. 532, 546 (1985 ); Alsedek v. Department of the Army , 58 M.S.P.R. 229, 240-41
(1993).7
October 30, 2019 meeting. The appellant states that he was denied discovery and
witness testimony concerning this meeting, id. at 8-10, 12, but he has not
explained what he believes this evidence would have shown, see Sherwood v.
Department of Veterans Affairs , 88 M.S.P.R. 208, ¶ 11 (2001); Brewer v.
Department of the Interior , 76 M.S.P.R. 363, 368 (1997).
In any event, regardless of what transpired at the October 30, 2019
meeting, for the reasons explained in the initial decision, we agree with the
administrative judge that the lack of candor charge is fully supported by the
undisputed record. ID at 6-7. We can accept that the appellant’s omission of
some details, such as his whereabouts earlier in the day, might have been totally
innocent and due to him not thinking that they were relevant to an accident
report. However, the appellant knew or should have known that many of the
details that he omitted in his three email statements were material to the matter at
issue. For instance, we cannot accept that the appellant was unaware that the
agency officials for whom he was writing the statement would want to know
about his destination and reason for being out at the time of the accident, the
presence of passengers in his OGV, his consumption of alcohol, and the fact that
one of those passengers provoked the people in the other car involved in the
accident. None of these omitted facts reflect favorably on the appellant’s
conduct, and considering the totality of the evidence, we disagree with the
appellant’s assertion that their omission did not contain an element of deception.
PFR File, Tab 1 at 9-10.
Penalty
Because all the agency’s charges are sustained, the Board’s authority to
review the penalty is limited. Cantu v. Department of the Treasury , 88 M.S.P.R.
253, ¶ 4 (2001). Specifically, the Board reviews an agency-imposed penalty only
to determine if the agency considered all of the relevant factors and exercised
management discretion within tolerable limits of reasonableness. Id. In
determining whether the selected penalty is reasonable, the Board gives due8
deference to the agency’s discretion in exercising its managerial function of
maintaining employee discipline and efficiency, recognizing that the Board’s
function is not to displace management’s responsibility but to assure that
management judgment has been properly exercised. Id. Thus, the Board will
disturb an agency’s chosen penalty only if it finds that the agency failed to weigh
relevant factors or that the agency’s judgment clearly exceeded the limits of
reasonableness. Id.
In this case, the appellant argues that the deciding official failed to
conscientiously consider the penalty factors set forth in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981). PFR File, Tab 1 at 9.
Specifically, he argues that, at the hearing, the deciding official was only able to
recall three of the Douglas factors and how he applied them to the appellant’s
case. Id. However, our review of the hearing testimony shows that the
administrative judge was insistent that the deciding official testify about these
matters purely from memory, without any written aid to help him recall the
factors or how he applied them in the appellant’s case. HR, Track 2 at 39:40
(testimony of the deciding official). The fact that the deciding official was
unable to recall the majority of the enumerated Douglas factors at the hearing
does not show that he failed to apply them appropriately. In fact, the record
contains an eight-page Douglas factors worksheet, in which the deciding official
contentiously considered each of the enumerated factors as they pertained to the
proposed suspension. IAF, Tab 5 at 69-77.
The appellant also disputes the deciding official’s analysis of putative
comparison employees. PFR File, Tab 1 at 9. The deciding official determined
that there were no relevant comparators who had been disciplined for the same
four charges as the appellant. IAF, Tab 5 at 71-72; HR, Track 2 at 45:30, Track 3
at 1:30. The appellant argues that, “[n]ot only was this a flawed analysis, this is
irrelevant because the only charge under dispute is the Lack of Candor and a case
does not have to be specific to all charges to be used as a comparative.” PFR9
File, Tab 1 at 9. We agree with the appellant in principle that a deciding official
may be guided by previous disciplinary actions that are not exactly like the
proposed action immediately before him; there is no per se rule that two multiple
charge disciplinary actions must necessarily have all identical charges in order to
be comparable. Even so, the appellant has not identified any previous case, with
or without identical charges, that is reasonably comparable to this one. The
appellant argued below that two Drug Enforcement Administration agents who
engaged in a physical altercation at a bar were treated more leniently even though
their misconduct was more serious than his. IAF, Tab 63. However, the Board
has found that it will “not attempt to weigh the relative seriousness of various
offenses in order to determine whether two employees who committed different
acts of misconduct were treated disparately.” Singh v. U.S. Postal Service ,
2022 MSPB 15, ¶ 17. We find that the appellant’s proffered comparators did not
engage in conduct that was objectively similar to the conduct at issue in this
appeal, and we therefore find that they are not proper comparators. See id.
Because the remainder of the appellant’s arguments in this regard are premised on
the lack of candor charge not being sustained, we find that they provide no basis
to disturb the initial decision. PFR File, Tab 1 at 9.
For the reasons explained in the initial decision, we agree with the
administrative judge that the agency’s chosen penalty of a 60-day suspension fell
within the tolerable limits of reasonableness. ID at 8-10. The appellant used his
OGV as a party bus for approximately 12 hours, drinking an unknown quantity of
alcohol, making seven different stops, and transporting four different individuals
to various places, including one who was highly intoxicated and another who was
an unruly stranger. When his actions finally caught up with him and resulted in a
physical assault and motor vehicle accident, he not only failed to report the
incident as required but also continued his same pattern of behavior for another
3 hours until he finally decided that he was done for the night. Based on the
undisputed charges alone, the agency very reasonably could have sought removal10
of a law enforcement officer, even one with a sterling record like the appellant’s.
See O’Lague v. Department of Veterans Affairs , 123 M.S.P.R. 340, ¶ 20 (2016)
(finding that law enforcement officers may be held to a higher standard of
conduct than other Federal employees), aff’d per curiam , 698 F. App’x 1034
(Fed. Cir. 2017); Quander v. Department of Justice , 22 M.S.P.R. 419, 421-23
(1984) (sustaining the appellant’s removal and finding that his 16 years of
satisfactory service as a law enforcement officer did not overcome the poor
judgment exhibited by his petty theft and OGV-related misconduct), aff’d,
770 F.2d 180 (Fed. Cir. 1985). That the agency saw fit only to impose a 60-day
suspension for this series of reckless decisions was an act of leniency.
Compounded with the lack of candor charge, we find that the 60-day suspension
was well within the tolerable limits of reasonableness. See Prather v. Department
of Justice, 117 M.S.P.R. 137, ¶ 36 (2011) (finding that offenses that cast doubt on
an employee’s honesty and integrity are particularly serious for a law
enforcement officer).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
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.11
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 12
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 13
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 14
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15 | Grafenstein_Gene_G_AT-0752-19-0477-I-1_Final_Order.pdf | 2024-12-18 | GENE G. GRAFENSTEIN v. DEPARTMENT OF JUSTICE, MSPB Docket No. AT-0752-19-0477-I-1, December 18, 2024 | AT-0752-19-0477-I-1 | NP |
307 | https://www.mspb.gov/decisions/nonprecedential/Miller_ShanaeDA-0752-21-0010-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHANAE M. MILLER,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-0752-21-0010-I-1
DATE: December 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alan V. Edmunds , Esquire, Joseph D. Jordan , Esquire, and Lance Renfro ,
Esquire, Ponte Vedra Beach, Florida, for the appellant.
Jacquelyn M. Christilles and Olga Sinquefield , Joint Base San
Antonio-Randolph, Texas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal based on her loss of eligibility to occupy a noncritical
sensitive position. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
vacate the administrative judge’s analysis of the appellant’s allegations regarding
the agency’s failure to comply with its regulations and procedures in conducting a
security clearance investigation and find instead that such allegations are not
within the Board’s jurisdiction to review, we AFFIRM the initial decision.
The appellant asserted below that that the agency committed harmful error
by failing to discontinue its Top Secret security clearance investigation of her for
a position at Lackland Air Force Base after, having initially accepted the position,
she declined the position and accepted a position at Wright Patterson Air Force
Base. Initial Appeal File (IAF), Tab 5 at 4-5. According to the appellant, under
the agency’s regulations, the investigation for a higher-level clearance required
by the position at Lackland should have stopped when it was no longer necessary,
and, if it had stopped, her clearance would not have been revoked. Id. In
analyzing the appellant’s claim, the administrative judge considered the various
versions of the agency’s regulations identified by the parties and ultimately
concluded that the appellant failed to show harmful error. IAF, Tab 27, Initial
Decision at 8-9. 2
On review, the appellant argues that the administrative judge erred in his
interpretation of the agency’s regulations and policies.2 Petition for Review File,
Tab 1 at 7-8. The Board may review whether an agency’s failure to comply with
its own regulations and procedures in revoking a security clearance is harmful
error. Doe v. Department of Justice , 118 M.S.P.R. 434, ¶ 32 (2012). The scope
of the Board’s authority is limited to the agency’s procedures in revoking a
clearance, such as an explanation for the reasons for the unfavorable clearance
determination, an opportunity to respond, and a final written decision. See
Schnedar v. Department of the Air Force , 120 M.S.P.R. 516, ¶ 10 (2014). The
Board lacks the authority to review the propriety of the agency’s security
clearance investigation process. Jones v. Department of the Navy , 48 M.S.P.R.
680, 687 n.19, aff’d as modified on recons ., 51 M.S.P.R. 607 (1991), aff’d,
978 F.2d 1223 (Fed. Cir. 1992). Here, the appellant’s claims do not concern
improprieties in the process the agency used in revoking her clearance. Rather,
they center on irregularities in the security clearance investigation process. Thus,
the appellant’s claims are outside the Board’s jurisdiction. The administrative
judge thus should not have addressed those matters, and we vacate that portion of
the initial decision addressing the agency’s security clearance investigation
process.
2 With her petition for review, the appellant submits the following documents: (1) the
Department Of Defense Consolidated Adjudications Facility final decision, (2) the
notice of proposed removal, (3) the removal decision, (4) the agency’s narrative
response, (5) her prehearing submission, and (6) the initial decision. PFR File, Tab 1
at 12-64. These documents are already in the record and were considered by the
administrative judge and have been considered on review. We find that these
documents provide no basis to disturb the initial decision. 3
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. Contact information for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
the courts of appeals can be found at their respective websites, which can be
accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Miller_ShanaeDA-0752-21-0010-I-1_Final_Order.pdf | 2024-12-18 | SHANAE M. MILLER v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DA-0752-21-0010-I-1, December 18, 2024 | DA-0752-21-0010-I-1 | NP |
308 | https://www.mspb.gov/decisions/nonprecedential/Hancock_Michael_D_DC-0714-19-0865-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL D. HANCOCK,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-0714-19-0865-I-1
DATE: December 18, 2024
THIS ORDER IS NONPRECEDENTIAL1
Michael D. Hancock , Roanoke, Virginia, pro se.
Amanda E. Shaw , Roanoke, Virginia, for the agency.
Keta J. Barnes , Durham, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal under 38 U.S.C. § 714. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the Washington Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
The appellant was employed by the agency as a Laundry Worker at the
agency’s Veterans Health Administration Medical Center in Salem, Virginia.
Initial Appeal File (IAF), Tab 5 at 13. By letter dated August 22, 2019, the
agency proposed his removal pursuant to 38 U.S.C. § 714 based on one charge of
conduct unbecoming that was supported by four specifications. Id. at 33-35. In
specifications one and two, the agency alleged that, during a meeting on July 10,
2019, the appellant made disrespectful, inappropriate, and/or profane comments
directed at his supervisor and coworkers. Id. at 33. In specification three, the
agency alleged that on July 29, 2019, after receiving a letter charging him as
absent without leave, the appellant stated to his supervisor that “[b]ad things
happen to people when they try to get employees fired,” or words to that effect.
Id. In specification four, the agency alleged that, after making the statement
described in specification 3, the appellant placed his hand on his supervisor’s
shoulder and stated “[b]aby, you don’t need to call him,” or words to that effect,
when the appellant’s supervisor attempted to contact the Department Chief. Id.
Following an opportunity for the appellant to respond to the proposal notice both
orally and in writing, the deciding official found that the charge was supported by
substantial evidence and she sustained the removal, which became effective
September 27, 2019. Id. at 14-16.
The appellant filed a Board appeal challenging his removal and raising an
affirmative defense of race discrimination. IAF, Tab 1, Tab 14 at 1.2
After holding the appellant’s requested hearing, the administrative judge issued
an initial decision sustaining the appellant’s removal. IAF, Tab 18,
Initial Decision (ID). The administrative judge found that the agency proved all
four of the specifications in support of its conduct unbecoming charge.
ID at 3-11. He further found that the appellant failed to prove that his race was a
motivating factor in the agency’s removal decision. ID at 12-16. In particular,
the administrative judge found that the appellant failed to provide any evidence
from which an inference of discriminatory intent could be drawn or identify any
other employees who engaged in similar misconduct but were not disciplined. ID
at 14-15. The administrative judge also credited the testimony of the deciding
official that the appellant’s race was not a factor in her decision to remove him.2
ID at 15. Although the administrative judge did not consider the reasonableness
of the penalty, he concluded that “the agency [] presented substantial evidence to
support its action.” ID at 16. Accordingly, he affirmed the appellant’s removal.
The appellant has filed a petition for review, which the agency has
opposed. Petition for Review (PFR) File, Tabs 1, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the agency proved its charge of
conduct unbecoming.
In finding that the agency proved its conduct unbecoming charge, the
administrative judge credited the testimony of the appellant’s supervisor and
coworkers that the appellant engaged in the charged misconduct during a meeting
they all attended on June 10, 2019. ID at 3-8. The administrative judge also
2 Although the administrative judge ultimately concluded that the appellant failed to
prove that the agency’s removal action was “the result of” racial discrimination, in light
of the administrative judge’s analysis and citation to the standard set forth in Savage v.
Department of the Army , 122 M.S.P.R. 612, ¶¶ 41, 51 (2015 ), overruled in part by
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25, we construe
such a finding as tantamount to finding that the appellant failed to prove that his race
was a motivating factor in the agency’s decision to remove him, ID at 12-16.3
credited the testimony of the appellant’s supervisor regarding the appellant’s
inappropriate comments and actions directed toward her on July 29, 2019. ID
at 8-11. To the extent the appellant asserts on review that the testimony of the
agency’s witnesses was false, not forthcoming, and inconsistent, PFR File, Tab 1
at 3, we find that the appellant’s conclusory statement fails to provide a
sufficiently sound reason to overturn the administrative judge’s credibility
findings, which were based on his observation and assessment of the agency
officials’ demeanor during the hearing, see Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding that the Board must defer to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on observing the demeanor of witnesses testifying at a hearing and
the Board may overturn such determinations only when it has “sufficientl y
sound” reasons for doing so); see also Purifoy v. Department of Veterans Affairs ,
838 F.3d 1367, 1372-73 (Fed. Cir. 2016) (stating that, even if demeanor is not
explicitly discussed by an administrative judge, assessing a witness’s credibility
involves consideration of various factors, including a witness’s demeanor).
The appellant’s remaining arguments on review largely reiterate his
arguments below and fail to identify any specific errors in the initial decision.
PFR File, Tab 1. Thus, the Board will not embark upon a complete review of the
record. See Baney v. Department of Justice , 109 M.S.P.R. 242, ¶ 7 (2008);
Tines v. Department of the Air Force , 56 M.S.P.R. 90, 92 (1992); 5 C.F.R.
§ 1201.115(a)(2) (stating that a petitioner who alleges that the judge made
erroneous findings of material fact must explain why the challenged factual
determination is incorrect and identify specific evidence in the record that
demonstrates the error). Based on the foregoing, we discern no error in the
administrative judge’s decision to sustain the charge. 4
We remand the matter for the administrative judge to provide the parties with an
opportunity to present evidence and argument regarding whether the agency’s
error in sustaining the removal based on substantial evidence harmed the
appellant.
Notwithstanding the above findings, remand is still necessary. In the
decision notice removing the appellant, the deciding official applied the
substantial evidence standard to her review of the removal action. IAF, Tab 5
at 14. After the issuance of the initial decision in this matter, the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) decided Rodriguez
v. Department of Veterans Affairs , 8 F.4th 1290 (Fed. Cir. 2021). In Rodriguez,
8 F.4th at 1296-1301, the court found that the agency had erred by applying the
substantial evidence standard of proof to its internal review of a disciplinary
action under 38 U.S.C. § 714. The court found that substantial evidence is the
standard of review to be applied by the Board, not the agency, and that the
agency’s deciding official must apply the preponderance of the evidence standard
to “determine” whether the appellant’s “performance or misconduct . . . warrants”
the action at issue. Semenov v. Department of Veterans Affairs , 2023 MSPB 16,
¶ 21 (quoting Rodriguez, 8 F.4th at 1298-1301 (quoting 38 U.S.C. § 714(a)(1)));
see Bryant v. Department of Veterans Affairs , 26 F.4th 1344, 1347 (Fed. Cir.
2022) (agreeing with a petitioner that the agency’s decision was “legally flawed”
when the deciding official found the charge proved merely by substantial
evidence rather than preponderant evidence, as required under Rodriguez).
The Federal Circuit’s decision in Rodriguez applies to all pending cases,
regardless of when the events at issue took place. Semenov, 2023 MSPB 16, ¶ 22.
The administrative judge and the parties did not have the benefit of Rodriguez or
the Board’s application of it in Semenov; therefore, we are unable to address its
impact on this appeal. Accordingly, we remand this case for adjudication of
whether the agency’s application of the substantial evidence standard was
harmful error. See id., ¶ 23 (finding it appropriate to apply the harmful error
standard from 5 U.S.C. § 7707(c)(2) to actions taken under 38 U.S.C. § 714). A5
harmful error is an error by the agency in the application of its procedures that is
likely to have caused the agency to reach a different conclusion from the one it
would have reached in the absence or cure of the error. Ronso v. Department of
the Navy, 122 M.S.P.R. 391, ¶ 14 (2015); 5 C.F.R. § 1201.4(r). The appellant
bears the burden of proving his affirmative defenses by preponderant evidence.
5 C.F.R. § 1201.56(b)(2)(i)(C). On remand, the administrative judge should
provide the parties with an opportunity to present evidence and argument,
including at a supplemental hearing if requested by the appellant, addressing
whether the agency’s use of the substantial evidence standard constituted harmful
error.
On remand, the administrative judge should allow the parties an opportunity to
present evidence and argument regarding whether the agency considered the
Douglas 3 factors in determining the penalty.
In the initial decision, the administrative judge stated that “there is no
necessity under Section 714 for the agency to show that the deciding official
considered the Douglas factors.” ID at 16. As such, he did not consider the
reasonableness of the penalty, rather, finding that the agency “presented
substantial evidence to support its action.” Id. The appellant has not challenged
on review the administrative judge’s handling of the penalty. PFR File, Tab 1.
However, following the issuance of the initial decision, the Federal Circuit issued
Sayers v. Department of Veterans Affairs , 954 F.3d 1370 (Fed. Cir. 2020),
wherein it clarified that 38 U.S.C. § 714 requires the Board “to review for
substantial evidence the entirety of the [agency’s] removal decision—including
the penalty.” Id. at 1379; see Semenov, 2023 MSPB 16, ¶ 45. After it issued
Sayers, the Federal Circuit explained in Connor v. Department of Veterans
Affairs, 8 F.4th 1319, 1325-26 (Fed. Cir. 2021), that the agency and the Board
must still apply the Douglas factors4 to the selection and review of penalties in
3 Douglas v. Veterans Administration , 5 M.S.P.R. 280 (1981 ).6
disciplinary actions taken under 38 U.S.C. § 714. See Semenov, 2023 MSPB 16,
¶ 49.
Accordingly, on remand, the administrative judge shall permit the parties to
submit any additional evidence and argument, including at a supplemental
hearing if requested by the appellant, addressing the penalty issue. See id., ¶ 50.
In reviewing the penalty, the administrative judge should determine whether the
agency proved by substantial evidence that it properly applied the Douglas
factors and whether the agency’s penalty selection was reasonable and, if not, the
administrative judge should remand the appellant’s removal to the agency for a
new decision on the appropriate penalty. See id. (citing Connor, 8 F.4th
at 1326-27; Sayers, 954 F.3d at 1375-76).5
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
As outlined above, the administrative judge shall address whether the agency’s
error in applying the substantial evidence burden of proof to its action was
harmful. If the administrative judge determines that the agency’s error in
applying the incorrect burden of proof was not harmful, then he shall determine
whether the agency proved by substantial evidence that it applied the relevant
Douglas factors and that the penalty was reasonable.6 The administrative judge
may, if appropriate, incorporate into the remand decision his prior findings
concerning the agency’s proof of its charge.7 The administrative judge may also
incorporate into the remand decision, if appropriate, his prior findings regarding
4 In Douglas, 5 M.S.P.R. at 305-06, the Board articulated a nonexhaustive list of factors
relevant to the penalty determination in adverse actions.
5 If remanded to the agency, the agency should be mindful of its obligations to provide
the appellant with the necessary due process. See Bryant v. Department of Veterans
Affairs, 2024 MSPB 16, ¶¶ 11-13.
6 If the administrative judge finds that the agency committed harmful error such that the
disciplinary action is not sustained, he need not address the penalty issue.7
the appellant’s affirmative defense of race discrimination, but in doing so, the
administrative judge must apply the analytical framework set forth in Pridgen
v. Office of Management and Budget , 2022 MSPB 31.8
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
7 If any argument or evidence adduced on remand affects the administrative judge’s
prior analysis of any issue on this appeal, he should address such argument or evidence
in the remand decision.
8 The appellant does not challenge the administrative judge’s findings on review that he
failed to prove that his removal was based on racial discrimination. After the initial
decision was issued, the Board issued its decision in Pridgen. In light of the
administrative judge’s findings, the change in analytical framework articulated in
Pridgen appears not to provide a basis to disturb the administrative judge’s conclusion
regarding the appellant’s affirmative defense.8 | Hancock_Michael_D_DC-0714-19-0865-I-1_Remand_Order.pdf | 2024-12-18 | MICHAEL D. HANCOCK v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-0714-19-0865-I-1, December 18, 2024 | DC-0714-19-0865-I-1 | NP |
309 | https://www.mspb.gov/decisions/nonprecedential/Gradnigo_MichelleCB-1208-25-0006-U-1_Stay_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL
EX REL. MICHELLE GRADNIGO,
Petitioner,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CB-1208-25-0006-U-1
DATE: December 16, 2024
THIS STAY ORDER IS NONPRECEDENTIAL1
Dustin Frankel , Esquire, Washington, D.C., for the petitioner.
Michelle Gradnigo , Paradise, California, pro se.
Coleen L. Welch , Esquire, Martinez, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
ORDER ON STAY REQUEST
¶1Pursuant to 5 U.S.C. § 1214(b)(1)(A), the Office of Special Counsel (OSC)
requests that the Board stay Ms. Gradnigo’s probationary termination for 45 days
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
while OSC prepares a petition for corrective action. For the reasons discussed
below, OSC’s request is GRANTED.
BACKGROUND
¶2In its December 11, 2024 stay request, OSC states that it has reasonable
grounds to believe that the agency terminated Ms. Gradnigo from her position as
a Site Manager in March 2022, because of protected whistleblowing activity in
violation of 5 U.S.C. § 2302(b)(8). Stay Request File (SRF), Tab 1 at 4-5.
¶3OSC alleges that, during her tenure at the agency, Ms. Gradnigo made
disclosures about several property management issues and violations occurring at
the outpatient clinic where she was assigned, which resulted in an influx of
complaints being levied against her. Id. at 5. Specifically, OSC alleges that,
shortly after she began her employment with the agency, Ms. Gradnigo disclosed
to an Associate Director that a Nurse Manager had been misdirecting
agency-owned medical supplies in violation of various laws, rules, and
regulations. Id. at 9. Approximately 6 months after the appellant’s disclosures,
the Associate Director proposed Ms. Gradnigo’s termination. Id. According to
OSC, the Associate Director’s decision to recommend termination was
precipitated by the Nurse Manager having alleged that the appellant had trapped
her and another employee in an office. Id. OSC states that this allegation was
untrue and that the Nurse Manager made this false allegation because of the
appellant’s protected whistleblowing. Id.
¶4Following her termination, the appellant filed a complaint with OSC. Id.
at 5. On November 6, 2024, following its investigation, OSC issued a final
prohibited personnel practices report in accordance with 5 U.S.C. § 1214(b)(2)(B)
and requested that the agency respond within 30 days. Id. at 4-5. The agency
subsequently requested an extension so that it could complete its own internal
investigation. Id. at 4, 7. OSC avers that it declined to grant the agency a formal
extension; however, it informed the agency that it would not file its petition for2
corrective action before January 6, 2025, so that it may consider the agency’s
forthcoming response. Id. at 4-5, 7. OSC explains that it informed the agency
that, in the meantime, it would seek a stay from the Board so that Ms. Gradnigo
“does not continue to bear the cost of continued unemployment.” Id. at 5.
ANALYSIS
¶5Under 5 U.S.C. § 1214(b)(1)(A)(i), OSC “may request any member of the
Merit Systems Protection Board to order a stay of any personnel action for
45 days if [OSC] determines that there are reasonable grounds to believe that the
personnel action was taken, or is to be taken, as a result of a prohibited personnel
practice.” Such a request “shall” be granted “unless the [Board] member
determines that, under the facts and circumstances involved, such a stay would
not be appropriate.” 5 U.S.C. § 1214(b)(1)(A)(ii). OSC’s stay request need only
fall within the range of rationality to be granted, and the facts must be reviewed
in the light most favorable to a finding of reasonable grounds to believe that a
prohibited personnel practice was (or will be) committed. Special Counsel ex rel.
Aran v. Department of Homeland Security , 115 M.S.P.R. 6, ¶ 9 (2010).
Deference is given to OSC’s initial determination, and a stay will be denied only
when the asserted facts and circumstances appear to make the stay request
inherently unreasonable. See id.
¶6To establish a violation of 5 U.S.C. § 2302(b)(8), OSC must show that the
employee made a protected disclosure that was a contributing factor in the
challenged personnel action. See Hooker v. Department of Veterans Affairs ,
120 M.S.P.R. 629, ¶ 9 (2014). A disclosure is protected under 5 U.S.C. § 2302(b)
(8) if the employee has a reasonable belief that the information being disclosed
evidences a violation of law, rule, or regulation, gross mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 12
(2014). The standard for evaluating the reasonableness of the belief is whether a3
disinterested observer with knowledge of the essential facts known to and readily
ascertainable to the employee could reasonably conclude that the actions of the
Government evidence one of these types of wrongdoing. Id.
¶7Pursuant to OSC’s stay request, there are reasonable grounds to believe that
Ms. Gradnigo made protected disclosures under 5 U.S.C. § 2302(b)(8), by
disclosing the unlawful mismanagement of agency property. SRF, Tab 1 at 5, 9.
Furthermore, based on OSC’s assertions, there are reasonable grounds to believe
that Ms. Gradnigo had a reasonable belief that she was disclosing a violation of
law, rule, or regulation under 5 U.S.C. § 2302(b)(8); indeed, OSC indicates that
her disclosures were “later substantiated by an investigation.” Id. at 9.
Additionally, based on the alleged facts discussed above, there are reasonable
grounds to believe that Ms. Gradnigo’s protected disclosures were a contributing
factor in her probationary termination. Id.; see Karnes v. Department of Justice ,
2023 MSPB 12, ¶ 19 (explaining that an employee can establish that a prohibited
animus toward a whistleblower was a contributing factor in a personnel action by
showing that an individual with knowledge of the protected disclosure influenced
the officials who are accused of taking the personnel actions); see also Ayers v.
Department of the Army , 123 M.S.P.R. 11, ¶¶ 25-26 (2015) (finding that the
appellant satisfied the contributing factor criterion via the knowledge/timing test
when agency officials knew about the appellant’s protected disclosure and
removed her approximately 1 year after the disclosure).
¶8Considering the deference that should be afforded to OSC in the context of
an initial stay request and the assertions made in the instant stay request, I find
that there are reasonable grounds to believe that the agency terminated
Ms. Gradnigo during her probationary period in violation of 5 U.S.C. § 2302(b)
(8). See Sirgo v. Department of Justice , 66 M.S.P.R. 261, 267 (1995)
(recognizing that a probationary termination is a personnel action).4
ORDER
¶9Based on the foregoing, granting OSC’s stay request would be appropriate.
Accordingly, a 45-day stay of Ms. Gradnigo’s probationary termination is
GRANTED. The stay shall be in effect from December 16, 2024, through and
including January 29, 2025. It is further ORDERED as follows:
(1)During the pendency of this stay, the relator shall be placed in the
position she held prior to her probationary termination;
(2)The agency shall not effect any changes in the relator’s duties or
responsibilities that are inconsistent with the relator’s salary or
grade level, or impose upon the relator any requirement which is not
required of other employees of comparable position, salary, or grade
level;
(3)Within 5 working days of this Order, the agency shall submit
evidence to the Clerk of the Board showing that it has complied
with this Order;
(4)Any request for an extension of this stay pursuant to 5 U.S.C.
§ 1214(b)(1)(B) and 5 C.F.R. § 1201.136(b) must be received by the
Clerk of the Board and the agency, together with any further
evidentiary support, on or before January 14, 2025; and5
(5)Any comments on such a request that the agency wants the Board to
consider pursuant to 5 U.S.C. § 1214(b)(1)(C) and 5 C.F.R.
§ 1201.136(b) must be received by the Clerk of the Board on or
before January 21, 2025.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Gradnigo_MichelleCB-1208-25-0006-U-1_Stay_Order.pdf | 2024-12-16 | null | CB-1208-25-0006-U-1 | NP |
310 | https://www.mspb.gov/decisions/nonprecedential/Felten_Daniel_K_DE-844E-20-0195-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL K. FELTEN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-844E-20-0195-I-1
DATE: December 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Benjamin E. Wick , Esquire, and Holly V. Franson , Esquire,
Denver, Colorado, for the appellant.
Linnette L. Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
denying his Federal Employees’ Retirement System (FERS) disability retirement
application. For the reasons discussed below, we GRANT 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 distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
for review, REVERSE the initial decision and OPM’s final decision, and ORDER
OPM to award a disability retirement annuity to the appellant.
BACKGROUND
The appellant was a GS-13 Accountant for the Department of Veterans
Affairs (DVA), covered under FERS. Initial Appeal File (IAF), Tab 7 at 5. On
August 6, 2016, the appellant was arrested off-duty for possession of controlled
substances, a charge to which he later pled guilty. IAF, Tab 19 at 9-33. It
appears that the DVA was unaware of the matter until sometime later, and the
appellant continued working in his position, earning a summary performance
rating of “fully successful” for fiscal year 2017. IAF, Tab 13 at 5-9.
Subsequently, the DVA learned of the appellant’s arrest and conviction, and it
proposed to remove him based on a charge of conduct unbecoming. Id. at 33-34.
The appellant was removed effective May 18, 2018.2 IAF, Tab 7 at 5-6.
On or about December 10, 2018, the appellant filed an application for
disability retirement based on conditions of depression, anxiety, attention deficit
hyperactivity disorder, osteoarthritis,3 and posttraumatic stress disorder. IAF,
Tab 6 at 62-75. On May 23, 2019, OPM issued an initial decision denying the
appellant’s application on the basis that the appellant failed to show that he was
disabled for disability retirement purposes during the time of his employment. Id.
at 54-59. The appellant requested reconsideration, and on March 5, 2020, OPM
issued a final decision affirming its initial decision. Id. at 5-44.
The appellant timely filed the instant Board appeal, challenging OPM’s
determination. IAF, Tab 1 at 4-5. He waived his right to a hearing. Id. at 2.
After the close of the record, the administrative judge issued an initial decision
2 The appellant appealed his removal to the Board, and the appeal settled. Felten v.
Department of Veterans Affairs , MSPB Docket No. DA-0714-18-0357-I-1, Initial
Appeal File, Tabs 1, 7.
3 There is no obvious link between the appellant’s osteoarthritis and the substance of his
disability retirement claim, which appears to be based entirely on mental health
conditions.2
affirming OPM’s final decision. IAF, Tab 29, Initial Decision (ID) at 1, 10.
Considering the available medical and performance-related evidence, the
administrative judge found that the appellant failed to show that his psychological
conditions prevented him from rendering useful and efficient service prior to his
May 18, 2018 removal. ID at 4-9.
The appellant has filed a petition for review, disputing the administrative
judge’s interpretation of the facts and arguing that his claimed conditions resulted
in performance, conduct, and attendance deficiencies and were incompatible with
useful and efficient service as an Accountant. Petition for Review (PFR) File,
Tab 1 at 14-24. He also argues that accommodation in his position was
unreasonable. Id. at 24-25. OPM has responded to the petition for review, and
the appellant has replied to OPM’s response. PFR File, Tabs 3-4.
ANALYSIS
In an appeal from an OPM decision on a voluntary disability retirement
application, the appellant 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) he completed at least
18 months of creditable civilian service; (2) while employed in a position subject
to FERS, he became disabled because of a medical condition, resulting in a
deficiency in performance, conduct, or attendance, or, if there is no such
deficiency, the disabling medical condition is incompatible with either useful and
efficient service or retention in the position; (3) the condition is expected to
continue for at least 1 year from the date that the application for disability
retirement benefits was filed; (4) accommodation of the disabling medical
condition in the position held must be unreasonable; and (5) he 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). 3
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
he filed his application on December 10, 2018, that his conditions were expected
to continue for 1 year from that date, and that he did not decline a reasonable
offer of reassignment to a vacant position. ID at 4; IAF, Tab 24 at 12-13, 18;
Tab 23 at 6-7; Tab 26 at 5, 8. We decline to disturb those findings. Thus, the
appellant’s entitlement to a disability retirement annuity depends on whether he
had a disabling medical condition and whether accommodating that condition was
unreasonable. Thorne, 105 M.S.P.R. 171, ¶ 5.
There are two ways to meet the statutory requirement that the employee “be
unable, because of disease or injury, to render useful and efficient 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 his medical condition affects his ability to
perform specific work requirements, prevents him from being regular in
attendance, or causes him to act inappropriately. Id., ¶¶ 7-8. Alternatively, the
employee can show that his medical condition is incompatible with either useful
and efficient 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
setting. Id.
The appellant established that his medical conditions caused a deficiency in
performance, attendance, or conduct.
As found by the administrative judge, the appellant’s performance and
attendance deficiencies became unacceptable around October 2017. ID at 7; IAF,
Tab 13 at 9. However, the administrative judge found that the appellant failed to
demonstrate that his claimed conditions caused the deficiencies in his
performance and attendance, or that the conditions were incompatible with useful
and efficient service. ID at 5-10. Given the totality of the evidence, we find that4
the appellant has established a causal link between the deficiencies in his
performance and attendance and his claimed conditions.
Although objective medical evidence must be considered, such evidence is
not required to establish disability. Confer v. Office of Personnel Management ,
111 M.S.P.R. 419, ¶ 9 (2009) (citing Vanieken-Ryals v. Office of Personnel
Management, 508 F.3d 1034, 1040-42 (Fed. Cir. 2007)). The Board will consider
all pertinent evidence in determining an appellant’s entitlement to disability
retirement, including objective clinical findings, diagnoses and medical opinions,
subjective evidence of pain and disability, and evidence relating to the effect of
the applicant’s conditions on his ability to perform the duties of his 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. For 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 subjective account of how the condition has affected his ability to
do his job and his daily life; testimony or statements from supervisors, coworkers,
family members, and friends; and the appellant’s position description to conclude
the appellant’s medical conditions were disabling. Id.
On review, the appellant argues that a May 26, 2020 report from his
Licensed Professional Counselor (LPC), as well the information in his own
declaration, establishes the relationship between his mental health conditions and
his service deficiencies. PFR File, Tab 1 at 12-14, 17-21. In particular, the
appellant’s LPC explained that the appellant “struggled immensely with []his
position in the months leading up to his removal,” including his “inability to
concentrate . . . severe mood swings and suicidal ideation.” IAF, Tab 24 at 26.
The LPC also stated that he developed “serious problems with his sleep, which
only increased the severity of his mental conditions” and that “his supervisor
removed almost all responsibilities from [the appellant] stating that [he] had5
become unreliable for many tasks, including being on time to meetings,” which
she found “greatly worsened [the appellant’s] conditions and ability to cope with
life.” Id. She further explained that the appellant’s medical conditions “severely
affected him from functioning in almost every facet of life [and the appellant]
was unable to effectively manage his personal or professional life in any way in
the months leading up to his removal in May 2018.” Id. at 27. She concluded
that the appellant continues to suffer from these conditions and could not perform
the essential functions of his position or “employment of any kind.” Id. at 28.
Although not contemporaneous, we nevertheless find the May 26, 2020
LPC report to be persuasive for several reasons. First, we agree with the
appellant that the LPC’s regular and longstanding counseling relationship with
him, over a period of more than 5 years, adds to the persuasiveness of her
opinion. See Tan-Gatue v. Office of Personnel Management , 90 M.S.P.R. 116,
¶ 11 (2001) (observing that medical conclusions based on a long familiarity with
a patient are of greater weight than those based on a brief association or single
examination), aff’d per curiam , 52 F. App’x 511 (Fed. Cir. 2002). In addition,
the LPC’s report is lengthy and detailed, providing reasoned explanations for her
conclusions. IAF, Tab 24 at 24-28; see Bahm v. Department of the Air Force ,
38 M.S.P.R. 627, 632 (1988) (finding that the presence of a reasoned explanation,
as opposed to a mere conclusory assertion, increases the probative value of a
medical opinion).
Furthermore, our reviewing court has held that post-separation evidence of
an appellant’s medical condition may be probative of whether the appellant
became disabled while serving in a covered position “[w]here proximity in time,
lay testimony, or some other evidence provides the requisite link to the relevant
period.” Reilly v. Office of Personnel Management , 571 F.3d 1372, 1380-82
(Fed. Cir. 2009). Here, the appellant also provided his own declaration linking
his worsening mental conditions to the period of time when he was separated.
IAF, Tab 24 at 19-23. For example, the appellant explained that his medical6
conditions affected his ability to “concentrate on tasks because of lack of sleep,”
“decreased . . . energy and self-esteem,” and that he was experiencing “intrusive
thoughts about failing” and was “continually . . . distracted by thoughts of
inadequacy and incompetence.” Id. at 19. As a result, in his last year of his
employment, particularly after October 2017, he began to forget meetings, and
would “make mistakes on budget projections, including revenue and expense
forecasts, and leave out necessary details during budget execution that
management required for policy and managerial decision-making,” which in turn
caused his depression to worsen. Id. He also stated that he was even “failing at
simple tasks” such as staying on task, multi-tasking, speaking to people over the
phone, and responding to emails, which resulted in his supervisor removing him
from the IT Contractor Budget project and removing all his duties, leaving him
with “nothing to work on or do.” Id. at 19-20. Finally, he explained that between
October 2017 and his removal, he “regularly” took scheduled and unscheduled
leave for biweekly appointments with his LPC and noted, “[t]here were periods
where [he] called in for 4-5 days at a time because [he] could not get out of bed.”
Id. at 20.
Finally, although the Board has held that an appellant’s application for
disability retirement in the face of an impending removal for misconduct may cast
doubt on the veracity of his application; it is not fatal to eligibility. Henderson v.
Office of Personnel Management , 109 M.S.P.R. 529, ¶¶ 2-3, 9, 21 (2008) (finding
that the appellant established an entitlement to disability retirement despite the
suspicious timing of his application, which he submitted while he was indefinitely
suspended pending the outcome of a criminal charge of marijuana distribution);
see also Anderson v. Office of Personnel Management , 96 M.S.P.R. 299, ¶ 22
(2004) (recognizing that an individual’s failure to apply for disability retirement
until she is removed is a factor discounting the force of the application), aff’d per
curiam, 120 F. App’x 320 (Fed. Cir. 2005). As established above, the appellant’s
service deficiencies became unacceptable around October 2017, which is before7
the agency learned about the appellant’s conviction and proposed the appellant’s
removal in March 2018. IAF, Tab 6 at 66, Tab 13 at 33, Tab 24 at 31-34. This
timing, coupled with the appellant’s medical evidence and subjective report
establishing that his medical conditions caused his service deficiencies, outweigh
any doubt that the appellant may have applied for disability retirement benefits
merely in an effort to cast his misconduct and removal in a different light. IAF,
Tab 24 at 19-28; see Henderson, 109 M.S.P.R. 529, ¶ 21 (determining that
although the timing of an appellant’s disability retirement application was
suspect, he presented overwhelming medical evidence that corroborated his
subjective complaints and established that his medical condition was
incompatible with either useful and efficient service or retention in his former
position).
In conclusion, we find that the appellant has established that his mental
health conditions caused deficiencies in his performance and attendance.
Accordingly, we need not consider his remaining arguments that his mental health
conditions caused his off-duty misconduct for which he was ultimately removed
and that they were incompatible with any form of employment. PFR File, Tab 1
at 7-8, 15-18, 20-21.
The appellant established that accommodation of the disabling medical condition
is unreasonable.
Having found that the appellant established that he was disabled from
providing useful and efficient service in his Accountant position, we next
consider his claim that his conditions could not be accommodated. PFR File,
Tab 1 at 24-25. The administrative judge made no findings as to whether
accommodation of the appellant was unreasonable.
When an agency certification that accommodation is unavailable is
unrebutted and the record supports the conclusion that accommodation would not
be possible, the Board has held that this criterion for obtaining disability
retirement is met. Chavez v. Office of Personnel Management , 111 M.S.P.R. 69,8
¶ 15 (2009). Here, the DVA indicated that no reasonable accommodation efforts
were made because the appellant was removed. IAF, Tab 6 at 63. However, in
discussing the critical elements of the appellant’s position that he could no longer
successfully perform, the appellant’s supervisor observed that eventually he “was
not able to assign any tasks to [the appellant].” Id. at 66. Moreover, the
appellant and his LPC concluded that the appellant’s medical conditions
prevented him from performing any duties, including the essential functions of
his job. IAF, Tab 24 at 21-22, 28. Based on the DVA’s unrebutted belief that the
appellant could not be provided with a reasonable accommodation to perform his
duties and the evidence of record that the appellant’s medical conditions
prevented him from performing his job duties, we find that the appellant met his
burden to prove that he could not be reasonably accommodated in his position of
record.
Accordingly, we REVERSE the administrative judge’s initial decision and
OPM’s final decision.
ORDER
We ORDER OPM to grant the appellant disability retirement. OPM must
complete this action no later than 20 days after the date of this decision.
We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and to describe the actions it
took to carry out the Board’s Order. We ORDER the appellant to provide all
necessary information OPM requests to help it carry out the Board’s Order. The
appellant, if not notified, should ask OPM about its progress. See 5 C.F.R.
§ 1201.181(b).
No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with 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 contain9
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).
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 COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.10
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 11
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 12
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision. 5
U.S.C. § 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 13
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | Felten_Daniel_K_DE-844E-20-0195-I-1_Final_Order.pdf | 2024-12-11 | DANIEL K. FELTEN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-844E-20-0195-I-1, December 11, 2024 | DE-844E-20-0195-I-1 | NP |
311 | https://www.mspb.gov/decisions/nonprecedential/Honore_Leo_M_AT-0752-20-0313-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEO MARSHALL HONORE, JR.,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0752-20-0313-I-1
DATE: December 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joshua L. Klinger , Esquire, Denver, Colorado, for the appellant.
Marion Williams , Robins Air Force Base, Georgia, for the appellant.
Gregory Lloyd , Esquire, Robins Air Force Base, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained his demotion based on the charge of conduct unbecoming a supervisor.
On petition for review, the appellant continues to contest the charge against him
and reargues his due process and harmful procedural error affirmative defenses.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Honore_Leo_M_AT-0752-20-0313-I-1_Final_Order.pdf | 2024-12-11 | null | AT-0752-20-0313-I-1 | NP |
312 | https://www.mspb.gov/decisions/nonprecedential/Swidecki_Jamie_B_SF-3443-20-0581-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMIE B. SWIDECKI,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
SF-3443-20-0581-I-1
DATE: December 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jamie B. Swidecki , Bakersfield, California, pro se.
Kristin Murrock , Suitland, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his appeal regarding the delay in his position’s start date. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision.2 5 C.F.R. § 1201.113(b) .
¶2On his initial appeal form, the appellant indicated that he is a 10-point
preference-eligible Vietnam War veteran. Initial Appeal File (IAF), Tab 1 at 1.
In his petition for review, he asserts for the first time that the agency office
manager did not like veterans. Petition for Review File, Tab 1 at 1. At no point,
however, has the appellant asserted that the agency delayed in having him report
for duty because of his military service. Thus, even considering the liberal
construction standard for claims under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) and the appellant’s pro se status,
the appellant’s assertions do not nonfrivolously allege USERRA jurisdiction.
See Swidecki v. Department of Commerce, 113 M.S.P.R. 168, ¶ 6 & n.1 (2010)
2 On review, the appellant asserts for the first time various, purported improper actions
by the officer manager and other agency employees. Petition for Review File, Tab 1
at 1. The Board will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not previously
available despite the party’s due diligence. Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980). The appellant makes no such showing, and these
arguments are not material to the administrative judge’s determination that he failed to
make a nonfrivolous allegation of Board jurisdiction over his appeal. It is well settled
that the Board does not have jurisdiction over all matters that are unfair or incorrect.
Miller v. Department of Homeland Security, 111 M.S.P.R. 325, ¶ 14 (2009), aff’d 361 F.
App’x 134 (Fed. Cir. 2010); Preece v. Department of the Army, 50 M.S.P.R. 222, 226
(1991). 2
(stating that to establish Board jurisdiction over a USERRA appeal, an appellant
must allege, among other things, that the agency’s action was due to his
performance of duty or obligation to perform duty in the uniformed service).
¶3We recognize that the administrative judge did not provide the appellant
with notice of the specific jurisdictional requirements of a USERRA claim. But
the appellant’s mere assertion of his preference-eligible veteran status — the only
mention of his uniformed service below — did not raise a USERRA issue that
would trigger a requirement of detailed notice under Burgess v. Merit Systems
Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). IAF, Tab 1 at 1, 5;
cf. Brehmer v. U.S. Postal Service, 106 M.S.P.R. 463, 471 (2007) (McPhie,
concurring in part and dissenting in part) ( concurring in the decision to remand
the case for proper Burgess notice and adjudication of the appellant’s constructive
suspension claim which the appellant “clearly raised” and the administrative
judge did not address). Further, the appellant did not respond to the prompt in the
acknowledgement order informing him of the availability of a USERRA claim,
notifying him of the sufficiency of a nonfrivolous allegation to establish
jurisdiction over such a claim, and stating that if he indicated an intent to pursue
a USERRA claim, he would be informed of the specific jurisdictional
requirements. IAF, Tab 2 at 4-5 & n.2. To the extent the appellant ever intended
to assert a USERRA claim, an appellant who ignores an order of an
administrative judge “does so at his or her peril.” Mendoza v. Merit Systems
Protection Board, 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc). Under these
circumstances, we find that the absence of detailed jurisdictional notice does not
provide a basis to disturb the initial decision.
¶4Finally, to establish Board jurisdiction over an appeal brought under the
Veterans Employment Opportunities Act of 1998 (VEOA), an appellant must,
among other things, show by preponderant evidence that he exhausted his remedy
with the Department of Labor (DOL). Bent v. Department of State, 123 M.S.P.R.
304, ¶ 5 (2016). The appellant asserted below that he did not file a complaint3
regarding this matter with DOL. IAF, Tab 1 at 4. To the extent the appellant
sought to raise a VEOA claim below in asserting his preference-eligible status ,
the record thus shows that the Board plainly lacked jurisdiction over it. Any error
by the administrative judge in not informing the appellant of the specific
jurisdictional requirements of a VEOA claim was thus harmless, providing no
ground for relief . See Clark v. Department of the Army, 93 M.S.P.R. 563, ¶¶ 8-9
(2003) (finding that any omission in the notice of jurisdictional requirements
provided to an appellant did not prejudice his substantive rights when his own
allegations and the unrefuted evidence showed that the Board lacked jurisdiction
over his appeal), aff’d 361 F.3d 647 (Fed. Cir. 2004).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you5
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Swidecki_Jamie_B_SF-3443-20-0581-I-1_Final_Order.pdf | 2024-12-11 | JAMIE B. SWIDECKI v. DEPARTMENT OF COMMERCE, MSPB Docket No. SF-3443-20-0581-I-1, December 11, 2024 | SF-3443-20-0581-I-1 | NP |
313 | https://www.mspb.gov/decisions/nonprecedential/Washington_Vernon_J_DC-0752-20-0279-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VERNON J. WASHINGTON,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-20-0279-I-1
DATE: December 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vernon J. Washington , Havelock, North Carolina, pro se.
Anakah Harson , Cherry Point, North Carolina, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal for lack of candor on the written record.2 On petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 The appellant requests an “appeal of the [initial] decision orally,” but he does not
directly challenge the administrative judge’s determination to deny the appellant’s
request for a hearing as a sanction for his willful failure to comply with her order
directing full and complete responses to the agency’s discovery requests. Petition for
Review (PFR) File, Tab 1 at 4; Initial Appeal File (IAF), Tab 27 at 10. Nevertheless,
review, the appellant argues that the screening process for his application should
have detected the termination from a prior agency position that he omitted from
his hiring documents. He also argues, for the first time on review, that he was
terminated for exposing wrongdoing. Generally, we grant petitions such as 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
the record does not reflect that the administrative judge abused her discretion in
choosing this sanction, which is less drastic than an outright dismissal, an extreme
sanction that, under these circumstances, was also within her considerable discretion.
Roth v. Department of Transportation , 54 M.S.P.R. 172, 776 (1992) (finding that if a
failure to comply with a discovery order is willful, an administrative judge may go as
far as to order dismissal with prejudice, even though less drastic sanctions are
available), aff’d per curium , 988 F.2d 130 (1993) (Table). To the extent that the
appellant seeks oral presentation to the Board on review, the Board’s regulations do not
provide for a right to such presentation.2
review.3 Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
3 On review, the appellant raises allegations of racism relating to his 2015 termination
from a position with the agency during his probationary period and his 2013 resignation
from another position with the agency. PFR File, Tab 1 at 5, 11-12; Washington v.
Department of the Navy , MSPB Docket No. DA-315H-16-0032-I-1, Initial Decision
(June 3, 2016); Washington v. Department of the Navy , MSPB Docket No. SF-0752-14-
0264-I-1, Initial Decision (Sept. 5, 2014). Both decisions are the final decisions in each
appeal because neither party filed a petition for review. 5 C.F.R. § 1201.113(a).
Because the merits of the appellant’s prior termination and resignation are not at issue
here, the appellant did not raise these claims below, and the appellant fails to show that
they are based on new and material evidence that was unavailable, despite his due
diligence, before the close of the record below, we have not considered these
arguments. See Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016)
(observing that the Board generally will not consider an argument raised for the first
time in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence). Similarly, the
appellant argues for the first time on review that he was terminated for exposing
wrongdoing, and he includes undated photographs in support of his argument.
PFR File, Tab 1 at 5, 6-10. We have not considered this evidence and argument
because it is not clear what relevance it has to the instant appeal, and the appellant had
not shown why he could not have presented it below. Clay, 123 M.S.P.R. 246, ¶ 6;
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (noting that under 5 C.F.R.
§ 1201.115 the Board will not consider evidence submitted for the first time with the
petition for review absent a showing that it was unavailable before the record was
closed despite the party's due diligence).
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
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Washington_Vernon_J_DC-0752-20-0279-I-1_Final_Order.pdf | 2024-12-11 | VERNON J. WASHINGTON v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-20-0279-I-1, December 11, 2024 | DC-0752-20-0279-I-1 | NP |
314 | https://www.mspb.gov/decisions/nonprecedential/Walker_KathrynAT-315H-21-0406-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHRYN WALKER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-315H-21-0406-I-1
DATE: December 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kathryn Walker , Fort Gordon, Georgia, pro se.
Joy Warner , Esquire, Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant argues that the administrative judge erred in her
jurisdictional determination. Generally, we grant petitions such as this one only
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.1 5 C.F.R. § 1201.113(b).
1 The record in this appeal is sparse in the details of the appellant’s employment history,
particularly information regarding the period between the appellant’s employment by
the Department of the Army in Maryland in 2012 and her employment by the agency in
2020 prior to her 2021 appointment to the position at issue in this appeal. However, the
Board may take official notice of matters that can be verified, including documents or
actions in other Board appeals. 5 C.F.R. § 1201.64; Thomson v. Department of
Transportation, 92 M.S.P.R. 392, ¶ 6 (2002); Woodjones v. Department of the Army , 89
M.S.P.R. 196, ¶ 15 (2001); see Smith v. U.S. Postal Service , 107 M.S.P.R. 410, ¶ 7
(2007). In this case, the initial decision in a prior Board appeal filed by the appellant
contesting an earlier probationary termination by the agency, Walker v. Department of
Veterans Affairs, MSPB Docket No. DA-315H-21-0075-I-1, set forth the pertinent
details. We take official notice of that initial decision, which explained that the
appellant was terminated from the position of Installation Transportation Officer for the
Department of the Army during her probationary period, effective March 9, 2012, and
that she was terminated from the position of Supervisory Mobility Transportation
Specialist for the agency during her probationary period, effective November 9, 2020.
Walker v. Department of Veterans Affairs , MSPB Docket No. DA-315H-21-0075-I-1,
Initial Decision at 4 (Jan. 4, 2021). The appellant’s prior service ended approximately
5 months before her April 11, 2021 appointment to the position involved in this appeal.
Because the appellant’s prior service did not immediately precede her April 11, 2021
appointment, and there was a break in service of more than 30 days, the appellant’s
prior service cannot be tacked on. Hurston v. Department of the Army , 113 M.S.P.R.
34, ¶ 9 (2010). Because the agency terminated the appellant after a little over 1 month
of service, the appellant also did not complete 1 year of current continuous service
without a break in Federal civilian employment of a workday. Thus, the administrative2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
judge properly found that the appellant failed to nonfrivolously allege that she qualifies
as an “employee” with appeal rights under 5 U.S.C. chapter 75.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Walker_KathrynAT-315H-21-0406-I-1_Final_Order.pdf | 2024-12-10 | KATHRYN WALKER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-315H-21-0406-I-1, December 10, 2024 | AT-315H-21-0406-I-1 | NP |
315 | https://www.mspb.gov/decisions/nonprecedential/Sample_Dwayne_L_SF-0845-19-0643-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DWAYNE L. SAMPLE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0845-19-0643-I-1
DATE: December 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dwayne L. Sample , Colorado Springs, Colorado, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision issued by the Office of Personnel Management (OPM),
which determined that: (1) he had received an overpayment of $12,210.00 in
disability retirement annuity benefits under the Federal Employees’ Retirement
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
System (FERS), and (2) he was not entitled to a waiver of the recovery.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
VACATE the portion of the initial decision that adjusted OPM’s proposed
repayment schedule, we AFFIRM the initial decision.
The appellant contends that, because he filed for chapter 7 bankruptcy in
2017 and received a discharge of debt, he was relieved of any financial
obligations associated with the subject overpayment. Petition for Review (PFR)
File, Tab 1 at 4-10, Tab 5 at 3, 7, Tab 6 at 4. We do not agree. The appellant’s
discharge of debt pursuant to 11 U.S.C. § 727 occurred on May 22, 2017,
PFR File, Tab 6 at 4, prior to the subject overpayment, which accrued from
July 1, 2018, through April 30, 2019, Initial Appeal File (IAF), Tab 20 at 21.2
Thus, the appellant’s chapter 7 bankruptcy case is not material to the outcome of
this appeal.2
In her initial decision, the administrative judge modified OPM’s proposed
repayment schedule based on the appellant’s financial hardship. IAF, Tab 79,
Initial Decision (ID) at 9-13. However, the Board’s jurisdiction is limited to
actions or orders by OPM affecting the appellant’s “rights or interests” under
FERS, i.e., the existence and amount of his FERS annuity overpayment. See
5 U.S.C. § 8461(e)(1); see also Fletcher v. Office of Personnel Management ,
118 M.S.P.R. 632, ¶ 7 (2012) (stating that the Board’s statutory authority extends
only to OPM actions or orders that adversely affect an individual’s rights or
interests under FERS). Insofar as OPM is not seeking to collect the appellant’s
debt through deductions from annuity payments or administrative offset to some
other recurring payment of benefits, we find that OPM’s repayment schedule is
unrelated to his rights or interests under FERS and, therefore, outside the scope of
the Board’s jurisdiction.3
In this regard, we find that the facts of the instant appeal are identical in all
material respects to those in Fearon v. Office of Personnel Management ,
107 M.S.P.R. 122 (2007).4 In that case, the appellant was overpaid in disability
retirement annuity because she did not notify OPM promptly after she was
restored to earning capacity. Fearon, 107 M.S.P.R. 122, ¶¶ 2-3. The Board had
2 To support his argument, the appellant provides additional documents regarding his
chapter 7 bankruptcy case that were not included in the record before the administrative
judge. PFR File, Tab 1 at 4-10. However, we find that these documents are not
material to the outcome of this appeal. See Russo v. Veterans Administration ,
3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant a petition for review
based on new evidence absent a showing that it is of sufficient weight to warrant an
outcome different from that of the initial decision).
3 Although the appellant indicated on a Financial Resources Questionnaire that he was
receiving $3,279.22 per month in unspecified disability benefits, IAF, Tab 32 at 4,
OPM’s collection efforts did not involve these disability benefits, IAF, Tab 20 at 21-23.
4 Although Fearon involved a Civil Service Retirement System (CSRS) annuity, the
relevant statutory provisions of CSRS and FERS contain nearly identical language.
Compare 5 U.S.C. § 8347(d)(1), with 5 U.S.C. § 8461(e)(1). 3
jurisdiction to review the existence and amount of the overpayment, as well as the
appellant’s entitlement to a waiver of recovery because those issues affected her
rights or interests under the retirement statute. Id., ¶ 15. However, the Board
held that it lacked jurisdiction to adjust the recovery schedule:
If the appellant were receiving a [retirement] annuity, then a reduction in
that annuity to recover an overpayment would also affect her rights
and interests under [the retirement statute], and would also fall
within our jurisdiction. The appellant is not receiving such an
annuity, however, and OPM’s attempts to recover the overpayment
by other means, whether by persuading her to enter into a repayment
agreement, or by referring the matter to the Department of the
Treasury or the Department of Justice, do not affect her rights or
interest under [the retirement statute]. We therefore lack the
authority to adjudicate the appellant’s possible entitlement to an
adjustment of the recovery schedule.
Fearon, 107 M.S.P.R. 122, ¶ 15. Following Fearon, the Board took the same
approach in Zelenka v. Office of Personnel Management , 107 M.S.P.R. 522
(2007).
Accordingly, we vacate the initial decision only insofar as the
administrative judge adjusted OPM’s proposed repayment schedule. ID at 9-13.
The initial decision otherwise remains the Board’s final decision in this matter.
Although the Board has vacated the initial decision to the extent that it ordered an
adjustment of the proposed repayment schedule, nothing in this Final Order
prevents the appellant from submitting an updated Financial Resources
Questionnaire to OPM and requesting an adjustment to the repayment schedule.
See 5 C.F.R. §§ 845.301, .304-.305, .307(b).5
5 While the petition for review in this case was pending, the appellant filed another
Board appeal in which he challenged OPM’s December 9, 2022 reconsideration decision
denying his January 24, 2022 application for disability retirement following a period of
employment with the Bureau of Prisons. Sample v. Office of Personnel Management ,
MSPB Docket No. DE-844E-23-0084-I-1, Initial Decision (Aug. 2, 2023). The Board
issued an initial decision reversing OPM’s decision and ordering OPM to approve the
appellant’s 2022 application. Id. That initial decision became the Board’s final
decision when neither party filed a timely petition for review. Therefore, it appears that
the appellant is again receiving a disability retirement annuity. If OPM attempts to
recover the overpayment at issue in this case from the appellant’s future annuity4
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
payments, the Board would have jurisdiction over any challenge to the terms of that
recovery following OPM’s issuance of a final decision in the matter. 5 C.F.R.
§ 841.308.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on6
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or7
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Sample_Dwayne_L_SF-0845-19-0643-I-1_Final_Order.pdf | 2024-12-10 | DWAYNE L. SAMPLE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0845-19-0643-I-1, December 10, 2024 | SF-0845-19-0643-I-1 | NP |
316 | https://www.mspb.gov/decisions/nonprecedential/Hwig_HassanDC-0752-19-0440-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HASSAN HWIG,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-19-0440-I-1
DATE: December 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M. Jefferson Euchler , Virginia Beach, Virginia, for the appellant.
Lauren Leathers , Falls Church, Virginia, for the agency.
Tamara Nicole Borne , Portsmouth, Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his indefinite suspension based upon his failure to meet a condition of
employment following the revocation of his eligibility to access classified
information and/or assignment to duties that have been designated national
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
security sensitive. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
On petition for review, the appellant asserts that the agency violated his
due process rights by failing to disclose its reasons for revoking his eligibility to
access classified information and to be assigned duties that are national security
sensitive. Petition for Review File, Tab 1 at 6-8. The appellant also argues that
the administrative judge erred in denying his motion to compel discovery on this
issue. Id. at 7-8. He asserts that this information would have shown that the
agency revoked his eligibility in retaliation for his filing of a prior Board appeal.
Id. at 7.
The appellant’s assertions do not provide a basis for review. The agency
provided the appellant with minimal due process by informing him of the basis
2 The agency filed a motion to dismiss this matter as moot. Petition for Review File,
Tab 6. The agency correctly asserts that the Board issued a Final Order in Hwig v.
Department of the Navy , MSPB Docket No. DC-0752-18-0368-I-1 (Aug. 25, 2023),
sustaining the appellant’s removal, which was effective before the effective date of the
indefinite suspension that is at issue in this case. Id. The agency also indicates,
however, that if the Board decides not to dismiss the matter as moot, it should uphold
the indefinite suspension. Id. Because we hereby deny the appellant’s petition for
review and affirm the initial decision, the agency’s motion to dismiss is denied.2
for his indefinite suspension, i.e., that his position required eligibility to access
classified information and/or assignment to duties that have been designated
national security sensitive. See Palafox v. Department of the Navy , 124 M.S.P.R.
54, ¶ 10 (2016); Buelna v. Department of Homeland Security , 121 M.S.P.R. 262,
¶ 25 (2014); Initial Appeal File, Tab 8 at 33-36. Moreover, the administrative
judge properly found that the Board lacks the authority to review the appellant’s
retaliation claim because deciding such an allegation would involve an inquiry
into the validity of the agency’s reasons for deciding to revoke his eligibility to
access classified information or occupy a sensitive position. See Doe v.
Department of Justice , 118 M.S.P.R. 434, ¶ 40 (2012) (finding that the Board
lacked the authority to review a discrimination claim in an appeal based on the
suspension or revocation of access to classified information); see also Hesse v.
Department of State , 217 F.3d 1372, 1375-80 (Fed. Cir. 2000) (finding that the
Board lacked jurisdiction to review an employee’s claim that his security
clearance was suspended in retaliation for whistleblowing). Based on the
foregoing, the administrative judge did not abuse his discretion in denying the
appellant’s motion to compel the agency to respond to discovery requests on this
issue. See Vaughn v. Department of the Treasury , 119 M.S.P.R. 605, ¶ 15 (2013)
(stating that an administrative judge has broad discretion to rule on discovery
matters and that, absent an abuse of discretion, the Board will not find reversible
error in such rulings).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 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 requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at4
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 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
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Hwig_HassanDC-0752-19-0440-I-1_Final_Order.pdf | 2024-12-10 | HASSAN HWIG v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-19-0440-I-1, December 10, 2024 | DC-0752-19-0440-I-1 | NP |
317 | https://www.mspb.gov/decisions/nonprecedential/Diaz_NikkoSF-0752-21-0282-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NIKKO DIAZ,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-21-0282-I-1
DATE: December 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chalmers C. Johnson , Esquire, Port Orchard, Washington,
for the appellant.
Peter C. Tunis , Silverdale, Washington, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal based on the charge of drug use. On petition for review,
the appellant argues that the administrative judge erred in concluding that he
failed to prove an affirmative defense of a due process violation. Generally, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast,
a precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review.2 Therefore, we DENY the petition for review and
2 Regarding the appellant’s argument that the agency violated his due process rights
when the deciding official testified that it was his “policy” to remove an employee in a
testing designated position (TDP) who fails a drug test, we discern no error in the
administrative judge’s conclusion that the appellant failed to prove this claim. Initial
Appeal File (IAF), Tab 10, Hearing Recording (HR) (statements from appellant’s
counsel and testimony of the deciding official), Tab 12, Initial Decision (ID) at 11-13;
Petition for Review (PFR) File, Tab 1 at 7. The essential requirements for minimal
constitutional due process for a tenured public employee are notice of the charges
against him, an explanation of the evidence, and an opportunity for him to present his
account of events. Cleveland Board of Education v. Loudermill , 470 U.S. 532, 546
(1985). The reply opportunity may not be an empty formality, and the deciding official
should have authority to change the outcome of the proposed action based on the reply.
Hairston v. Department of Defense , 119 M.S.P.R. 162, ¶ 21 (2014), modified on other
grounds by Buelna v. Department of Homeland Security , 121 M.S.P.R. 262, ¶ 18 n.7
(2014). In other words, to the extent that there are viable alternatives to a proposed
adverse action, due process requires that the employee be afforded an opportunity to
invoke the discretion of a deciding official with the authority to select such alternatives.
See Buelna, 121 M.S.P.R. 262, ¶ 28. Here, although the deciding official’s assessment
of the appropriate penalty for an employee in a TDP who fails a drug test appears rigid,
we agree with the administrative judge that the appellant had the opportunity to invoke
the deciding official’s discretion, particularly with respect to the underlying charge. ID
at 12. Moreover, the appellant has not argued that the deciding official was bound by
the proposed removal, by agency officials superior to him, or by any formal agency
policy that mandates removal for a first offense of a failed drug test. Thus, the
appellant has not established that the deciding official was without authority to
reconsider the proposed penalty of removal upon receipt of a reply, and thus, he has
failed to prove that the agency violated his due process rights.2
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case,
you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit.
The Board neither endorses the services provided by any attorney nor warrants
that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail,
the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Diaz_NikkoSF-0752-21-0282-I-1_Final_Order.pdf | 2024-12-09 | NIKKO DIAZ v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-21-0282-I-1, December 9, 2024 | SF-0752-21-0282-I-1 | NP |
318 | https://www.mspb.gov/decisions/nonprecedential/James_MarciaAT-0432-20-0579-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARCIA JAMES,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0432-20-0579-I-1
DATE: December 9, 2024
THIS ORDER IS NONPRECEDENTIAL1
Marcia James , Riverview, Florida, pro se.
Holly L. Buchanan Eglin Air Force Base, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action removing her for unacceptable performance pursuant
to 5 U.S.C. chapter 43. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the Atlanta Regional Office for further adjudication consistent with
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Santos v. National Aeronautics and Space Administration, 990 F.3d 1355
(Fed. Cir. 2021).
BACKGROUND
The appellant was employed as a GS-11 Budget Analyst at the MacDill Air
Force Base in Tampa, Florida. Initial Appeal File (IAF), Tab 4 at 12. On
June 7, 2019, the appellant was placed on a performance improvement plan (PIP)
to address her performance issues in five critical elements of her position:
(1) Budget Formulation, (2) Budget Execution, (3) Assistance and Guidance,
(4) Research and Analysis of Budget Reports, and (5) Lead Budget Analyst. IAF,
Tab 5 at 21-27. At the end of the PIP, which was extended to August 27, 2019,2
the appellant’s supervisor determined that the appellant had not raised her
performance to an acceptable level in the critical element of Assistance and
Guidance. IAF, Tab 5 at 4-5, Tab 8 at 9. The agency removed the appellant
under 5 U.S.C. chapter 43 for unacceptable performance in the critical element of
Assistance and Guidance, effective May 8, 2020. IAF, Tab 4 at 13-18.
The appellant filed an appeal with the Board, alleging that the agency
deemed her performance unacceptable even though they gave other analysts
passing appraisals for using the same documentation she was told to use to
complete the Tri-Annual Review.3 IAF, Tab 1 at 5. After holding the appellant’s
2 The PIP was originally intended to be in effect for 45 days. IAF, Tab 5 at 26.
However, on July 12, 2019, the appellant’s supervisor notified the appellant that she
was extending the PIP to August 6, 2019. Id. at 28. On August 6, 2019, the appellant’s
supervisor notified the appellant that she was extending the PIP a second time to
September 30, 2019. Id. at 29. The appellant’s supervisor explained that September 30,
2019, would have been the end of a budget review cycle. IAF, Tab 13, Hearing
Recording (HCD) (testimony of the appellant’s supervisor). However, the PIP actually
ended on August 27, 2019 . IAF, Tab 4 at 13. The appellant was pulled from the duties
on August 27, 2019, because her supervisor was concerned about the quality of her
work. Id. at 16.
3 The Tri-Annual Review (TAR) is a financial review that occurs three times a year.
IAF, Tab 13, HCD (testimony of the appellant’s supervisor). During the TAR, the
comptroller’s office identifies accounting lines with funds that are not being used and
determines whether the funds are still needed or if the funds can be de-obligated so that2
requested hearing, the administrative judge affirmed the appellant’s removal.
IAF, Tab 15, Initial Decision (ID). The administrative judge noted that the
appellant did not raise the issue of whether the agency proved that the Office of
Personnel Management (OPM) had approved its performance appraisal system
and deemed it unnecessary to make a formal finding on this issue. ID at 5 n.2.
She found that the agency proved that: (1) the performance standards were valid;
(2) they were communicated to the appellant at the beginning of the appraisal
period; (3) the appellant was warned of her deficiencies during the appraisal
period and given an adequate opportunity to improve; and (4) the appellant’s
performance remained unacceptable during the PIP period in a critical element.
ID at 5-18.
The appellant has filed a petition for review and a supplement. Petition for
Review (PFR) File, Tabs 1-2. The agency has responded in opposition to the
petition for review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
We agree with the administrative judge that the agency proved the elements of its
chapter 43 action under the law when the initial decision was issued.
At the time the initial decision was issued, the Board’s case law stated that,
to prevail in a performance-based removal appeal under chapter 43, the agency
must establish by substantial evidence that: (1) OPM approved its performance
appraisal system and any significant changes thereto; (2) the agency
communicated to the appellant the performance standards and critical elements of
her position; (3) the appellant’s performance standards were valid under 5 U.S.C.
§ 4302; (4) the agency warned the appellant of the inadequacies of her
performance during the appraisal period and gave her a reasonable opportunity to
demonstrate acceptable performance; and (5) the appellant’s performance
remained unacceptable in one or more of the critical elements for which she was
they can be used elsewhere. Id. The appellant was the point of contact for the TAR,
and it was her responsibility to go over the accounting lines with unused funds and refer
them to work units for more information or gather the information herself. Id.3
provided an opportunity to demonstrate acceptable performance. White v
Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 5 (2013); Lee v.
Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 5 (2010). The
administrative judge found that the agency proved the elements of a chapter 43
action. ID at 5-17.
On review, the appellant challenges the administrative judge’s decision not
to make a formal finding on whether the agency proved that OPM had approved
its performance appraisal system. PFR File, Tab 1 at 5-6, Tab 2 at 8; ID at 5 n.2.
She asserts that “anything regarding the PIP should be removed since it was
proved invalid.” PFR File, Tab 2 at 8.
Ordinarily, the Board will presume that the agency is in compliance with
this requirement; however, if an appellant has alleged that there is reason to
believe the agency has not received OPM approval for its performance appraisal
system or any significant changes to an approved system, it is the agency’s
burden to demonstrate that it has received the necessary approval. Adamsen v.
Department of Agriculture, 116 M.S.P.R. 331, ¶ 6 (2011); Lee, 115 M.S.P.R. 533,
¶ 5. The appellant did not raise such a challenge until her petition for review.
The Board generally will not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. Clay v. Department of
the Army, 123 M.S.P.R. 245, ¶ 6 (2016). Even if we were to consider the
appellant’s assertion, it appears to address the validity of the PIP rather than the
agency’s performance appraisal system. Under these circumstances, we find that
it is appropriate to apply the presumption that OPM has approved the agency’s
performance appraisal system; thus, the agency proved the first element.
The appellant has not challenged, and we discern no reason to disturb, the
administrative judge’s findings as to the second and third elements. To the extent
that the appellant is challenging the administrative judge’s findings as to the
fourth and fifth elements, she has not identified a basis to disturb them. 4
Remand is required in light of Santos.
Notwithstanding, remand is required for a different reason. While this case
was pending on review, the U.S. Court of Appeals for the Federal Circuit
recognized for the first time that an agency must prove an additional element to
support an adverse action charge under chapter 43. Santos, 990 F.3d at 1360-61.
Specifically, the agency “must justify institution of a PIP” by proving the
employee’s performance was unacceptable before the PIP. Id. at 1360; Lee v.
Department of Veterans Affairs, 2022 MSPB 11, ¶ 14. The holding applies to all
pending cases, regardless of when the events took place. Lee, 2022 MSPB 11,
¶ 16.
Although the record contains some evidence regarding the appellant’s pre-
PIP performance, the parties were not on notice as to this element. Thus, we must
remand the appeal to give the parties an opportunity to present additional
evidence as to whether the appellant’s performance was unacceptable in one or
more critical elements prior to the issuance of the PIP. See Lee, 2022 MSPB 11,
¶ 16 (remanding the chapter 43 appeal because the parties were not informed of
the modified standard set forth in Santos).
On remand, the administrative judge shall accept argument and evidence on
this issue and hold a supplemental hearing, if appropriate. The administrative
judge shall then issue a new initial decision consistent with Santos. If the agency
makes the additional showing required under Santos on remand, the
administrative judge may incorporate in the remand initial decision her prior
findings on the other elements of the agency’s case. See id. 5
ORDER
For the reasons discussed above, we REMAND this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | James_MarciaAT-0432-20-0579-I-1_Remand_Order.pdf | 2024-12-09 | MARCIA JAMES v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0432-20-0579-I-1, December 9, 2024 | AT-0432-20-0579-I-1 | NP |
319 | https://www.mspb.gov/decisions/nonprecedential/Bencker_Robin_F_PH-0845-19-0451-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBIN F. BENCKER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0845-19-0451-I-1
DATE: December 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robin F. Bencker , Holland, Pennsylvania, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of the Office of Personnel Management’s final decision
concerning an overpayment determination as untimely filed without good cause
shown. On petition for review, the appellant argues that her illness and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
responsibility to care for her ill father caused her to file her appeal late.2
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Although the appellant appears to have filed her petition for review 1 day late,
because the administrative judge properly dismissed the appeal as untimely filed, we
need not address the timeliness of the petition for review.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 4
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Bencker_Robin_F_PH-0845-19-0451-I-1_Final_Order.pdf | 2024-12-06 | ROBIN F. BENCKER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0845-19-0451-I-1, December 6, 2024 | PH-0845-19-0451-I-1 | NP |
320 | https://www.mspb.gov/decisions/nonprecedential/Cox_Rachel_E_AT-0752-20-0661-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RACHEL E. COX,
Appellant,
v.
NATIONAL AERONAUTICS AND
SPACE ADMIN,
Agency.DOCKET NUMBER
AT-0752-20-0661-I-1
DATE: December 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jesse L. Kelly, II , Esquire, and Shaun C. Southworth, Esquire,
Atlanta, Georgia, for the appellant.
Heather J. Akram , Esquire, and Trevor Oktay Tezel , Esquire,
Kennedy Space Center, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
mitigated the appellant’s removal to a 60-day suspension. 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
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
discussed below, we VACATE the initial decision and DISMISS the appeal as
settled.
After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT,” dated November 7, 2024. The
document provides, among other things, for the withdrawal of the appeal.
Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ).
Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. Petition for Review File, Tab 4. The parties have
also agreed that the initial decision should be vacated. Id. In addition, we find
that the agreement is lawful on its face and freely entered into. 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, and we
accept the settlement agreement into the record for enforcement purposes.
This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial2
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Cox_Rachel_E_AT-0752-20-0661-I-1_Final_Order.pdf | 2024-12-05 | RACHEL E. COX v. NATIONAL AERONAUTICS AND SPACE ADMIN, MSPB Docket No. AT-0752-20-0661-I-1, December 5, 2024 | AT-0752-20-0661-I-1 | NP |
321 | https://www.mspb.gov/decisions/nonprecedential/Soto_HectorAT-4324-21-0055-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HECTOR SOTO,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-4324-21-0055-I-1
DATE: December 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Hector Soto , Riviera Beach, Florida, pro se.
Christian Piatt , Esquire, Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his Uniformed Services Employment and Reemployment Rights Act
(USERRA) appeal for lack of standing because he failed to nonfrivolously allege
that he had been denied a benefit of employment or that the agency had taken any
action against him. On petition for review, the appellant argues that he has new
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
and material evidence that demonstrates actual harm. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2The appellant asserts on review that he has new evidence showing that, if
the agency applies its new policy, which effectively requires cytotechnologists
such as the appellant to acquire a private-sector certification in order to be
promoted, military -trained cytotechnologists like him will be disadvantaged,
thereby establishing actual harm. Petition for Review File, Tab 1 at 4-8. This
evidence consists of several emails between him and human resources personnel,
which, he alleges, show that if he were to apply for a promotion, the new policy
would apply to him. Id. at 9-14. Because this evidence does not contradict the
administrative judge’s finding that the appellant did not suffer actual harm, we
agree with the administrative judge that the appellant has failed to make a
nonfrivolous allegation that he has been denied a benefit of employment. Initial
Appeal File (IAF), Tab 7, Initial Decision at 4.
¶3Ultimately, the appellant has not asserted, either below or on review, that he
was denied a promotion due to the policy he identified or that he applied for a2
promotion in the first instance.2 Indeed, the “action” he is appealing here is the
agency’s November 25, 2019 policy update regarding the qualification standard
for the appointment and advancement of cytotechnologists. IAF, Tab 1 at 3, 7.
The Board’s remedial authority under USERRA requires the appellant to identify
actual harm and does not extend to speculative matters. See Johnson v. U.S.
Postal Service, 121 M.S.P.R. 101, ¶ 11 (2014) (observing that the Board’s
remedial authority under USERRA comes from 38 U.S.C. § 4324(c)(2), which
authorizes the Board to enter an order requiring an agency to comply with the
provisions of USERRA and to compensate an appellant for any loss of wages or
benefits suffered by reason of such lack of compliance).
¶4Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 If the appellant does apply for promotion and is denied on the basis of the policy he
identified here and believes that discrimination on the basis of his military service may
be the basis for that nonpromotion, the appellant may file a new USERRA appeal with
the regional office. Such an appeal must be filed consistent with law and the Board’s
regulations.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 5
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. 7 | Soto_HectorAT-4324-21-0055-I-1_Final_Order.pdf | 2024-12-05 | HECTOR SOTO v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-4324-21-0055-I-1, December 5, 2024 | AT-4324-21-0055-I-1 | NP |
322 | https://www.mspb.gov/decisions/nonprecedential/Freudenberg_Rocky_AT-1221-21-0377-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROCKY FREUDENBERG,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-21-0377-W-1
DATE: December 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Allen A. Shoikhetbrod , Esquire, Albany, New York, for the appellant.
Robert Vega , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
*Member Kerner recused himself
and did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant made a nonfrivolous allegation that disclosures 4 and 10
were protected and that he exhausted his administrative remedies with respect to
personnel actions 7, 8, 9, and 11 , we AFFIRM the initial decision.
BACKGROUND
The appellant is a GS-14 Management and Program Analyst for the
agency’s Veterans Health Administration (VHA). Initial Appeal File (IAF),
Tab 1 at 7, Tab 15 at 20. On November 8, 2018, he filed a whistleblower
complaint with the Office of Special Counsel (OSC), alleging that the agency had
taken multiple personnel actions against him in retaliation for multiple protected
disclosures. IAF, Tab 11 at 29-101. He provided additional information to OSC
on May 15, 2019, and February 22, 2021. Id. at 103, 105-06. On February 26,
2021, OSC closed the appellant’s file without taking corrective action. IAF, Tab
11 at 114-16. On April 30, 2021, the appellant filed the instant IRA appeal and
requested a hearing. IAF, Tab 1 at 2, 8, 16-19.2
The administrative judge issued a jurisdictional order, notifying the
appellant of his burden of proof as to his IRA appeal and giving him specific
directions on filing evidence and argument pertinent to the jurisdictional issue.
IAF, Tab 3. The appellant responded, providing a copy of his OSC complaint and
identifying the subject of his Board appeal as 10 protected disclosures and
14 retaliatory actions. IAF, Tab 11 at 11-17, 29-117. After the record on
jurisdiction closed, the administrative judge issued an initial decision dismissing
the appeal for lack of jurisdiction without a hearing. IAF, Tab 18, Initial
Decision (ID). She found that, out of the 10 disclosures that the appellant
identified, for only one of them did he exhaust his administrative remedies and
make a nonfrivolous allegation that it was protected under the Whistleblower
Protection Act (WPA). ID at 3-9. She further found that, out of the 14 alleged
retaliatory actions that the appellant identified, for only five of them did he
exhaust his administrative remedies and make nonfrivolous allegations that they
constituted “personnel actions” under the WPA. ID at 9-12. As to these five
personnel actions, the administrative judge found that the appellant failed to make
a nonfrivolous allegation that his protected disclosure was a contributing factor in
any of them. ID at 12-14.
The appellant has filed a petition for review, disputing the administrative
judge’s analysis and findings. Petition for Review (PFR) File, Tab 1. The
agency has filed a response. PFR File, Tab 3.
ANALYSIS
To establish Board jurisdiction over an IRA appeal, an appellant must show
by preponderant evidence that he exhausted his remedies before OSC, and make
nonfrivolous allegations that: (1) he made a disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in a protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a3
personnel action as defined by 5 U.S.C. § 2302(a)(2)(A).2 Linder v. Department
of Justice, 122 M.S.P.R. 14, ¶ 6 (2014); 5 C.F.R. § 1201.57(a)(1). A nonfrivolous
allegation is an assertion that, if proven, could establish jurisdiction over the
matter at issue. 5 C.F.R. § 1201.4(s). The question of whether the appellant has
nonfrivolously alleged protected disclosures that contributed in a personnel action
must be determined based on “whether [he] alleged 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). “The
Board may not deny jurisdiction by crediting the agency’s interpretation of the
evidence as to whether the alleged disclosures fell within the protected categories
or whether the disclosures were a contributing factor in an adverse personnel
action.” Id. at 1369. To exhaust his administrative remedies, an appellant must
provide OSC with a sufficient basis to pursue an investigation. Chambers v.
Department of Homeland Security , 2022 M.S.P.B. 8, ¶ 10.
The appellant made a nonfrivolous allegation that he engaged in a protected
activity under 5 U.S.C. § 2302(b)(9)(C) for which he exhausted his administrative
remedies.
Disclosure 1
According to the appellant’s jurisdictional pleading, on January 28, 2013,
he disclosed allegations of fraud, waste, and abuse to the agency’s Office of
Inspector General (OIG). IAF, Tab 11 at 11. The administrative judge found that
this disclosure was a protected activity and that the appellant raised the matter
with OSC with sufficient clarity to satisfy the exhaustion requirement. ID at 8-9.
Neither party contests this finding on review, and we find that it is supported by
the record and the law. IAF, Tab 11 at 114; see 5 U.S.C. § 2302(b)(9)(C)
2 To the extent that the appellant requests that the Board remand this appeal for a
jurisdictional hearing, we deny that request. PFR File, Tab 1 at 17, 21. An appellant is
not entitled to a jurisdictional hearing in an IRA appeal because the Board has
jurisdiction over such an appeal only if the appellant nonfrivolously alleges that he
satisfied the prima facie elements of his claim. Graves v. Department of Veterans
Affairs, 123 M.S.P.R. 434, ¶ 22 (2016).4
(protecting employees from retaliation for disclosing information to the Inspector
General of an agency); Fisher v. Department of the Interior , 2023 MSPB 11 , ¶ 8
(explaining that under the broadly worded provision of 5 U.S.C. § 2302(b)(9)(C),
any disclosure of information to an agency OIG or OSC is protected regardless of
its content as long as such disclosure is made in accordance with applicable
provisions of law).
Disclosures 2 and 3
According to the appellant’s jurisdictional pleading, he made disclosure 2
on or about June 17, 2015, when he told his supervisor that he intended to report
“fraud, waste, and abuse.” IAF, Tab 11 at 11. Similarly, the appellant identified
disclosure 3 as a series of emails that he sent to an agency management official in
April 2016, “concerning fraud, waste, and abuse.” Id. Without specifically
deciding whether the appellant exhausted these matters with OSC, the
administrative judge found that he failed to make a nonfrivolous allegation that
these disclosures were protected because he failed to specify the nature of the
fraud, waste, and abuse at issue and failed to identify the factual basis for his
belief that any fraud, waste, or abuse had occurred. ID at 7.
On petition for review, the appellant argues that disclosure 2 was protected
under 5 U.S.C. § 2302(b)(9)(B). PFR File, Tab 1 at 21. This provision prohibits
retaliation against employees who testify for or otherwise lawfully assist any
individual in his pursuit of an appeal, complaint, or grievance right granted by
any law, rule, or regulation. Graves v. Department of Veterans Affairs ,
123 M.S.P.R. 434, ¶¶ 12-14 (2016). It would cover matters such as testifying in
another employee’s Board appeal or helping a coworker prepare a grievance.
See Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 10 (2015)
(determining that performing union-related activities, such as filing grievances
and representing other employees in the grievance process are protected activities
under 5 U.S.C. § 2302(b)(9)(B)). Here, the appellant has not explained how his
statement to his supervisor was connected with anyone’s pursuit of any appeal,5
complaint, or grievance. See McCrary v. Department of the Army , 2023 MSPB
10, ¶¶ 23-24 (explaining that, to nonfrivolously allege that he engaged in activity
protected under 5 U.S.C. § 2302(b)(9)(B), it was insufficient for an appellant to
allege that he exercised a grievance right or raised a concern about disability
discrimination against a coworker absent a claim that his coworker filed a
complaint or grievance on the matter). We, therefore, find that he has not made a
nonfrivolous allegation that disclosure 2 was protected under 5 U.S.C. § 2302(b)
(9)(B).
The appellant also argues that an employee’s announcement that he will
make a protected disclosure may constitute protected conduct in itself. PFR File,
Tab 1 at 17. The appellant is correct that an individual’s stated intention to make
a protected disclosure may afford him protection as a “perceived whistleblower.”
See, e.g., Sirgo v. Department of Justice , 66 M.S.P.R. 261, 266 (1995);
Mausser v. Department of the Army , 63 M.S.P.R. 41, 44 (1994). However, this
does not absolve the appellant of his basic obligation to identify with some degree
of specificity what type of “fraud, waste, and abuse” he was alleging. Although
an appellant need not actually make a protected disclosure in order to be
perceived as a whistleblower, he still must show that the relevant agency officials
believed that he “made or intended to make disclosures that evidenced the type of
wrongdoing listed under 5 U.S.C. § 2302(b)(8).” King v. Department of the
Army, 116 M.S.P.R. 689, ¶ 8 (2011). Although the administrative judge explicitly
apprised the appellant of this standard in her jurisdictional order, the appellant
has not identified the subject matter of his intended disclosure with sufficient
specificity to meet the nonfrivolous allegation standard. IAF, Tab 3 at 5; see
Rzucidlo v. Department of the Army , 101 M.S.P.R. 616, ¶ 17 (2006) (finding that
conclusory allegations lacking in specificity do not constitute nonfrivolous
allegations of IRA jurisdiction). For the reasons explained in the initial decision,
we agree with the administrative judge that the appellant failed to make a6
nonfrivolous allegation that disclosures 2 and 3 were protected, or alternatively
that he was perceived as a whistleblower in connection with disclosure 2. ID at 7.
Disclosure 4
The appellant identified disclosure 4 as several letters that he sent to U.S.
Senator Isakson from Georgia in April and May of 2016, in which he reported
“fraud, waste, and abuse” at the agency. IAF, Tab 11 at 11. The administrative
judge found that the appellant failed to raise this issue to OSC and failed to make
a nonfrivolous allegation that it was protected. ID at 5-6 & n.4.
On petition for review, the appellant disputes the administrative judge’s
finding on exhaustion, arguing that he raised this issued before OSC with
sufficient clarity and precision for OSC to pursue an investigation. PFR File,
Tab 1 at 15-16. We disagree. In his 72-page OSC complaint, the appellant made
one cryptic and passing reference to this matter, stating, “In the past, I have
notified my Congressman and OSC where [subject matter experts] (SMEs) did not
believe the [Broad Agency Announcement] submission should be selected by the
[agency] leadership but [agency] leadership were not provided SME selection
information.” IAF, Tab 11 at 38. Not only did the appellant fail to identify the
congressman to whom he disclosed this information or the approximate dates of
any such disclosures, in context, it also does not appear that the appellant was
even alleging retaliation for this disclosure. Id. We, therefore, agree with the
administrative judge that the appellant failed to articulate this matter sufficiently
to satisfy the exhaustion requirement. ID at 5-6.
The appellant also disputes the administrative judge’s finding that
disclosure 4 was not protected, arguing that his OSC complaint contains a
sufficient explanation of the content of this disclosure. PFR File, Tab 1 at 17-18.
We agree. The administrative judge appears to have reviewed the appellant’s
OSC complaint in its entirety but failed to make a connection between this
passage and disclosure 4 as the appellant described it in his jurisdictional
pleading. At the very least, the connection is not obvious, and no one could be7
expected to make it absent a specific explanation, such as the one that the
appellant has offered for the first time on petition for review. Nonetheless, we
have considered the appellant’s argument. With the knowledge that the
appellant’s allegations of “fraud, waste, and abuse” specifically concerned
internal agency communication failures that allegedly led to “tens of millions of
dollars” in funding misallocations, we now find that the appellant did make a
nonfrivolous allegation that this disclosure was protected under 5 U.S.C.
§ 2302(b)(8)(A)(ii).3 IAF, Tab 11 at 38. Nevertheless, the Board still lacks
jurisdiction to consider this disclosure in the context of this appeal because the
appellant failed to satisfy the exhaustion requirement.
Disclosure 5
Disclosure 5 was the appellant’s November 8, 2018 OSC whistleblower
complaint – the very complaint underlying the instant IRA appeal – along with
additional information that the appellant provided to OSC on March 15, 2019, and
February 22, 2021.4 IAF, Tab 11 at 12. This activity is protected under 5 U.S.C.
§ 2302(b)(9)(C). However, the administrative judge found that the appellant
failed to show that he exhausted his administrative remedies with respect to this
activity because there was no evidence that he asked OSC to investigate any
retaliation for filing the complaint. ID at 5 & n.3.
On petition for review, the appellant argues that the administrative judge
disregarded his sworn declaration, in which he stated, “I hereby swear or affirm
that the allegations raised in the Response were filed with OSC to the best of my
personal knowledge, information, and belief.” PFR File, Tab 1 at 7; IAF, Tab 11
at 25. The Board has held that sworn statements that are not rebutted are
3 The appellant also argues that disclosure 4 was protected under 2302(b)(9)(A)(i). PFR
File, Tab 1 at 21. This argument is dubious on its face, but we decline to reach it in
light of our finding that the appellant made a nonfrivolous allegation that the disclosure
was protected under another provision. See Linder, 122 M.S.P.R. 14, ¶ 11 n.2.
4 In his jurisdictional pleading, the appellant misidentifies the first date as March 25,
2019. IAF, Tab 11 at 12. This appears to be a typo. The record shows that the
appellant sent this follow-up to OSC by email on March 15, 2019. Id. at 103.8
competent evidence of the matters asserted therein. Truitt v. Department of the
Navy, 45 M.S.P.R. 344, 347 (1990). Further, such hearsay evidence “may be
accepted as preponderant evidence even without corroboration if, to a reasonable
mind, the circumstances are such as to lend it credence.” Kewley v. Department
of Health & Human Services , 153 F.3d 1357, 1364 (Fed. Cir. 1998). The
following factors affect the weight to be accorded to hearsay evidence: (1) the
availability of persons with firsthand knowledge to testify at the hearing;
(2) whether the statements of the out -of-court declarants were signed or in
affidavit form, and whether anyone witnessed the signing; (3) the agency’s
explanation for failing to obtain signed or sworn statements; (4) whether the
declarants were disinterested witnesses to the events, and whether the statements
were routinely made; (5) the consistency of the declarants’ accounts with other
information in the case, internal consistency, and their consistency with each
other; (6) whether corroboration for the statements can otherwise be found in the
agency record; (7) the absence of contradictory evidence; and (8) the credibility
of the declarants when they made the statement attributed to them. Borninkhof v.
Department of Justice , 5 M.S.P.R. 77, 87 (1981). Considering these factors, we
find the appellant’s declaration insufficient to establish exhaustion as to
disclosure 5.
Weighing in the appellant’s favor are the facts that the declaration is signed
and sworn, he has firsthand knowledge of the content of his OSC complaint, and
the record does not contain evidence that he tends to prevaricate. In addition,
because there has not been a hearing in this case, the appellant cannot be faulted
for not giving testimony on the matter. The appellant’s bias and general
credibility are neutral factors. See Thompson v. Department of the Army ,
122 M.S.P.R. 372, ¶ 25 (2015) (observing that most testimony that an appellant is
likely to give can be characterized as self-serving and finding that it is improper
to discredit it solely on that basis). However, weighing heavily against the
appellant is the fact that there is not even a hint of corroboration for his statement9
anywhere in the record. He clearly did not raise the issue (nor could he have) in
his initial November 8, 2018 filing. IAF, Tab 11 at 29-101. He might have raised
the issue on March 15, 2019, or February 22, 2021, when he forwarded some
additional information to OSC. However, the only documentary evidence of this
correspondence is the cover letters, and retaliation for his OSC whistleblower
complaint is not mentioned in either one. Id. at 13, 105-06. Nor is the matter
addressed in OSC’s correspondence to the appellant. Id. at 114-16. The
appellant is presumably in possession of the substance of his March 15, 2019, and
February 22, 2021 correspondence, and his failure to submit this material for the
record casts his claim into doubt. Furthermore, we are troubled by the vagueness
of the appellant’s declaration, which is just a blanket statement that all of the
allegations in his jurisdictional response were raised with OSC. Not only does
this appear to be incorrect, based on our review of some of the other claimed
disclosures and personnel actions, but even if the appellant did raise disclosure 5
with OSC, there is no way for us to tell whether he conveyed it in such a way so
as to satisfy the exhaustion requirement. For these reasons, we agree with the
administrative judge that the appellant failed to prove that he exhausted his
administrative remedies with respect to disclosure 5.
Disclosure 6
The appellant alleged that, on September 6, 2018, he notified his chain of
command about his second-level supervisor’s “inappropriate disclosures.” IAF,
Tab 11 at 12. Without reaching the issue of whether the appellant exhausted this
issue, the administrative judge found that his vague and conclusory
characterization of the disclosure was insufficient to constitute a nonfrivolous
allegation that it was protected. ID at 7.
On petition for review, the appellant identifies the pertinent information in
his initial appeal filing, which explains that the wrongdoing underlying
disclosure 6 was that his second-level supervisor was telling other individuals in10
the agency that the appellant had engaged in protected whistleblower activity.5
PFR File, Tab 1 at 18; IAF, Tab 1 at 17. This, at least, is more concrete and
specific than “inappropriate disclosures,” but we find that it still does not rise to
the level of a nonfrivolous allegation. We can infer that the appellant did not
appreciate that his second-level supervisor was discussing his whistleblowing
activities with others, but that by itself is not sufficient to create a nonfrivolous
allegation that the appellant reasonably believed his disclosure evidenced a
category of wrongdoing under 5 U.S.C. § 2302(b)(8)(A). We are not aware of
any law, rule, or regulation that generally prohibits the discussion of another
individual’s whistleblower activities.6 Furthermore, it is difficult to conceive of a
scenario in which the mere disclosure of a subordinate’s whistleblower status
could constitute gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or safety, as those
terms are defined in the case law. Without more information, we cannot find that
the appellant has made a nonfrivolous allegation in this regard.
5 The appellant faults the administrative judge for failing to comb the entire record to
figure out what disclosure 6 was about. PFR File, Tab 1 at 18. The Board has held that
an administrative judge is required to consider the entire record before dismissing an
IRA appeal for lack of jurisdiction. See Hoback v. Department of the Treasury ,
86 M.S.P.R. 425, ¶ 6 (2000). However, based on our review of the initial decision, it
appears to us that the administrative judge considered the record carefully but failed to
make a few connections due to the multiplicity of issues and imprecision of the
appellant’s pleadings. A party, especially a party represented by an attorney, bears the
responsibility of articulating his claim clearly according to the administrative judge’s
instructions, and a party “whose submissions lack clarity risks being found to have
failed to meet his burden of proof.” Luecht v. Department of the Navy , 87 M.S.P.R.
297, ¶ 8 (2000).
6 Under some circumstances, such discussions might be prohibited by the Privacy Act.
See generally 5 U.S.C. § 552a (2021). Furthermore, depending on the facts, someone
might reasonably believe that the discussion of his whistleblower activity violated the
Privacy Act, even in the absence of an actual violation. See Herman v. Department of
Justice, 115 M.S.P.R. 386, ¶ 10 (2011). However, the appellant in this case has not
explained why he believed that his second -level supervisor had such discussions. Nor
has he described the nature and circumstances of these discussions with sufficient
specificity for us to draw an inference that he reasonably believed the information
conveyed was protected.11
The appellant also argues that disclosure 6 is protected under 5 U.S.C.
§2302(b)(9)(A)(i). PFR File, Tab 1 at 21. This provision prohibits retaliation
against an individual for “the exercise of any appeal, complaint, or grievance
right granted by any law, rule, or regulation – with regard to remedying a
violation of [5 U.S.C. § 2302(b)(8)].” We find that the appellant has not made a
nonfrivolous allegation that his disclosure was protected under that provision
because he did not claim that his disclosure was made in the course of exercising
any such appeal, complaint, or grievance right.
In any event, having reviewed the appellant’s OSC complaint, we find no
indication that the appellant raised this issue with OSC at all.
Disclosure 7
Disclosure 7 was a May 23, 2019 disclosure of information to the agency’s
OIG that the appellant’s supervisors failed to assign him adequate work. IAF,
Tab 11 at 13, 109-12. Such communications to an OIG constitute protected
activity under 5 U.S.C. § 2302(b)(9)(C). However, the administrative judge
found that the appellant failed to exhaust this issue before OSC. ID at 4-5.
As with disclosure 5, the appellant argues on review that his sworn
declaration provides adequate evidence of exhaustion. PFR File, Tab 1 at 7; IAF,
Tab 11 at 25. However, for the same reasons explained in connection with
disclosure 5 above, we find that the appellant’s declaration is inadequate to prove
by preponderant evidence that he exhausted disclosure 7. Supra, 8-10. Without
some sort of corroborating evidence, the appellant’s vague and conclusory
declaration is insufficient to show that he raised the issue before OSC so as to
have satisfied the exhaustion requirement.
Disclosure 8
As the appellant described it in his jurisdictional pleading, disclosure 8 was
an “Analysis of VA Worklist Telepathology” – a report that he provided to
supervisory staff on May 15, 2019, and that included a statement regarding his12
second-level supervisor’s misuse of agency funds. IAF, Tab 11 at 14. In her
initial decision, the administrative judge did not reach the issue of whether the
appellant exhausted this issue. Instead, she found that the appellant failed to
make a nonfrivolous allegation that this disclosure was protected because he
summarily concluded that his belief was reasonable without explaining why. ID
at 7-8.
On petition for review, the appellant disputes the administrative judge’s
finding, arguing that his description of this disclosure was sufficiently specific as
set forth in his initial appeal filing. PFR File, Tab 1 at 19. However, the
appellant’s initial appeal filing contains no more information than his
jurisdictional pleading, which, as the administrative judge found, was inadequate.
IAF, Tab 1 at 17. For the first time on review, the appellant also submits a copy
of the Worklist Telepathology Report for the record.7 PFR File, Tab 1 at 28-31.
The report states, among other things, that the appellant’s second-level supervisor
“failed to coordinate VHA Grassroots telepathology innovation with Telehealth
personnel that were involved in telepathology.” PFR File, Tab 1 at 28. He
appears to have alleged that this lack of coordination resulted in the expenditure
of $2 million for a project that was never completed. Id. This evidence could
support a finding that the appellant made a nonfrivolous allegation that this
disclosure was protected.8
In any event, we find it unnecessary to reach this issue because the
appellant here presented no evidence, apart from his vague and conclusory
declaration, that he exhausted this issue with OSC. We, therefore, find that he
7 The agency submitted some brief excerpts from this report for the record below, but
these excerpts did not contain the relevant information. IAF, Tab 15 at 113-14.
8 The appellant also has submitted a number of emails for the first time with his petition
for review, but he has not explained the relevance of any of these emails to the
jurisdictional issue. PFR File, Tab 1 at 33-60; see Russo v. Veterans Administration ,
3 M.S.P.R. 345, 349 (1980) (holding that the Board will not grant a petition for review
based on new evidence absent a showing that it is of sufficient weight to warrant an
outcome different from that of the initial decision).13
has failed to prove that he met the exhaustion requirement with respect to
disclosure 8.
Disclosure 9
The appellant described disclosure 9 as having been made on December 23,
2020, to his supervisory chain and as concerning his first-level supervisor’s
“unbecoming conduct.” IAF, Tab 11 at 14. Without reaching the issue of
whether the appellant exhausted this issue with OSC, the administrative judge
found that he failed to make a nonfrivolous allegation that it was protected. ID
at 8. She acknowledged that the appellant characterized this alleged unbecoming
conduct as a misuse of agency funds, but she found that the appellant failed to
make a nonfrivolous allegation that he had a reasonable belief in the matter
because he failed to set forth the facts on which his belief was based. Id.
On petition for review, the appellant argues that “the full Analysis of VA
Worklist Telepathology as provided to OSC is quite clear about the funds misused
. . . and the manner they were misused.” PFR File, Tab 1 at 19. Therefore, for
the first time, the appellant has clarified that disclosure 9 concerned the same
subject matter as disclosure 8. However, that being the case, disclosure 9 suffers
from the same infirmities with respect to the Board’s jurisdiction; the appellant
has not provided adequate evidence of exhaustion.9 Supra, 13-14
Disclosure 10
The appellant stated in his jurisdictional response that, on December 31,
2020, he notified everyone in his chain of command that his second-level
supervisor was engaging in whistleblower retaliation against him. IAF, Tab 11
at 14-15. In her initial decision, the administrative judge did not reach the
exhaustion issue with respect to this disclosure but, instead, found that the
appellant failed to make a nonfrivolous allegation that disclosure 10 was
9 The appellant also argues that disclosure 9 was protected under 5 U.S.C. § 2302(b)(9)
(A)(i). PFR File, Tab 1 at 21. However, we find that this provision does not apply
because he has not alleged that he made this disclosure during the course of an appeal,
complaint, or grievance.14
protected because he did not explain the basis for his belief that he was the
subject of retaliation. ID at 8.
On petition for review, the appellant argues that disclosure 10 was
protected under 5 U.S.C. § 2302(b)(9)(A)(i). PFR File, Tab 1 at 21. However,
we find that this provision does not apply because this disclosure did not
constitute an appeal, complaint, or grievance granted by law, rule, or regulation.
Citing Keefer v. Department of Agriculture , 82 M.S.P.R. 687, 690-97 (1999), the
appellant argues that “[w]histleblowing allegations need not constitute factual
pleadings.” PFR File, Tab 1 at 20. We disagree. Keefer does not stand for this
proposition. Further, the Board has repeatedly explained that “[a] nonfrivolous
allegation is an allegation of fact.” E.g., Carney v. Department of Veterans
Affairs, 121 M.S.P.R. 446, ¶ 11 (2014).
The appellant also cites Johnston v. Merit Systems Protection Board ,
518 F.3d 905 (Fed. Cir. 2008), for the proposition that what the relevant
management officials knew about his disclosure and when they knew it is not a
jurisdictional question but a merits question. PFR File, Tab 1 at 20. The court in
Johnston made no such holding and, in fact, explicitly stated that, in order to
carry his jurisdictional burden, an appellant must make nonfrivolous allegations
that his disclosure was a contributing factor in the agency’s decision to take an
adverse personnel action against him. Johnston, 518 F.3d at 912. Nevertheless,
considering the record as a whole, including the appellant’s allegations that he
engaged in protected activity and his allegations that his second-level supervisor
thereafter took several personnel actions against him, we find that he has made a
nonfrivolous allegation that he reasonably believed that his second-level
supervisor was engaging in whistleblower reprisal. IAF, Tab 11 at 11-17.
Because whistleblower retaliation is a violation of law under 5 U.S.C. § 2302(b)
(8)-(9), we find that the appellant has made a nonfrivolous allegation that his
disclosure was protected under 5 U.S.C. § 2302(b)(8)(A)(i).15
Turning to the issue of exhaustion, however, we find that the appellant
failed to prove by preponderant evidence that he exhausted this matter with OSC.
Apart from his vague and conclusory declaration, there is no evidence that he
raised the issue with OSC at all.
For these reasons, we agree with the administrative judge that the only
disclosure properly before the Board in this appeal is disclosure 1, the appellant’s
January 28, 2018 disclosure to the agency’s OIG. ID at 8-9.
The appellant has made a nonfrivolous allegation that the agency took seven
personnel actions against him for which he exhausted his administrative remedies.
The definition of “personnel action” for the purposes of the WPA is broad,
but it is not unlimited. See Ruggieri v. Merit Systems Protection Board , 454 F.3d
1323, 1325 (Fed. Cir. 2006). The term is defined in 5 U.S.C. § 2302(a)(2)(A),
which contains a list of 12 categories of personnel action over which the Board
may have jurisdiction in the context of an IRA appeal.
In his jurisdictional pleading, the appellant identified 14 personnel actions
that he was raising in his appeal. The administrative judge found that for only
five of these actions did the appellant exhaust his administrative remedies and
make nonfrivolous allegations that they constituted “personnel actions” within the
meaning of 5 U.S.C. § 2302(a)(2)(A). ID at 9-12. These were an August 8, 2018
letter of reprimand (personnel action 1), an October 4, 2018 refusal to rescind that
letter of reprimand (personnel action 2), a November 30, 2018 performance
evaluation (personnel action 4), a June 17, 2019 reassignment (personnel action
5), and a December 2020 performance evaluation (personnel action 12).10 Id. For
the remainder of the claimed personnel actions, the administrative judge found
that either the appellant did not exhaust his administrative remedies, or they did
not meet the legal definition of “personnel action,” or both. ID at 10-12.
10 The administrative judge’s summary list of claimed actions for which the appellant
exhausted his administrative remedies and made nonfrivolous allegations that they
constituted “personnel actions” did not include personnel action 12. ID at 12. This
appears to have been an oversight.16
Among the nine claimed personnel actions that the administrative judge
excluded from further consideration on these bases, the appellant has elected to
contest her findings on only four of them. The administrative judge’s findings on
the remaining five (personnel actions 3, 6, 10, 13, and 14) appear correct on their
face, and we will not consider them any further. ID at 10-11; see 5 C.F.R.
§ 1201.115 (“The Board normally will consider only issues raised in a timely
filed petition or cross-petition for review.”). The agency has not challenged the
administrative judge’s findings as to personnel actions 1, 2, 4, 5, or 12. We find
no basis to disturb the administrative judge’s findings on these issues either.
Personnel Actions 7 and 9
The appellant identified personnel actions 7 and 9 as the agency’s failure to
provide him with a midterm performance review on May 1 and October 15, 2020,
respectively. IAF, Tab 11 at 16. In her initial decision, the administrative judge
found that, under King v. Department of Health & Human Services , 133 F.3d
1450, 1452-53 (Fed. Cir. 1998), midterm evaluations generally do not rise to the
level of personnel actions under 5 U.S.C. § 2302(a)(2)(A). ID at 11-12. She also
found that the appellant failed to exhaust his administrative remedies with respect
to these matters because he did not raise them before OSC. ID at 10.
On petition for review, the appellant argues that OSC’s closeout letter
specifically refers to the midterm reviews by stating that midpoint performance
reviews generally do not constitute personnel actions. PFR File, Tab 1 22; IAF,
Tab 11 at 144. We agree with the appellant, and we find preponderant evidence
that he exhausted these failures to provide midterm performance reviews with
OSC.
The appellant further argues that these midterm evaluations were not the
type of “informal, collaborative, non-consequential, and somewhat prospective”
“progress reviews” discussed in King but were, instead, more akin to annual
performance appraisals, “formal, judgmental, consequential, and retrospective” in
nature. PFR File, Tab 1 at 22; King, 133 F.3d at 1452. We find that the17
appellant’s conclusory assertion about the nature of the midterm performance
reviews at issue does not constitute a nonfrivolous allegation that they were
covered personnel actions. In the absence of some sort of explanation of what
“practical consequence” these midterm reviews would have had for him, we
cannot find that the appellant made a nonfrivolous allegation that they fall outside
the general rule set forth in King. We, therefore, find no basis to disturb the
administrative judge’s finding that the appellant failed to make a nonfrivolous
allegation that claimed personnel actions 7 and 9 meet the definition of
“personnel action” under 5 U.S.C. § 2302(a)(2)(A). ID at 10 n.5.
Personnel Actions 8 and 11
The appellant described personnel action 8 as the agency’s failure, on
October 16, 2020, to provide him with a performance evaluation for the previous
year. IAF, Tab 11 at 16. He described personnel action 11 as the agency’s
failure to notify him of a change in the date range of his performance period until
November 30, 2020 – the very last day of that new performance period. Id. In
her initial decision, the administrative judge found that the appellant failed to
exhaust his administrative remedies with respect to either of these matters. ID
at 10 & n.5.
On petition for review, the appellant argues that OSC’s closeout letter says
“[y]ou stated that you were not aware that the performance period had been
altered,” which the appellant characterizes as “a clear reference” to personnel
actions 8 and 11. PFR File, Tab 1 at 22; IAF, Tab 11 at 114. The administrative
judge noted this language in OSC’s closeout letter and found that there was no
indication that the appellant had raised this issue to OSC as a distinct personnel
action but, instead, seemed to have considered the claim as evidence in support of
the appellant’s claims of retaliation in connection with other personnel actions.
ID at 10-11 n.5. We disagree with the administrative judge’s reading of OSC’s
closeout letter, and we find it more likely than not that the appellant raised both18
personnel action 8 and personnel action 11 as distinct personnel actions for which
he was seeking corrective action. IAF, Tab 11 at 114.
We further find that the appellant has made a nonfrivolous allegation that
both of these constituted “personnel actions” within the meaning of 5 U.S.C.
§ 2302(a)(2)(A)(viii). As we understand it, these two matters are related to one
another; in October 2020, the appellant was expecting but did not receive a
performance evaluation covering the period from October 2019 through
September 2020, and it was only at the end of November 2020 that the agency
informed him that he would not be receiving such an evaluation but would instead
be evaluated based on a different period of time. IAF, Tab 11 at 16-17.
Assuming that these allegations are true, this was an agency decision that would
have practical consequences for the appellant’s annual performance evaluation.
For these reasons, we find that the appellant exhausted his administrative
remedies with respect to personnel actions 1, 2, 4, 5, 8, 11, and 12, and made
nonfrivolous allegations that these constituted “personnel actions” for purposes of
the WPA.
The appellant failed to make a nonfrivolous allegation that disclosure 1 was a
contributing factor in personnel actions 1, 2, 4, 5, 8, 11, or 12.
Once an appellant has made a nonfrivolous allegation that he made a
protected disclosure and was subjected to a covered personnel action, he must
also make a nonfrivolous allegation that the disclosure was a contributing factor
in that action. Schoenig v. Department of Justice , 120 M.S.P.R. 318, ¶ 13 (2013).
The appellant may meet his burden in a number of ways, the most common being
the knowledge/timing test of 5 U.S.C. § 1221(e)(1), under which contributing
factor can be established based on temporal proximity between the personnel
action and the relevant agency officials’ learning of the disclosure. Shibuya v.
Department of Agriculture , 119 M.S.P.R. 537, ¶ 22 (2013). Alternatively,
contributing factor may be established through other means, such as evidence
pertaining to the strength or weakness of the agency’s reasons for taking the19
personnel action, whether the whistleblowing was personally directed at the
proposing or deciding officials, and whether these individuals had a desire or
motive to retaliate against the appellant. Dorney v. Department of the Army ,
117 M.S.P.R. 480, ¶ 15 (2012). Any weight given to a whistleblowing disclosure,
either alone or in combination with other factors, can satisfy the contributing
factor standard. Powers v. Department of the Navy , 69 M.S.P.R. 150, 156 (1995).
In her initial decision, the administrative judge found that the personnel
actions that had not been excluded for consideration for other reasons were too
remote in time from the appellant’s January 28, 2013 disclosure to satisfy the
knowledge/timing test of 5 U.S.C. § 1221(e)(1). ID at 13. We agree. To satisfy
the timing component of the knowledge/timing test, a personnel action must
generally be taken within 1 or 2 years of when the relevant officials learned of the
disclosure. See Salinas v. Department of the Army , 94 M.S.P.R. 54, ¶ 10 (2003).
In this case, the earliest personnel action taken was the letter of reprimand issued
on August 8, 2018 (personnel action 1), which was more than 5 years after the
appellant’s January 28, 2013 alleged protected activity and more than 4 years
after the resulting OIG report of investigation.11 IAF, Tab 11 at 11. The
appellant disputes this finding on review, but his arguments are based on the
proximity of time between the personnel actions and his more recent disclosures,
which, as explained above, are not properly at issue in this appeal. PFR File,
Tab 1 at 23-24; IAF, Tab 11 at 20.
11 The appellant previously filed another IRA appeal, alleging retaliation for the
January 28, 2013 OIG disclosure. Freudenberg v. Department of Veterans Affairs ,
MSPB Docket No. AT-1221-18-0321-W-2. In his initial decision, the administrative
judge in that case found that agency management generally did not become aware that
the appellant had made this disclosure until February 2014, when the OIG report was
released. IAF, Tab 15 at 33. He also found that the Director for Connected Health did
not become aware of this fact until later, on June 16, 2015. Id. at 38. Even counting
from this latter date, the personnel actions at issue in this appeal still occurred well
outside the 2-year window generally considered sufficiently close in time to satisfy the
timing prong of the knowledge/timing test.20
The administrative judge also found that the appellant failed to make a
nonfrivolous allegation of contributing factor based on the considerations set
forth in Dorney, 117 M.S.P.R. 480. ID at 13-14. She found that, even assuming
that the agency’s reasons for its actions were weak, the appellant offered no
explanation of why either of the relevant agency officials,12 neither of whom were
implicated in the original disclosure or the resulting report of investigation,
would be motivated to retaliate against him for it 5 or more years later. Id.
On petition for review, the appellant asserts that there is “direct evidence of
retaliation” because his second-level supervisor disclosed the appellant’s
whistleblower status to his former and current supervisors. PFR File, Tab 1 at 23.
We do not find that this constitutes direct evidence of retaliation. Furthermore,
absent at least a minimum level of detail about the context and content of the
second-level supervisor’s alleged communications about the appellant’s
whistleblowing activity, it is difficult to see how this would constitute
circumstantial evidence of retaliation either. For the reasons explained in the
initial decision, we agree with the administrative judge that the appellant failed to
make a nonfrivolous allegation that disclosure 1 was a contributing factor in
personnel actions 1, 2, 4, 5, or 12. ID at 13-14. The administrative judge’s
reasoning applies equally to personnel actions 8 and 11, and we likewise find that
the appellant failed to make a nonfrivolous allegation that his disclosure was a
contributing factor in either of those personnel actions.
12 It appears that the two officials implicated in the relevant personnel actions were the
Director for Connected Health and the appellant’s second-level supervisor. IAF, Tab 11
at 15-16. It may also be reasonably inferred that the appellant’s first-level supervisor
was involved in these actions to some extent. If there were any other agency officials
involved in taking these actions, the appellant has not identified them. 21
NOTICE OF APPEAL RIGHTS13
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
13 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.22
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any23
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s24
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.14 The court of appeals must receive your 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
14 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 25
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.26 | Freudenberg_Rocky_AT-1221-21-0377-W-1_Final_Order.pdf | 2024-12-05 | ROCKY FREUDENBERG v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-21-0377-W-1, December 5, 2024 | AT-1221-21-0377-W-1 | NP |
323 | https://www.mspb.gov/decisions/nonprecedential/Freudenberg_Rocky_AT-1221-18-0321-W-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROCKY FREUDENBERG,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-18-0321-W-2
DATE: December 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephen Goldenzweig , Esquire, Houston, Texas, for the appellant.
Robert Vega , Esquire, and Lindsay J. Gower , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
*Member Kerner recused himself
and did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant established that his disclosure was a contributing factor in
an additional personnel action and to amend the administrative judge’s analysis of
the agency’s affirmative defense, we AFFIRM the initial decision.
BACKGROUND
On November 6, 2011, the agency appointed the appellant to the position of
GS-14 Management and Program Analyst in the Veterans Affairs Center for
Innovation (VACI) of the agency’s Veterans Health Administration (VHA), in
Washington, D.C., also referred to in the record as VHA Innovation.
Freudenberg v. Department of Veterans Affairs , MSPB Docket No. AT-1221-18-
0321-W-1, Initial Appeal File (IAF), Tab 46 at 10-12. In January 2013, the
appellant contacted the agency’s Office of Inspector General (OIG) concerning
another employee’s telecommuting practices. IAF, Tab 44 at 13-14; Hearing
Transcript, Volume 1 (HT 1) at 38-41 (testimony of the appellant). The appellant
disclosed that the agency had detailed a Veterans Benefit Administration (VBA)
employee to work with the VACI team and had paid to relocate him temporarily2
from Nashville, Tennessee to Washington, D.C., but this VBA employee did not
personally meet with the team during his stay and, instead, continued to work
remotely from his Washington, D.C. hotel room. HT 1 at 38-41 (testimony of the
appellant). Shortly after his OIG disclosure, on March 10, 2013, the appellant
began a 1-year leave of absence for medical reasons. IAF, Tab 48 at 33-34.
On February 24, 2014, shortly before the appellant’s scheduled return to
duty, the OIG completed its investigation into the appellant’s allegations and
issued a wide-ranging and highly critical report of investigation. Id. at 60-86.
The OIG concluded that the VACI Director and various VBA personnel had
committed prohibited personnel practices and otherwise failed to properly
discharge their duties in connection with the VBA detailee. Id. at 61-62. The
OIG further concluded that the VBA detailee had misused agency time and
resources, including more than $30,000 in travel expenses. Id. at 70-78. The
report included numerous recommendations for the agency’s Chief of Staff,
ranging from bolstering internal controls, to conducting refresher training on
various topics, to considering administrative action against several of the
employees involved. Id. at 88-89. Both the VACI Director and the VBA
Program Director resigned from the agency during the pendency of the
investigation. Id. at 61-62.
With his year of medical leave about to expire, on February 26, 2014, the
appellant requested reasonable accommodation in the form of full-time telework
from his home in Augusta, Georgia. IAF, Tab 45 at 100-02, 120; HT 1 at 42 -45
(testimony of the appellant). The appellant’s supervisor granted his request on an
interim basis, pending final approval. IAF, Tab 45 at 120. It does not appear that
either the appellant or his supervisors pursued the matter any further, and the
“interim” accommodation continued through March 11, 2015, whereupon the
appellant’s supervisor renewed his telework agreement for another year. Id.
at 107. 3
In April or May of 2015, after the appellant’s supervisor was detailed to
another position, the agency assigned a new individual to supervise the appellant.
HT 1 at 29-30 (testimony of the appellant). In September 2015, the appellant
underwent back surgery in San Francisco and requested accommodations in the
form of leave and telework from San Francisco during his recovery. IAF, Tab 47
at 46-47. The appellant’s supervisor approved his request for leave but did not
approve his request to telework from San Francisco. IAF, Tab 47 at 86; Hearing
Transcript, Volume 2 (HT 2) at 33 (testimony of the appellant’s supervisor). On
November 5, 2015, the appellant’s supervisor instructed him to return to duty in
Washington, D.C. upon the expiration of his leave. IAF, Tab 49 at 27. The
appellant remained on leave until April 5, 2016, when he returned to duty in
Washington, D.C. as directed. IAF, Tab 47 at 63; Freudenberg v. Department of
Veterans Affairs , MSPB Docket No. AT-1221-18-0321-W-2, Appeal File (W-2
AF), Tab 9 at 115-18; HT 2 at 18 (testimony of the appellant’s supervisor). The
appellant continued to work in Washington, D.C. until approximately August 9,
2017, when the agency approved his request to resume fulltime telework from
Georgia. IAF, Tab 47 at 59-60.
Meanwhile, on February 8, 2017, the agency had notified the appellant and
several other employees of an upcoming opportunity to work as Acting Director
of VHA Innovations. Id. at 58. The appellant applied for the role, but the
Executive Director for Connected Health and her Co-Director selected another
individual instead. IAF, Tab 45 at 83, Tab 46 at 39; W-2 AF, Tab 11 at 5-6; HT 1
at 215-17 (testimony of the Executive Director).
On April 11, 2016, the appellant filed a complaint with the Office of
Special Counsel (OSC) and a follow-up letter on March 23, 2017, alleging that
the agency took various personnel actions against him in retaliation for his
January 2013 OIG disclosure. IAF, Tab 5 at 31-49, 49-64. OSC closed the
appellant’s file without taking corrective action, and the appellant filed the
instant IRA appeal. IAF, Tab 1.4
After a hearing, the administrative judge issued an initial decision denying
the appellant’s request for corrective action. W-2 AF, Tab 26, Initial Decision
(ID). He found that the appellant failed to show that some of the claimed
retaliatory actions amounted to “personnel actions” cognizable in an IRA appeal,
and that, as to those personnel actions that were cognizable, the appellant failed
to show that his protected activity was a contributing factor. ID at 10-18. The
administrative judge found that the appellant proved his case in chief with respect
to two personnel actions – the revocation of his telework arrangement and his
nonselection for Acting Director – but that the agency proved by clear and
convincing evidence that it would have taken these same actions notwithstanding
the appellant’s protected disclosure. ID at 19-25.
The appellant has filed a petition for review, disputing the administrative
judge’s analysis of all his claims, but focusing mainly on the revocation of his
telework arrangement in November 2015. Petition for Review (PFR) File, Tab 1.
The agency has filed a response. PFR File, Tab 3.
ANALYSIS
In the merits phase of an IRA appeal, the appellant has the burden of
proving by preponderant evidence that he engaged in protected activity described
under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), and that this activity
was a contributing factor in a personnel action as described under 5 U.S.C.
§ 2302(a)(2)(A). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016). If the appellant makes this showing, the agency is given an opportunity
to prove, by clear and convincing evidence, that it would have taken the same
personnel action in the absence of the protected activity. 5 U.S.C. § 1221(e)
(1)-(2); Salerno, 123 M.S.P.R. 230, ¶ 5.
In this case, the administrative judge found that the appellant’s
January 2013 disclosure to the OIG was protected under both 5 U.S.C. § 2302(b)5
(8)(A) and 5 U.S.C. § 2302(b)(9)(C).2 ID at 9-10 & n.9. Neither party disputes
this finding, and for the reasons explained in the initial decision, we agree with
the administrative judge that the appellant’s disclosure to the OIG was protected
under 5 U.S.C. § 2302(b)(9)(C).3 ID at 10 n.9.
The appellant’s protected disclosure was a contributing factor in three personnel
actions.
Turning to the other elements of the appellant’s case, he alleged that the
agency took nine personnel actions against him in retaliation for his protected
activity. IAF, Tab 5 at 13-28. The administrative judge found jurisdiction to
consider seven of these alleged personnel actions. IAF, Tab 28 at 3-5. The
appellant does not contest this ruling on review, and we discern no reason to
disturb it. The administrative judge identified the seven alleged personnel actions
as follows: (1) after the appellant’s year-long absence in 2013 and 2014, the
VACI Director prevented him from returning to his proper position, assigned him
ad hoc duties, and instructed him not to contact the individual who had filled in
for him during his absence; (2) the agency decreased his job functions; (3) the
agency excluded him from certain meetings; (4) the agency revoked his telework
agreement; (5) the agency denied his request for telework as a reasonable
accommodation; (6) the agency failed to provide him with an adequate
workspace; and (7) the agency did not to select him to be Acting Director.
W-2 AF, Tab 12 at 3. The administrative judge found that the appellant proved
2 The appellant originally claimed four additional protected disclosures, but the
administrative judge found that the Board lacks jurisdiction over these additional
disclosures in the context of the instant appeal because the appellant variously failed to
show that he raised them with OSC or made a nonfrivolous allegation that the
disclosures were protected. IAF, Tab 5 at 8-13, Tab 28 at 1-3. The appellant has not
contested this ruling, and we discern no basis to disturb it.
3 To the extent that the administrative judge analyzed the content of the appellant’s OIG
disclosure in determining whether it was protected, we vacate this finding as
unnecessary. ID at 9-10. Under the broadly worded provision of 5 U.S.C. § 2302(b)(9)
(C), any disclosure to an OIG is protected regardless of its content as long as such a
disclosure is made in accordance with applicable provisions of law. Fisher v.
Department of the Interior , 2023 MSPB 11, ¶ 8. 6
by preponderant evidence that actions 4 and 7 (the telework revocation and the
nonselection) constituted “personnel actions” within the meaning of 5 U.S.C.
§ 2302(a)(2)(A) and his OIG disclosure was a contributing factor in those actions.
ID at 15-16, 18-19. However, he found that for actions 1-3 and 5-6, the appellant
either failed to prove that these constituted “personnel actions” or failed to
establish contributing factor, or both. ID at 11-18. The appellant contests these
findings on review, and we will address each claimed personnel action in turn.
PFR File, Tab 1 at 25-28.
To begin with, we observe that, between claimed personnel actions 1-3 and
5-6, none of them are explicitly identified as such under 5 U.S.C. § 2302(a)(2)
(A). Rather, as the administrative judge correctly found, they would fall, if
anywhere, under the category of “significant change in duties, responsibilities, or
working conditions.” ID at 11-18; 5 U.S.C. § 2302(a)(2)(A)(xii). To amount to a
“significant change” under section 2302(a)(2)(A)(xii), an agency action must
have a significant impact on the overall nature or quality of an employee’s
working conditions, responsibilities, or duties. Skarada v. Department of
Veterans Affairs , 2022 MSPB 17, ¶ 15. In determining whether an appellant has
suffered a “significant change” in his duties, responsibilities, or working
conditions, the Board must consider the alleged agency actions both collectively
and individually. Id. ¶ 6. With that standard in mind, we address the specifics of
each of these actions.
Regarding personnel action 1, the administrative judge found that VACI’s
mission focus changed significantly during the appellant’s year-long absence, that
many of the appellant’s duties were eliminated or automated during that time, and
that the appellant experienced a corresponding significant change in duties within
the scope of 5 U.S.C. § 2302(a)(2)(A)(xii) upon his return. ID at 11. However,
the administrative judge found that the appellant failed to show that his OIG
disclosure was a contributing factor in that change because the VACI Director
changed the appellant’s duties before the OIG report was released on7
February 24, 2014, and there was no evidence that the VACI Director became
aware of the appellant’s disclosure until after that date. ID at 11-12. The
administrative judge further found that, even assuming the VACI Director
thereafter instructed the appellant not to contact his “replacement,” this
instruction alone did not constitute a “significant” change in duties,
responsibilities, or working conditions. ID at 12.
On petition for review, the appellant argues that the administrative judge
erred in his contributing factor analysis, and he cites evidence in support of his
argument that the VACI Director was aware of his whistleblowing activity. PFR
File, Tab 1 at 25. However, all of the evidence that the appellant cites pertains to
the period postdating the OIG report’s February 24, 2014 release. Id. 6-8, 11-12,
25; HT 1 at 219 (testimony of the Executive Director). Therefore, the appellant
has provided no basis to disturb the administrative judge’s finding that he failed
to establish contributing factor with respect to personnel action 1 because the
VACI Director took the action prior to learning of his disclosure. See Martin v.
Department of the Air Force , 73 M.S.P.R. 574, 580-81 (1997).
For personnel action 2, the administrative judge found that the appellant
failed to show that the alleged decrease in his job functions constituted a
significant change in duties under 5 U.S.C. § 2302(a)(2)(A)(xii). Specifically, he
found that the appellant failed to provide evidence of what his duties were prior
to the release of the OIG report, and that without such evidence, it was impossible
to determine whether and to what extent the appellant’s duties changed after the
report was released. ID at 13-14.
On petition for review, the appellant argues that personnel action 1 and
personnel action 2 involve “the same set of duties,” and thus, the administrative
judge erred in finding a significant change in duties with respect to the first of
these claims but not the second. Id.; PFR File, Tab 1 at 26. However, if both of
these alleged personnel actions involve the same change in duties, then personnel
action 2 is part and parcel of personnel action 1, and it suffers from the same8
infirmity with respect to contributing factor. IAF, Tab 5 at 13-14, 17-18;
supra 7-8. To the extent that the appellant is arguing that the administrative
judge erred in finding that he failed to meet his burden of proof, we disagree.
Preponderant evidence is “[t]he degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that
a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q). The
appellant testified as to the nature of his diminished duties. HT 1 at 70-72
(testimony of the appellant). He gave examples of preparing a spreadsheet and
writing two articles. Id. He also described the level of these duties as “roughly
GS-9 middle duties.” Id. at 70. However, because he failed to explain how these
assignments differed from or were less than his prior duties, we agree with the
administrative judge that he did not present evidence that, more likely than not,
he suffered a significant change in duties. ID at 12-13.
The administrative judge’s analysis of personnel action 3 was similar to his
analysis of personnel action 2. Specifically, he found that the appellant failed to
provide evidence of the meetings he attended prior to his disclosure becoming
known, and without this evidence, it could not be determined whether his
exclusion from certain meetings after that date represented a significant change in
his duties, responsibilities, or working conditions.4 ID at 14-15. On petition for
review, the appellant disputes this finding, arguing that he “offered significant,
specific testimony about particular meetings that other VACI employees were
invited to that he was excluded from, including emails describing those
meetings.” PFR File, Tab 1 at 27. The appellant is correct that he testified to
being excluded from VACI meetings. HT 1 at 73, 77, 91-92 (testimony of the
appellant). However, as the administrative judge correctly found, none of this
4 Because a “significant change in duties, responsibilities, or working conditions” may
be cumulative in nature, personnel actions 1, 2, and 3 could arguably be viewed as parts
of a single, overarching personnel action. Skarada, 2022 MSPB 17, ¶ 16. However,
this would not change the outcome of the analysis because the appellant has not shown
that he suffered any change, significant or not, with respect to personnel actions 2 and
3. 9
testimony speaks to whether the appellant attended similar meetings prior to the
release of the OIG report. ID at 14-15. Because the appellant has failed to
establish this baseline with sufficient clarity, we agree with the administrative
judge that the Board cannot engage in a meaningful analysis of whether and to
what extent the appellant’s meeting attendance changed. Id.
Personnel action 4 involves the November 5, 2015 revocation of the
appellant’s telework arrangement. The administrative judge found that this
constituted a significant change in the appellant’s working conditions and that the
appellant’s disclosure was a contributing factor in this personnel action.
ID at 4-5. Neither party disputes these findings, and for the reasons explained in
the initial decision, we agree with the administrative judge’s analysis. Id.
Personnel action 5 pertains to the agency’s denial of the appellant’s request
for reasonable accommodation, specifically its denial of the appellant’s request to
have his telework reinstated in April 2016. IAF, Tab 5 at 22. The administrative
judge found that this constituted a personnel action but that the appellant failed to
prove contributing factor. ID at 16-17. On petition for review, the appellant
concedes that the knowledge/timing test of 5 U.S.C. § 1221(e)(1) is not satisfied
because personnel action 5 occurred more than 2 years after the relevant officials
became aware of his OIG disclosure, but he argues that he proved contributing
factor by alternative means. PFR File, Tab 1 at 28.
We agree with the appellant that the record supports a finding of
contributing factor for this personnel action, not necessarily on the basis of strong
retaliatory motive, but rather, because personnel action 5 is essentially a
continuation of personnel action 4. The Board has found that the
knowledge/timing test may be satisfied when a personnel action that occurred
more than 2 years after the protected disclosure was “part of a continuum of
related personnel actions.” Agoranos v. Department of Justice , 119 M.S.P.R.
498, ¶¶ 22-23 (2013) (quoting Jones v. Department of the Interior , 74 M.S.P.R.
666, 679 (1997)). 10
Regarding personnel action 6, the administrative judge found that, after the
appellant’s telework was discontinued and he reported to duty in Washington,
D.C., the agency failed to provide him with a functional workspace or a chair that
was compatible with his disabilities. ID at 18. Nevertheless, the administrative
judge found that the lack of this space and equipment did not rise to the level of a
personnel action because the agency remedied the situation promptly. Id. On
petition for review, the appellant argues that the administrative judge “essentially
[found] the violation was de minimis and therefore not a sufficient personnel
action,” and that this “speaks to damages more than to the existence of the claim
and even if the period at issue was short the act still occurred.” PFR File, Tab 1
at 28. We disagree. A de minimis change in working conditions is, by definition,
not significant. The appellant has demonstrated no error in the administrative
judge’s analysis.
Regarding personnel action 7, the administrative judge found that the
appellant’s March 2017 nonselection for Acting Director was a personnel action
and that the appellant established contributing factor via the knowledge/timing
test because the nonselection occurred within 2 years of the Executive Director
becoming aware of his OIG disclosure. ID at 18-19. The agency does not dispute
this finding, and we agree with the administrative judge’s analysis. See 5 U.S.C.
§ 2302(a)(2)(A)(ii), (iv) (including promotions and details under the definition of
“personnel action”); Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 21
(2015) (stating that a personnel action taken within approximately 1 to 2 years of
an appellant’s disclosure satisfies the knowledge/timing test).
The agency proved by clear and convincing evidence that it would have taken
personnel actions 4, 5, and 7 notwithstanding the appellant’s protected disclosure.
Even if an appellant establishes that he made a protected disclosure that
was a contributing factor in a personnel action, the Board will not order
corrective action if the agency shows by clear and convincing evidence that it
would have taken the same action even in the absence of the protected disclosure.11
5 U.S.C. § 1221(e)(2); Jensen v. Department of Agriculture , 104 M.S.P.R. 379,
¶ 6 (2007). In determining whether an agency has met its burden, the Board will
consider all of the relevant factors, including the following: (1) the strength of
the agency’s evidence in support of its action; (2) the existence and strength of
any motive to retaliate on the part of the agency officials who were involved in
the decision; and (3) any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999);
Parikh v. Department of Veterans Affairs , 116 M.S.P.R. 197, ¶ 36 (2011). The
Board does not view these factors as discrete elements, each of which the agency
must prove by clear and convincing evidence, but rather, the Board will weigh the
factors together to determine whether the evidence is clear and convincing as a
whole. Phillips v. Department of Transportation , 113 M.S.P.R. 73, ¶ 11 (2010).
“Evidence only clearly and convincingly supports a conclusion when it does so in
the aggregate considering all the pertinent evidence in the record, and despite the
evidence that fairly detracts from that conclusion.” Whitmore v. Department of
Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).
The November 2015 revocation of the appellant’s telework
arrangement
Regarding personnel action 4, the November 2015 revocation of the
appellant’s telework arrangement, the administrative judge found that the agency
proved by clear and convincing evidence that the appellant’s supervisor would
have taken the same action notwithstanding the protected disclosure. ID at 19-24.
Considering the strength of the agency’s evidence in support of its action, the
administrative judge found that the appellant’s official duty station was in
Washington, D.C., and not in Georgia. ID at 20. He also found that the telework
arrangement that the appellant’s supervisor revoked was not a permanent
reasonable accommodation granted under the Rehabilitation Act. ID at 20-21.
He further found that the appellant’s supervisor granted him a significant amount12
of leave without pay (LWOP) before requiring him to return to duty in
Washington, D.C. and that he took this action only after consulting with human
resources officials and the agency’s Office of General Counsel. ID at 21.
The administrative judge found little evidence of retaliatory motive by the
appellant’s supervisor because the OIG report did not even mention this
supervisor, and there was no indication that anyone whom the report did mention
had any influence over the decision. ID at 22. The administrative judge further
found that, although there was some evidence that the appellant’s supervisor
viewed him as a “troublemaker,” there was nothing to connect this attitude to the
appellant’s whistleblowing activity, and in fact, the tension between the appellant
and his supervisor appears to have been connected to matters that occurred after
the appellant’s return to Washington, D.C. ID at 22-24. Regarding the agency’s
treatment of similarly situated non -whistleblowers, the administrative judge
found that, although many VHA Innovations employees were permitted to
telework, there was no evidence that any of these employees had duties similar to
the appellant’s. ID at 24.
On petition for review, the appellant argues that the agency had no
legitimate business reason for requiring him to return to duty in Washington, D.C.
In particular, the appellant’s supervisor testified that he required him to return to
Washington, D.C. because the appellant’s position description denoted that
location as his duty station, but this explanation fell apart upon cross
examination, when it was shown that neither the position description nor any
other relevant evidence indicated a Washington, D.C. duty station for the
appellant. PFR File, Tab 1 at 17-19, 21-24. Nor was there any explanation of the
utility of having the appellant physically present in Washington, D.C. Id.
at 23-24. The appellant further argues that there is ample testimony
demonstrating his supervisor’s retaliatory motive, id. at 18-19, 24, and that he
was treated less favorably than other VHA Innovations employees who were
allowed to telework, id. at 24.13
We have considered the appellant’s arguments, but we are not persuaded.
As to the strength of the agency’s evidence in support of its action, we agree with
the appellant that there are some gaps in the evidence that, considered in
isolation, could give the appearance of pretext. PFR File, Tab 1 at 20-24.
Specifically, the appellant’s supervisor testified that he discontinued the
appellant’s telework arrangement and required him to report to duty in
Washington, D.C. because that was the duty station identified in the position
description. IAF, Tab 49 at 25; HT 2 at 10 (testimony of the appellant’s
supervisor). However, on cross -examination, it came out that the record
contained no document matching the supervisor’s testimony. HT 2 at 38-46
(testimony of the appellant’s supervisor). In addition, shortly before the
appellant’s telework was discontinued, the Local Reasonable Accommodation
Coordinator (LRAC) handling the matter informed the appellant that he could not
locate any accommodations on file for the appellant, despite the fact that the
appellant had been working under a telework accommodation from February 2014
until November 2015, when his new supervisor discontinued it. IAF, Tab 45
at 120, Tab 47 at 83.
Nevertheless, the administrative judge credited the supervisor’s testimony
that there was, in fact, a position description for the appellant that specified his
duty station as the agency’s Central Office in Washington, D.C. ID at 5; HT 2
at 10, 40, 43 (testimony of the appellant’s supervisor). Although the absence of
this document from the record would tend to undermine the supervisor’s
testimony that the document actually existed, the supervisor’s testimony is
consistent with the fact that the appellant actually worked at the Central Office
from the date of his appointment until early 2014, when he began teleworking
from Georgia. IAF, Tab 46 at 12; HT 1 at 18-19 (testimony of the appellant);
see Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987) (stating that,
to resolve credibility issues, an administrative judge should consider such factors
as the contradiction of the witness’s version of events by other evidence or its14
consistency with other evidence). Considering the record as a whole, we do not
find a sufficiently sound basis to overturn the administrative judge’s finding on
this issue. See Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir.
2002) (holding that the Board may overturn an administrative judge’s implicitly
demeanor-based credibility determinations only when it has “sufficiently sound”
reasons for doing so).
Furthermore, although we agree with the appellant that his telework
arrangement was an accommodation afforded to him under the Rehabilitation Act,
PFR File, Tab 1 at 20-21; IAF, Tab 45 at 100-02, 120, we also agree with the
administrative judge that it was an interim accommodation afforded to him prior
to completion of the interactive process, ID at 21; IAF, Tab 45 at 120; HT 2
at 146-47 (testimony of the LRAC). The record does not reveal why neither the
appellant nor his supervisor at the time took any further action on the reasonable
accommodation request, but the most likely explanation is that they were both
satisfied with the telework arrangement and preferred to continue this “interim”
accommodation indefinitely rather than go through the trouble of finalizing it
with a reasonable accommodation coordinator. The consequence of this
arrangement was that, when the appellant began reporting to a new supervisor, he
had no record on file of an official reasonable accommodation having been
granted. HT 2 at 146 (testimony of the LRAC).
In any event, the revocation of the appellant’s telework coincided with his
6 months of leave for back surgery in San Francisco, and these two matters
appear to be related. Specifically, just prior to his surgery, the appellant
requested both LWOP and permission to telework from San Francisco while
undergoing post-surgical care. IAF, Tab 47 at 56. The appellant’s supervisor
granted the LWOP request, initially through December 21, 2015, but he deemed
the appellant’s telework request to be a reasonable accommodation matter, which
he referred to the LRAC. IAF, Tab 47 at 45; W-2 AF, Tab 9 at 118. 15
The LRAC requested certain information from the appellant, but instead of
providing this information, the appellant responded with a series of questions to
insinuate that his request should be granted based on his preexisting arrangement
of teleworking from Georgia. IAF, Tab 47 at 43. The LRAC then advised the
appellant that his previous accommodation may not have been fully processed,
and in order to document the accommodation and make it official, the appellant
would need to complete the appropriate form and engage in the interactive
process with his supervisor. Id. at 83-84. The appellant replied with a
nonresponsive email accusing his supervisor of whistleblower retaliation. Id.
at 82-83. Subsequently, the appellant informed the LRAC that he would put his
accommodation request on hold pending the outcome of his surgery and
rehabilitation. Id. at 81. On October 2, 2015, the LRAC closed out the
appellant’s request and advised him, “Once you have a better idea regarding your
condition, you may contact me to discuss further and I will review your request
and updated medical documentation.” Id. The actions of the agency here were
consistent with its obligation to provide reasonable accommodation to disabled
employees. See Rosario-Fabregas v. Department of the Army , 122 M.S.P.R. 468,
¶ 13 & n.5 (2015) (discussing an agency’s responsibility to provide such
accommodations), aff’d, 833 F.3d 1342 (Fed. Cir. 2016). An employee’s failure
to engage in the interactive process by, for example, failing to provide necessary
documentation may prevent an agency from identifying a reasonable
accommodation. Id., ¶ 18.
With this cessation of the interactive process, the appellant’s supervisor
decided against granting the telework request because the post-surgical care
appeared to him a temporary condition that was better addressed through ordinary
medical leave rather than through telework. HT 2 at 33 (testimony of the
appellant’s supervisor).
Despite approving the appellant’s lengthy LWOP (and subsequently
granting multiple extensions), the appellant’s supervisor testified that he desired16
to return the appellant to duty, and he consulted multiple agency officials to come
up with a plan. These included labor relations staff, the Director for Workforce
Planning & Employee Administration, and a human resources attorney. IAF,
Tab 49 at 27; HT 2 at 10, 56-57 (testimony of the appellant’s supervisor). In
addition, the appellant’s supervisor testified, consistent with the appellant’s
position description, that the appellant’s physical presence at the Central Office
was desirable because maintaining personal contacts with individuals located
there was an important part of his job. IAF, Tab 44 at 59, 63-64;. HT 2 at 10, 56
(testimony of the appellant’s supervisor). Given the nature of the appellant’s job
duties, the location of his duty station at the agency’s Central Office, the
appellant’s supervisor’s consultation with other agency officials, and the
supervisor’s lack of awareness of the appellant’s previous accommodation, we
agree with the administrative judge that the agency provided strong evidence in
support of its decision to discontinue the appellant’s telework. ID at 20-21.
Regarding retaliatory motive, we observe as an initial matter that the
Board’s analysis of this Carr factor usually centers on the nature, content, and
ramifications of the disclosure itself, both as to the official who took the
personnel action and as to any other officials who may have influenced the
decision. See, e.g., Whitmore, 680 F.3d at 1370-71; Phillips, 113 M.S.P.R. 73,
¶¶ 22-29. In this case, the administrative judge found that the OIG report did not
contain any negative findings about the appellant’s supervisor, or even mention
his name, and that there was no evidence that the decision to cancel the
appellant’s telework was influenced by anyone actually named in the OIG report.5
ID at 22. He, therefore, found “no meaningful evidence” of retaliatory motive.
Id.
The appellant does not dispute the administrative judge’s finding that the
nature, content, and ramifications of his disclosure were inherently unlikely to
5 This supervisor worked in another section of VHA Innovations at the time of the
disclosure and OIG report and only entered the appellant’s supervisory chain some time
in 2015. IAF, Tab 44 at 50, 52; HT 2 at 5-7 (testimony of the appellant’s supervisor).17
motivate his supervisor to retaliate. Instead, he comes at the issue another way.
Citing evidence of animus and friction between him and his supervisor, he would
have the Board infer that these were a result of his disclosure and, in turn, find
strong retaliatory motive. PFR File, Tab 1 at 18-19. Among other things, the
appellant argues that his supervisor demonstrated retaliatory animus when he
“bragged” about cancelling the appellant’s telework and when he failed to correct
his own supervisor’s profane outburst about the appellant. Id. The administrative
judge, however, considered this evidence and declined to draw any inference of
retaliatory motive. ID at 22-24.
We modify the initial decision to find some indication of retaliatory motive
on the part of the appellant’s supervisor. A supervisor who represents the
“general institutional interests of the agency” may have some motive to retaliate
for a disclosure that casts the agency as a whole in a negative light, even if that
disclosure does not implicate him directly. Chambers v. Department of the
Interior, 116 M.S.P.R. 17, ¶ 69 (2011). Here, the administrative judge overstated
the case by finding that there was “no meaningful evidence” of retaliatory motive.
ID at 22. Rather, the administrative judge should have expressly considered the
possibility of a professional retaliatory motive. See Robinson v. Department of
Veterans Affairs , 923 F.3d 1004, 1019 (Fed. Cir. 2019) (finding that, while there
may not be a personal motive, the administrative judge erred by failing to
consider whether the deciding official had a “professional retaliatory motive”
against the appellant because his disclosures “implicated the capabilities,
performance, and veracity of [agency] managers and employees, and implied that
the [agency] deceived [a] Senate Committee.”). We find evidence of a slight
professional retaliatory motive on the part of the appellant’s supervisor because
the appellant’s disclosures cast the agency as a whole in a negative light.
However, there is no evidence that any such retaliatory motive was strong. As
the administrative judge correctly found, there is scant evidence to tie the alleged
tension between the appellant and his supervisor to the appellant’s disclosures,18
and it can be largely attributed to events that occurred after the appellant’s
telework arrangement was already cancelled. ID at 22.
Regarding the agency’s treatment of similarly situated non-whistleblowers,
the administrative judge found, and the appellant does not dispute, that the only
VHA Innovations employee with similar duties and responsibilities was the
individual whom the agency selected to fill in for the appellant during his
year-long absence beginning in February 2013. ID at 24. The administrative
judge found no indication that this employee was permitted to telework. Id. The
appellant disputes this finding and asserts that his fill-in replacement was
permitted to telework. PFR File, Tab 1 at 24. In support, he cites his own
testimony that he “never saw” this individual in the office. Id.; HT 1 at 53
(testimony of the appellant). However, it appears that the appellant was working
in a large building and on a different floor than this other individual, and we
decline to infer from the appellant’s vague testimony that the reason he “never
saw” this coworker was because he was telecommuting. The appellant has
provided no basis to disturb the administrative judge’s finding that the agency’s
treatment of similarly situated non-whistleblowers is not a significant factor in
the analysis. ID at 24.
Considering the totality of the circumstances, including the supervisor’s
reasons for returning the appellant to Washington, D.C., his slight retaliatory
motive, and the relatively neutral comparator evidence, we agree with the
administrative judge that the agency proved by clear and convincing evidence that
it would have taken the same personnel action notwithstanding the appellant’s
OIG disclosure. ID at 20-22. In this regard, we also observe that, around this
same time, the appellant’s supervisor granted him generous amounts of LWOP
and assisted the appellant by promptly referring his telework request to the
LRAC. IAF, Tab 47 at 86-88, 101; W-2 AF, Tab 9 at 116-18. These are not
actions characteristic of an official who is attempting to retaliate against his
subordinate. 19
The agency’s denial of the appellant’s reasonable accommodation
request
As set forth above, personnel action 5 concerns the agency’s denial of the
appellant’s reasonable accommodation request in April 2016. Supra 10. Because
he found that the appellant failed to establish that his protected disclosure was a
contributing factor in this personnel action, the administrative judge did not
determine whether the agency proved by clear and convincing evidence that it
would have taken the same action notwithstanding the disclosure. See Scoggins
v. Department of the Army , 123 M.S.P.R. 592, ¶ 28 (2016). Normally, in cases
like this one when there was a hearing at which the administrative judge had the
opportunity to observe the witnesses’ demeanor, the Board would remand the
appeal for the administrative judge to conduct this analysis in the first instance.
See, e.g., Mastrullo, 123 M.S.P.R. 110, ¶ 22; Gonzalez v. Department of
Transportation, 109 M.S.P.R. 250, ¶ 22 (2008). However, we find that a remand
is unnecessary in this case because personnel action 5 is intertwined with
personnel action 4, and therefore, the record on this issue is sufficiently
developed for us to make a finding on review.
After the November 5, 2015 return-to-duty letter, the appellant did not raise
the telework accommodation issue with the agency again for several months.
HT 1 at 85-87 (testimony of the appellant). Then, on February 24, 2016, with his
approved LWOP about to expire the following week, the appellant emailed the
LRAC, his supervisor, and several other agency officials, reiterating that he had
been previously accommodated through telework from Georgia. IAF, Tab 47
at 94. The LRAC responded, again informing the appellant that he could not find
any approved accommodations on file for him, asking for a copy of any approved
accommodations that might exist, and furnishing the appellant with several forms
to complete to get the interactive process started again. IAF, Tab 46 at 92-93.
The appellant responded, asserting that he was seeking “continuity of care” for
his surgery and that he would not be having his medical provider complete the20
required form because there were no duties that he could not perform. Id. at 92.
The LRAC then closed the appellant’s case on the basis that he was able to
perform all of his job functions and submitted no evidence of disability. Id. at 91.
However, before the appellant’s return-to-duty date arrived, his supervisor
extended his LWOP for another month, until April 5, 2016. W-2 AF, Tab 9
at 116.
On April 1, 2015, the appellant again emailed his supervisor, requesting to
telework from Georgia or, in the alternative, to be granted additional LWOP.
IAF, Tab 47 at 74. The appellant’s supervisor denied these requests but again
referred the appellant’s accommodations request to the LRAC. Id. at 71, 73. The
appellant again asserted, multiple times and in multiple emails, that he had been
granted a telework accommodation in 2014 but to no avail. On April 5, 2016, the
appellant returned to duty at the Central Office in Washington, D.C., as
scheduled. Id. at 69-72; Tr. 2 at 18 (testimony of the appellant’s supervisor).
The appellant pursued the matter again between May and July 2016. On
May 5, 2016, he contacted the Executive Director for Connected Health, who
offered to help him expedite his accommodation request if he would send her a
copy of it. IAF, Tab 44 at 91-95. On June 28, 2016, the appellant responded by
sending her a copy of the February 26, 2014 form on which his former supervisor
had approved his interim telework accommodation. IAF, Tab 47 at 50. This form
was forwarded to the LRAC, who advised management that it was insufficient to
grant the appellant’s request, that the appellant needed to supply medical
documentation as well, and that the appellant should contact him with any
questions. Id. at 49-50. On July 11, 2016, the LRAC forwarded the appellant
two forms to complete and return – a VA0857A Written Confirmation of Request
for Accommodation and a VA0857E Request for Medical Documentation. IAF,
Tab 46 at 72. On July 20, 2016, the appellant completed and returned the
VA0857A Written Confirmation of Request for Accommodation, explaining that
he was requesting telework because he had arthritis in his back and knees, and21
commuting to and from the Central Office was causing him severe pain. Id.
at 72, 74. On July 21, 2016, and again on July 26, 2016, the LRAC asked the
appellant when he could expect to receive the completed VA0857E Request for
Medical Documentation. W-2 AF, Tab 9 at 47. The appellant responded that he
would let the LRAC know when it was done. W-2 AF, Tab 9 at 47. However,
after 2 months of waiting with no further correspondence, on September 29, 2016,
the LRAC again closed out the appellant’s request “until medical documentation
is received.” Id.
It appears that the appellant dropped the matter until the following year,
when, for the first time on June 22, 2017, he submitted a request for
accommodation complete with medical documentation. Id. at 42-46. On
August 9, 2017, the Executive Director approved the appellant’s request to
telework from Georgia full time. Id. at 40-41.
Looking at this timeline of events, we find that the agency had strong
reasons for denying the appellant’s telework requests throughout 2016. The
appellant was repeatedly advised throughout this time period, and indeed in the
months leading up to it, that the existence of a previous interim accommodation
was not a sufficient basis to grant his current request and that he would need to
have his healthcare provider complete the proper forms in order for the process to
move forward. The appellant was provided these forms on multiple occasions
and was repeatedly reminded that they needed to be returned. Nevertheless, he
continually chose not to cooperate with the agency and instead insisted that the
existence of his February 26, 2014 interim accommodation was all the
information the agency needed. Tellingly, when the appellant finally supplied the
requested medical documentation in June 2017, the agency acted promptly in
granting his telework request. The agency was fully justified in requiring medical
evidence to support the appellant’s request for reasonable accommodation, and it
did not violate the Rehabilitation Act by declining to grant the grant the request
until such documentation was provided. See Moylett v. U.S. Postal Service ,22
Appeal No. 0120091735, 2012 WL 3059884 at *11–12 (July 17, 2012) (finding
that an employee was responsible for a breakdown in the interactive process
because he did not respond to his agency’s reasonable request for documentation
regarding his disability and functional limitations); Equal Employment
Opportunity Commission, Enforcement Guidance: Reasonable Accommodation
and Undue Hardship Under the Americans With Disability Act, Questions 6, 8
(Oct. 17, 2002), https://www.eeoc.gov/laws/guidance / enforcement-guidance-
reasonable-accommodation-and-undue-hardship-under-ada (last visited Nov. 22,
2024).
Regarding the retaliatory motive of the agency officials involved, the
administrative judge found that the appellant’s supervisor had little motive to
retaliate for the appellant’s OIG disclosure. For reasons set forth above, we find
evidence of a slight retaliatory motive on the part of the appellant’s supervisor.
See Robinson, 923 F.3d at 1019. The other agency officials involved in this
personnel action were the LRAC and the Executive Director. The administrative
judge found, and the appellant does not dispute, that there is no evidence to
suggest that the LRAC had any retaliatory motive. ID at 17. The administrative
judge also found no evidence that the Executive Director had any motive to
retaliate for the appellant’s disclosure because the disclosure was not directed at
her, and she was not mentioned in the OIG’s report of investigation. ID at 25.
We disagree with the administrative judge that there was no evidence of
retaliatory motive for the Executive Director because, like the appellant’s
immediate supervisor, she was an official who represented the “general
institutional interests of the agency.” Chambers, 116 M.S.P.R. 17, ¶ 69.
Nevertheless, we find that her motive to retaliate was slight.
Neither party presented any evidence on whether the agency granted
accommodations to similarly situated non-whistleblowers despite the absence of
medical documentation. Mindful that the agency bears the burden of proof on23
this point, we find that this factor cuts slightly against the agency. See Miller v.
Department of Justice , 842 F.3d 1252, 1262 (Fed. Cir. 2016).
Nevertheless, considering the record as a whole, and in light of our finding
that the agency proved by clear and convincing evidence that it would have
discontinued the appellant’s telework on November 5, 2015, notwithstanding his
protected disclosure, we also find that the agency proved by clear and convincing
evidence that it would have declined to reinstate the appellant’s telework
notwithstanding his protected disclosure. We find the course of events as set
forth above to be compelling. It was the appellant, and not the agency, who was
responsible for the repeated breakdown of the interactive process, and there is
little reason to suppose that the continual denial of the appellant’s telework
request was attributable to anything but his own failure to comply with the
agency’s reasonable request for medical documentation.
The appellant’s March 2017 Nonselection for Acting Director of
VHA Innovations
Regarding personnel action 7, the appellant’s March 2017 nonselection for
Acting Director of VHA Innovations, the administrative judge found that the
agency proved by clear and convincing evidence that it would have taken the
same personnel action even absent the appellant’s disclosure. ID at 24-25.
Specifically, the administrative judge found that the agency had strong reasons
for its decision because the appellant’s application did not include all of the
information requested. Furthermore, the appellant lacked the leadership
experience of the individual whom the agency ultimately selected – experience
that the agency maintained was crucial in the selection process. Id. The
administrative judge also found that the two selecting officials, the Executive
Director and her Co-Director, lacked retaliatory motive. ID at 25. Regarding the
agency’s treatment of similarly situated non-whistleblowers, the administrative
judge found that this factor also weighed in the agency’s favor because there was24
no indication that the selectee’s application was incomplete and thus that he was
similarly situated to the appellant. Id.
On petition for review, the appellant disputes the strength of the agency’s
reasons in support of this action.6 First, he contests the administrative judge’s
finding that he did not submit the required materials with his application. PFR
File, Tab 1 at 16. However, we find that the appellant’s bare assertion that he
submitted the required materials constitutes mere disagreement with the
administrative judge’s reasoned and explained finding on this issue and therefore
provides no basis to disturb the initial decision. See Weaver v. Department of the
Navy, 2 M.S.P.R. 129, 133 -34 (1980). This is especially so because the
administrative judge’s finding in this regard was based implicitly on witness
demeanor. ID at 25; see Purifoy v. Department of Veterans Affairs , 838 F.3d
1367, 1373 (Fed. Cir. 2016) (holding that Board must give “special deference” to
an administrative judge’s demeanor-based credibility determinations, “[e]ven if
demeanor is not explicitly discussed”).
Second, the appellant renews his argument that the agency arbitrarily
limited its consideration of leadership experience to the past 3 years in order to
rig the selection process against him. PFR File, Tab 1 at 15-16. As an initial
matter, we find that the appellant is misreading the agency’s job announcement;
the Executive Director requested that applicants submit their last three
performance reviews, but she did not put a time limit on consideration of
leadership experience. IAF, Tab 45 at 81. Furthermore, even if the agency had
imposed such a limitation, we take notice that recent experience is generally more
pertinent than older experience when it comes to job applications, and we agree
with the administrative judge that there is no reason to suppose that any such
limitation was calculated to harm the appellant’s prospects. ID at 25 n.19. For
6 The appellant also argues that he proved that his disclosure was a contributing factor
in his nonselection under the knowledge/timing test. PFR File, Tab 1 at 28-29.
However, this represents agreement with the administrative judge’s finding and
reasoning on this issue. ID at 18-19. 25
the reasons explained in the initial decision, we agree with the administrative
judge that the agency’s selection decision was well-supported. ID at 24-25.
The appellant does not contest the administrative judge’s finding that
neither the Executive Director nor the Co-Director had motive to retaliate for his
disclosure. ID at 25. With the caveat that both of these officials would
presumably have had some retaliatory motive as representatives of the agency’s
institutional interests, we agree with the administrative judge that the evidence of
retaliatory motive is weak.
Regarding the agency’s treatment of similarly-situated individuals,
although the appellant does not contest the administrative judge’s finding on this
issue either, we cannot agree with the administrative judge’s reasoning. The
agency may have established that the appellant and the selectee were not similarly
situated, but this does not constitute evidence of the agency’s treatment of
non-whistleblowers whose applications were similar to the appellant’s and who
applied for the position at issue or similar positions. Therefore, this factor cannot
favor the agency. See Smith v. General Services Administration , 930 F.3d 1359,
1367 (Fed. Cir. 2019). Nevertheless, although this factor does not weigh in the
agency’s favor, we do not find that it weighs significantly in favor of the
appellant. See Campbell v. Department of the Army , 123 M.S.P.R. 674, ¶ 20
(2016).
Considering the evidence as a whole, we agree with the administrative
judge’s conclusion that the agency proved by clear and convincing evidence that
it would not have selected the appellant for Acting Director even in the absence
of his protected disclosure. ID at 24-25.26
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.27
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any28
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s29
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 30
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.31 | Freudenberg_Rocky_AT-1221-18-0321-W-2_Final_Order.pdf | 2024-12-05 | ROCKY FREUDENBERG v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-18-0321-W-2, December 5, 2024 | AT-1221-18-0321-W-2 | NP |
324 | https://www.mspb.gov/decisions/nonprecedential/Durante_BennyDA-0353-23-0231-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENNY DURANTE,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DA-0353-23-0231-I-1
DATE: December 5, 2024
THIS ORDER IS NONPRECEDENTIAL1
Wendi Durante , Fort Worth, Texas, for the appellant.
Deborah Charette , Esquire, and Alicia M. Dixon , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his restoration appeal for lack of jurisdiction . For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and find that the Board has jurisdiction over the restoration
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appeal. We REMAND the case to the regional office for further adjudication in
accordance with this Remand Order.
BACKGROUND
¶2The appellant holds the position of Large Examining Printing Equipment
Pressman Lead for the agency’s Bureau of Engraving and Printing. Initial Appeal
File (IAF), Tab 1 at 1, Tab 13 at 20-21. This is a position that requires
substantial standing and other physical exertion, including lifting as much as
70 pounds. IAF, Tab 13 at 21.
¶3In December 2022, the appellant sustained a knee injury and filed a claim
for workers’ compensation benefits.2 Id. at 22. That same month, his physicians
submitted two reports about the appellant’s functional limitations, which were
inconsistent with his position. Id. at 26-27 (report dated December 12), 32
(report dated December 28). For example, those limitations included no lifting
over 5 pounds. Id. The first report also suggested that the appellant had some
capacity to stand during a workday, id. at 26, while the second report indicated
that he could not, id. at 32.
¶4On January 4, 2023, the agency offered the appellant a “light/limited duty
assignment” as an escort, but it reversed course after just that one day of work.3
IAF, Tab 4 at 4, Tab 13 at 46-47. According to the appellant, the agency decided
that his restrictions could not be met. IAF, Tab 4 at 4. A contemporaneous email
from an agency official reflects similarly, stating that it could not allow the
appellant to work if he was unable to stand at all during a work shift, as indicated
in the most recent physician’s report of limitations. IAF, Tab 13 at 32, 48.
2 In the period that followed, there was some dispute about whether the appellant’s
injury was compensable, but the Department of Labor ultimately decided that it was.
IAF, Tab 13 at 62-63. This back-and-forth is not particularly relevant to the instant
appeal.
3 By all accounts, the escort duties involved escorting and observing contractors
throughout agency facilities that manufacture currency. E.g., IAF, Tab 13 at 47. It
seems that this is a duty that can oftentimes be done with the assistance of a motorized
scooter. E.g., id. at 13, 48, 79.2
¶5On February 8, 2023, the appellant’s physician examined him again and
submitted a new set of work-related limitations. This time those limitations
included lifting no more than 10 pounds but also indicated that the appellant
could not sit or stand during a workday. Id. at 78. During the next follow-up, on
February 22, 2023, the physician reported similarly. IAF, Tab 4 at 23.
¶6In the days that followed, the agency contacted the appellant’s physician to
clarify his restrictions as compared to available work. IAF, Tab 13 at 79-82.
Consequently, on March 9, 2023, the agency once again offered the appellant a
“light/limited duty assignment” as an escort. The appellant accepted the offer and
began working in this capacity on March 13, 2013. IAF, Tab 4 at 5, Tab 13 at 83.
¶7The appellant filed the instant appeal, arguing that he was capable of the
light/limited duty escorting assignment throughout the period between
January 5, 2023, and March 13, 2023, a period during which the agency indicated
that it could not accommodate him. IAF, Tab 1 at 6. The administrative judge
provided the appellant with the Board’s standards for restoration appeals and
instructed him to meet his jurisdictional burden. IAF, Tab 7. She later held a
status conference, warning that the appellant had not yet met that burden. IAF,
Tab 10. In particular, the administrative judge indicated that the appellant had
failed to nonfrivolously allege that the agency did not meet its obligation to
search within the local commuting area for vacant positions to which it could
restore the appellant and consider him for any such vacancies. Id. at 3. After
further pleadings from both parties, the administrative judge dismissed the appeal
for the same reason. IAF, Tab 15, Initial Decision (ID) at 1, 5-8.4 Among other
things, she explained that the appellant presented no evidence or argument that
the escort duties were the essential functions of an established position. ID at 8
(citing Cronin v. U.S. Postal Service , 2022 MSPB 13).
4 The administrative judge separately found that the appellant established good cause
for his delay in filing this appeal. ID at 3-5.3
¶8The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1 at 5-7. With it, he attaches new evidence, which consists of training
materials and an agency security manual. Id. at 13-231. The agency has filed a
response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9To establish Board jurisdiction over a restoration claim as a partially
recovered employee, an appellant must make nonfrivolous allegations that: (1) he
was absent from his position due to a compensable injury; (2) he recovered
sufficiently to return to duty on a part-time basis, or to return to work in a
position with less demanding physical requirements than those previously
required of him; (3) the agency denied his request for restoration; and (4) the
denial was arbitrary and capricious. Cronin, 2022 MSPB 13, ¶ 12. The
administrative judge found that the dispositive issue in this appeal is whether the
appellant satisfied the last of these elements, and we agree.
¶10In Cronin, the Board clarified this dispositive element of the appellant’s
jurisdictional burden. The Board explicitly overruled prior caselaw that had
indicated 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.,
¶ 20. The Cronin decision explained that, while an agency may obligate itself
through rule or policy, for example, to undertake restoration efforts beyond those
required under 5 C.F.R. § 353.301(d), 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), i.e., to search within the local commuting area for vacant positions
to which it can restore the employee and to consider him for any such vacancies.
Id.
¶11Throughout this appeal, the appellant has consistently argued that he could
have performed escort duties during the relevant period. E.g., IAF, Tab 4 at 5-6,4
Tab 14 at 6-7. He argued that escort assignments were ongoing, with some
individuals performing in that role for years at a time. IAF, Tab 11 at 4. The
appellant also submitted escort schedules, alleging that they demonstrated a need
for additional escorts during the January to March 2023 period at issue in this
appeal. Id. at 6-18. However, the agency argued that these escort assignments
are not permanent jobs, they are temporary light duties sometimes given to
employees with compensable injuries pursuant to the agency’s own internal
policies. IAF, Tab 13 at 13-14. The agency also submitted its light and limited
duty policy, which explains that light and limited duty assignment is neither
guaranteed nor a permanent work arrangement. Id. at 36. The appellant
presented no substantive argument or evidence to the contrary during the
proceedings below.
¶12On review, the appellant argues for the first time that “Escorting is a job” at
the agency. PFR File, Tab 1 at 5. He points us to the documents in which the
agency offered him the assignment, arguing that they prove that escorting is a
position in the agency. Id. at 5-6 (referencing IAF, Tab 13 at 46-47, 83). While
he is correct that these documents include references to a “light/limited duty
assignment offer” and “job title: escorting (unclassified),” we are not persuaded
that this is enough to satisfy his jurisdictional burden. The appellant has
effectively presented a bare and conclusory assertion that Escort was a position
within the agency, as opposed to a light duty given to injured employees pursuant
to the agency’s internal policies. See 5 C.F.R. § 1201.4(s) (explaining that an
allegation generally will be considered nonfrivolous when, under oath or penalty
of perjury, an individual makes an allegation that is more than conclusory; is
plausible on its face; and is material to the legal issues in the appeal); see also
Clark v. U.S. Postal Service , 123 M.S.P.R. 466, ¶ 8 (2016) (discussing
nonfrivolous allegations in the context of restoration appeals and explaining that
a vague, conclusory, or unsupported allegation, such as one that essentially
repeats the legal standard, without more, is pro forma and insufficient), aff’d per5
curiam, 679 F. App’x 1006 (Fed. Cir. 2017), overruled on other grounds by
Cronin, 2022 MSPB 13.
¶13We are similarly unmoved by evidence the appellant submitted for the first
time on review. PFR File, Tab 1 at 13-231. The evidence seems to only show
that escorting is a duty for which the agency has established rules and training
materials. Id. at 13-39, 95-97. Nothing about this evidence lends support to the
appellant’s suggestion that Escort is an established position within the agency.
¶14Lastly, we note that the appellant’s petition summarily states that he was
unaware of the need to allege that the agency failed to search the local commuting
area for vacant positions and to consider him for those positions. Id. at 7. But
the administrative judge explicitly described this pleading requirement in two
orders and afforded the appellant the opportunity to respond before she dismissed
his appeal. IAF, Tab 7 at 7-8, Tab 10 at 2-3.
¶15Although we are not particularly moved by the appellant’s arguments on
review, we nevertheless find that the Board has jurisdiction over this appeal,
requiring that we remand for further adjudication on the merits. As recognized by
the U.S. Court of Appeals for the Federal Circuit, “partially recovered employees
only enjoy a right to have the agency make ‘every effort to restore’ them ‘in the
local commuting area’ and ‘according to the circumstances in each case.’”
Bledsoe v. Merit Systems Protection Board , 659 F.3d 1097, 1103 (Fed. Cir. 2011)
(quoting 5 C.F.R. § 353.301(d)), superseded in part by regulation on other
grounds as stated in Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 10
(2016). Here, though, the agency’s filings suggest that the agency may not have
met those restoration obligations, which included looking beyond the appellant’s
own position. E.g., IAF, Tab 13 at 9-14. This is most pronounced in a pleading
in which the agency argued that 5 C.F.R. § 353.301(d) “is silent with regard to
‘light duty’ encompassing duties which do not comprise any part of the
employee’s regular position, to which he is entitled to be restored. Instead, the
regulation refers only to ‘limited’ duty and appears to be referring to tasks6
assigned which are part of the essential duties of the employee’s regular position
of record.” Id. at 11. On review, the agency’s response to the appellant’s
petition for review only adds to our suspicion by arguing that it “more than
fulfilled [the agency’s] obligations by offering a light duty assignment to
[a]ppellant.” PFR File, Tab 3 at 8.
¶16Under these circumstances, we find that the Board has jurisdiction over the
appellant’s restoration appeal. On remand, the administrative judge should direct
the parties to submit argument and evidence about whether the agency searched
the local commuting area for vacant funded positions. The agency may have done
so, but its pleadings up to this point are at best confusing and at worst indicative
of the agency not meeting its obligations. After developing the record the
administrative judge should issue a remand initial decision, on the merits.
ORDER
¶17For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Durante_BennyDA-0353-23-0231-I-1_Remand_Order.pdf | 2024-12-05 | BENNY DURANTE v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DA-0353-23-0231-I-1, December 5, 2024 | DA-0353-23-0231-I-1 | NP |
325 | https://www.mspb.gov/decisions/nonprecedential/Brown_Sharon_E_PH-0845-19-0412-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHARON E. BROWN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0845-19-0412-I-1
DATE: December 4, 2024
THIS ORDER IS NONPRECEDENTIAL1
Sharon E. Brown , Towson, Maryland, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM) finding
that she had been overpaid $21,834.88 in Federal Employees’ Retirement System
(FERS) disability retirement annuity benefits and denying her request for a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
waiver of the overpayment, but modified the repayment schedule. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the case to the Northeastern Regional Office for
further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was a FERS-covered employee for the Social Security
Administration (SSA), with a service computation date of April 1, 2002. Initial
Appeal File (IAF), Tab 8 at 228. She last reported to duty on May 15, 2015, and
in October 2015, she applied for disability retirement benefits. IAF, Tab 1
at 122, Tab 8 at 220-22, 156, 175.
By letter dated February 23, 2017, OPM approved the appellant’s
application for disability retirement. IAF, Tab 8 at 76-79. OPM notified the
appellant that, once she separated from service and SSA notified it of her last day
in pay status, OPM would begin authorizing interim payments. Id. at 76. On
February 27, 2017, SSA informed OPM that the appellant’s last day in pay status
was the same as her last day in duty status—May 15, 2015. Id. at 156-57. On
March 2, 2017, the appellant separated from service, and on March 3, 2017, she
began receiving interim disability annuity payments, including a retroactive
lump-sum payment. IAF, Tab 1 at 116, Tab 8 at 26, 146, 233.
Subsequently, OPM learned that May 15, 2015, was not actually the
appellant’s last day of pay. IAF, Tab 8 at 152-53, 233. Rather, the appellant’s
Individual Retirement Record (IRR) showed that her last day in pay status was
October 5, 2016, and SSA later confirmed that it had paid the appellant for 8
hours of annual leave on that date. IAF, Tab 8 at 147, 233, Tab 14 at 5-10.
Because the appellant had turned 62 years old in September 2016, prior to her
actual last day in pay status, OPM determined that she was not entitled to a
disability retirement annuity, but rather a basic (or “earned”) annuity,
commencing October 6, 2016. IAF, Tab 8 at 24-25.2
Eventually, OPM issued a final decision finding that it had overpaid the
appellant $21,834.88 in annuity benefits, which it proposed to collect through
229 monthly installments of $95, and a final installment of $79.88. Id. at 21-25.
Specifically, OPM determined that $21,834.88 was the difference between the
basic annuity payments to which the appellant was entitled and the interim
disability retirement annuity payments that she had actually received. Id. at 24,
26-27. This difference was owing both to the later start date for the basic annuity
(October 2016 instead of March 2016) and the lower monthly amount of the basic
annuity (approximately $680 per month instead of approximately $1,853 per
month). Id.
This appeal followed. IAF, Tab 1. The appellant contested the change of
her disability retirement annuity to a regular annuity and the resulting
overpayment, and she argued that she could not afford to repay the overpayment.
IAF, Tab 1 at 19-20, Tab 12 at 2-3, 9, Tab 17, Hearing Compact Disc (HCD)
(testimony of the appellant). After a hearing, the administrative judge affirmed
OPM’s final decision as to the existence and the amount of the overpayment.
IAF, Tab 20, Initial Decision (ID) at 1, 3 -4. She also found that the appellant did
not provide a sufficient basis to waive collection, but she nevertheless adjusted
the repayment schedule to 1,455 monthly installments of $15 and a final
installment of $9.88. ID at 5-7.
The appellant has filed a petition for review arguing that SSA made a
mistake in placing her on annual leave on October 5, 2016, she is entitled to a
disability retirement annuity, and collection of any overpayment should be
waived based on financial hardship. Petition for Review (PFR) File, Tab 1 at 2,
4, 10. OPM has filed a response. PFR File, Tab 4.3
DISCUSSION OF ARGUMENTS ON REVIEW
Existence and Amount of the Overpayment.
OPM’s final decision, and hence this Board appeal, concerns both the
appellant’s eligibility for disability retirement and, contingent on that eligibility,
an overpayment of annuity benefits. In an appeal from an OPM decision on a
voluntary disability retirement application, the appellant 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). However, OPM bears
the burden of proving by preponderant evidence the existence and amount of an
annuity overpayment. Vojas v. Office of Personnel Management , 115 M.S.P.R.
502, ¶ 10 (2011); 5 C.F.R. § 845.307(a). In the context of this case, these issues
are intertwined. For the reasons explained in the initial decision, we agree with
the administrative judge that the current record supports OPM’s determination
that the appellant was not entitled to disability retirement and, hence, was
overpaid $21,834.88 in annuity benefits. ID at 2-4. However, as set forth below,
we find it appropriate to remand the appeal for further evidence and argument on
the issue of the appellant’s eligibility.
Knowing that her last day in pay status was the key issue that needed to be
resolved in order to obtain disability retirement, the appellant requested that the
SSA correct her IRR. On January 29, 2019, an SSA Employee Assistance
Program Counselor emailed OPM, stating that the appellant’s last day in pay
status was May 15, 2015. IAF, Tab 8 at 70. However, OPM was not willing to
accept this email as an administratively sufficient basis to amend its records,
insisting that any correction to the appellant’s last day in pay be certified on a
Standard Form (SF) 3100 or SF 3101 -101. Id. at 129, 137. OPM followed up
with SSA and requested a final answer on which date to use as the appellant’s last
day in pay status. Id. at 146, 150. After some inconclusive internal discussions,
SSA reported to OPM that the appellant’s time and attendance record for
October 5, 2016, reflected 8 hours of annual leave, so SSA was confirming that as4
her last date in pay. Id. at 147-50. Both OPM and the administrative judge used
this date in their respective decisions. ID at 4; IAF, Tab 8 at 24-25.
It is undisputed that SSA paid the appellant for 8 hours of annual leave on
October 5, 2016. ID at 4; IAF, Tab 8 at 233, Tab 14 at 2-10, Tab 18 at 5; PFR
File, Tab 1 at 1-2, 4. It is also undisputed that this payment of annual leave,
which netted the appellant a total of $9.47, rendered her ineligible for FERS
disability retirement and caused her to incur a $21,834.88 overpayment.
However, the appellant has, at every point in these proceedings, argued that the
payment was an administrative error that should be reversed, but she has yet to
receive an independent review of the issue. IAF, Tab 1 at 5, Tab 8 at 65; PFR
File, Tab 1 at 1-2, 4. We find that she is entitled to one.
IRRs are important documents that form the basis for OPM benefits
determinations. See generally 5 C.F.R. § 841.504; OPM, Civil Service
Retirement System and FERS Handbook, Individual Retirement Records and
Registers of Separations and Transfers, ch. 81, part 81A2 (April 1998), https://
www.opm.gov/retirement-services/publications-forms/csrsfers-handbook/
c020.pdf . An applicant for benefits has the right to contest the accuracy of the
information contained in her IRR. She may do so in the context of an OPM
benefits determination or a Board appeal of a final OPM decision affecting her
rights or interests under the retirement statutes. Lisanti v. Office of Personnel
Management, 573 F.3d 1334, 1340 (Fed. Cir. 2009); Billinger v. Office of
Personnel Management , 206 F.3d 1404, 1407 (Fed. Cir. 2000); Beal v. Office of
Personnel Management , 122 M.S.P.R. 210, ¶¶ 6-8 (2015); Conner v. Office of
Personnel Management , 120 M.S.P.R. 670, ¶¶ 4-7 (2014).
We have carefully reviewed the record in this appeal, and we find that there
is no evidence, such as a documented leave request, that would support SSA’s
decision to charge the appellant annual leave on October 5, 2016. In fact, the
appellant specifically denies requesting leave on that date. PFR File, Tab 1 at 1.
Nor is there a coherent explanation of how this happened. After a great deal of5
internal correspondence, the most that the SSA human resources officials could
tell OPM was that SSA could not correct the last date of pay because the
appellant had “received 400 hours pay from [Family and Medical Leave Act
(FMLA)] and another 158 hours from a leave share program.” IAF, Tab 8
at 147-52, 175-76. However, it is not clear to us what the appellant availing
herself of FMLA and shared leave has to do with the matter at hand. We are not
talking about 558 hours of (possibly unpaid) leave on unspecified dates; we are
talking about 8 hours of paid annual leave on a very specific date—October 5,
2016. Moreover, the very same Employee Assistance Program Counselor who
gave this explanation also stated consistently that the appellant’s last date of pay
should have been May 15, 2015. Id. at 121, 175-76. He elsewhere gave a
somewhat different explanation for SSA’s inability to amend its records: “I
understand that there may be a discrepancy about that date which I believe was
caused by donated leave but, unfortunately, her pay card cannot be amended due
to her being separated from this agency.” Id. at 154. This explanation likewise
does not give us any confidence that the October 5, 2016 payment was proper. In
fact, it suggests that the only thing standing in the way of a correction was some
sort of technical limitation in SSA’s recordkeeping system.
We appreciate that the appellant’s IRR is accurate in the sense that it
reflects that she was, in fact, paid for 8 hours of annual leave on October 5, 2016.
However, this begs the real question of whether the appellant should have been
paid on that date in the first place. To hold that the appellant is without a judicial
remedy for an action by her employing agency that majorly affected her rights
and interests under FERS is an “absurd result[] . . . to be avoided.” Lisanti,
573 F.3d at 1339 (quoting Wassenaar v. Office of Personnel Management ,
21 F.3d 1090, 1092 (Fed. Cir. 1994)). We find instead that the Board’s
jurisdiction extends to this underlying issue and that the parties should have a full
and fair opportunity to develop the record on it. 6
In her petition for review, the appellant stated that she was still seeking
help from the SSA Employee Assistance Program Counselor but that he was on
leave for medical reasons at the time. PFR File, Tab 1 at 2, 4. Bearing in mind
that the appellant has the burden of proving her entitlement to benefits, on
remand, the parties will have an opportunity to call this individual or another
appropriate SSA official as a witness at a supplemental hearing to explain why
SSA has inconsistent representations about the appellant’s last day of duty status
and pay, and to obtain other relevant evidence from SSA according to the Board’s
procedures. In particular, it would be helpful to have the appellant’s time and
attendance records for the 2015 to 2017 time period, documentary evidence of
any annual leave request that the appellant may have made for October 5, 2016,2
and any other documentary evidence of the appellant’s leave usage, leave status,
and leave balances (if any) from May 2015 onward. This pay action has
numerous indicia of being some kind of administrative error, including its
seemingly isolated nature, the apparent absence of a leave request, its deposit into
an unused bank account, and the lack of any clear explanation for it. However,
with the current state of the record, we cannot decide the issue one way or the
other.
Waiver
If, after receiving additional evidence and argument on remand as
described above, the administrative judge still finds that OPM has proven the
existence and the amount of the overpayment, then the administrative judge must
revisit the issue of waiver.
An appellant bears the burden of establishing her entitlement to a waiver of
recovery of an overpayment by substantial evidence. Boone v. Office of
2 On petition for review, the appellant specifically denies making any such request.
PFR File, Tab 1 at 1. If the appellant did not, in fact, request annual leave for
October 5, 2016, the Board would like to know whether there are any circumstances in
which SSA is authorized to place an employee in paid annual leave status against her
wishes or if SSA concedes that this was administrative error.7
Personnel Management , 119 M.S.P.R. 53, ¶ 5 (2012); 5 C.F.R. § 845.307(b).
Generally, the recovery of a FERS overpayment should be waived if the recipient
is without fault and recovery would be against equity and good conscience.
5 U.S.C. § 8470(b); Boone, 119 M.S.P.R. 53, ¶ 5; 5 C.F.R. § 845.301. As
relevant here, recovery is against equity and good conscience when it would
cause financial hardship.3 Boone, 119 M.S.P.R. 53, ¶ 5; 5 C.F.R. § 845.303(a).
OPM determined that the appellant was without fault in creating the overpayment,
a position with which the administrative judge implicitly agreed. IAF, Tab 8
at 24; ID at 5. Because the parties do not dispute that finding here, we decline to
disturb it. On review, the appellant disputes the administrative judge’s
determination that she failed to prove financial hardship entitling her to a waiver
of the overpayment. ID at 5-6; PFR File, Tab 1 at 2.
Financial hardship may exist when the annuitant needs substantially all of
her income and liquid assets to meet current ordinary and necessary living
expenses and liabilities. Malone v. Office of Personnel Management , 113
M.S.P.R. 104, ¶ 4 (2010); 5 C.F.R. § 845.304. OPM’s regulations specify that
ordinary and necessary living expenses include rent, mortgage payments, utilities,
maintenance, transportation, food, clothing, insurance (life, health, and accident),
taxes, installment payments, medical expenses, support expenses for which the
annuitant is legally responsible, and other miscellaneous expenses that the
individual can establish are ordinary and necessary. Stewart v. Office of
Personnel Management , 102 M.S.P.R. 272, ¶ 7 (2006); 5 C.F.R. § 845.305.
In determining whether living expenses are “ordinary and necessary,” the
Board applies a reasonable person test regardless of the annuitant’s accustomed
standard of living, taking into account the discrete circumstances particular to
3 OPM policy further provides that individuals who know or suspect that they are
receiving overpayments are expected to set aside the amount overpaid pending
recoupment and that in the absence of exceptional circumstances—which do not include
financial hardship—recovery in these cases is not against equity and good conscience.
Knox v. Office of Personnel Management , 107 M.S.P.R. 353, ¶ 8 (2007). Here, there is
no indication that the appellant knew or suspected that she was receiving overpayments.8
individual situations. Stewart, 102 M.S.P.R. 272, ¶ 7. Although ordinary and
necessary expenses should be reasonable under the circumstances, the Board
gives the appellant the benefit of the doubt unless the expense clearly constitutes
an extravagance or a luxury. Malone, 113 M.S.P.R. 104, ¶ 7.
For purposes of determining whether an annuitant is entitled to waiver of
the overpayment on the ground of financial hardship, the annuitant’s monthly
expenses are calculated by adding the following figures: (1) the annuitant’s
ordinary and necessary monthly expenses; and (2) $50 for emergency expenses,
as allowed by OPM. Spinella v. Office of Personnel Management , 109 M.S.P.R.
185, ¶ 11 (2008). The total monthly expense figure is then subtracted from total
monthly income to ascertain the annuitant’s income/expense margin. Id. Once an
annuitant’s income/expense margin is determined, the Board will consider the
annuitant’s total financial condition, and determine whether the annuitant needs
substantially all her current income and liquid assets to meet current and ordinary
living expenses and liabilities. Id.
The appellant did not provide OPM with a Financial Resources
Questionnaire (FRQ), but she submitted one during the proceedings below, which
the administrative judge considered. IAF, Tab 8 at 25, Tab 16. According to this
FRQ, the appellant had $213.74 in liquid assets. IAF, Tab 16 at 3. She listed
$2,515.43 as her average monthly income and $3,659.02 as her average monthly
expenses.4 Id. at 2. As the administrative judge noted, the appellant included
both a monthly mortgage amount and $729.30 per month in taxes. IAF, Tab 16
4 In her FRQ, apparently completed in November 2019, the appellant noted that the
$1,442.09 she listed in monthly mortgage payments was the amount her mortgage would
be increased to beginning on December 1, 2019. IAF, Tab 16 at 2. Accordingly, the
appellant’s assertion on review that her mortgage payments have now increased to this
amount has already been taken into account. PFR File, Tab 1 at 2. The credit report
she provides on review in support of her mortgage payments is therefore not material to
our decision. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980)
(explaining 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).9
at 2; ID at 6. The administrative judge found it likely that the appellant’s taxes
are included in her mortgage. ID at 6. Regarding the $254.15 that the appellant
listed in monthly payments on existing installment contracts and other debts, she
only explained where $165 of that amount went. IAF, Tab 16 at 2-3. Moreover,
the administrative judge noted that the debt she paid $165 per month on was
scheduled to be paid off in 2 years. ID at 6. The appellant does not challenge
these findings on review, and we see no reason to disturb them. Accordingly, we
subtract the $729.30 and $254.15 figures listed in the appellant’s expense column,
add $50 in emergency expenses, and calculate her average monthly expenses to
be $2,725.57. This is $210.14 more than the appellant’s average monthly income.
When an appellant is without fault regarding an overpayment and needs all
of her income and liquid assets to meet current ordinary and necessary living
expenses and liabilities, the Board has found financial hardship warranting a
waiver. See, e.g., Stewart, 102 M.S.P.R. 272, ¶ 10; Hudson v. Office of Personnel
Management, 87 M.S.P.R. 385, ¶ 12 (2000); Tatum v. Office of Personnel
Management, 82 M.S.P.R. 96, ¶ 21 (1999).5 Here, however, we do not find that
the record establishes by substantial evidence that the appellant currently has a
negative income/expense margin. For one, the appellant’s FRQ was apparently
completed in November 2019, and it seems probable that by now her financial
condition has changed. See Spinella, 109 M.S.P.R. 185, ¶ 12 (finding that a
negative income/expense margin of $480 suggested that the appellant might be
entitled to a waiver based on financial hardship and remanding to the
administrative judge because the appellant’s FRQ was nearly 2 years old and he
claimed on review that his financial condition had deteriorated).
5 The administrative judge found that the appellant failed to establish financial hardship
entitling her to a waiver but did establish financial hardship entitling her to an
adjustment. ID at 6-7. Because, as represented below, the appellant’s expenses and
liquid assets exceeded her income, we find it unnecessary to determine whether it is
appropriate to make a distinction between financial hardship for waiver and financial
hardship for an adjustment. 10
Additionally, the appellant failed to explain or substantiate a number of
items listed in her FRQ. For instance, she listed $1,828 in monthly disability
benefits, but because she did not specify the source, it is unclear whether she
included in that amount her FERS basic annuity payments. IAF, Tab 16 at 2. The
appellant failed to state whether she paid any taxes other than her mortgage taxes;
questioned her own listed clothing and transportation expenses; and indicated that
she has no medical or dental expenses, which appears unreasonable absent an
explanation. Id. As indicated above, she accounted for only $165 of her claimed
$254.15 monthly installment payments on other debts. Id. at 2-3. Accordingly,
we do not find that the appellant’s claimed income and expenses are complete and
reasonable on their face. See Spinella, 109 M.S.P.R. 185, ¶ 11 (finding that in the
absence of a specific challenge by OPM, an appellant seeking waiver of an
annuity overpayment should not be required to substantiate his expenses and
income unless the information submitted appears incomplete or unreasonable on
its face). For the reasons above and because the administrative judge did not
inform the appellant of what evidence she needed to provide in support of her
financial hardship claim, we find it appropriate to remand this appeal for further
adjudication of this issue. See Malone, 113 M.S.P.R. 104, ¶ 9 (remanding to
allow the appellant an opportunity to present evidence on whether a new expense
was reasonable and to submit an updated FRQ with supporting documentation);
Starr v. Office of Personnel Management , 81 M.S.P.R. 633, ¶ 7 (1999)
(remanding to afford the appellant an opportunity to present evidence to establish
his monthly income and expenses, and cautioning that—if he failed to cooperate
by providing requested information—his repayment schedule would not be
adjusted); Harless v. Office of Personnel Management , 71 M.S.P.R. 110, 113
(1996) (finding that an administrative judge should give an appellant a chance to
submit current financial information if the evidence initially submitted is
incomplete, confusing, or out of date).11
ORDER
For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Brown_Sharon_E_PH-0845-19-0412-I-1_Remand_Order.pdf | 2024-12-04 | SHARON E. BROWN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0845-19-0412-I-1, December 4, 2024 | PH-0845-19-0412-I-1 | NP |
326 | https://www.mspb.gov/decisions/nonprecedential/Scott_LisaDE-0752-19-0221-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LISA SCOTT,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBER
DE-0752-19-0221-I-1
DATE: December 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lisa Scott , Thornton, Colorado, pro se.
Colin J. Ratterman , Esquire, and Nicole A. Allard , Esquire, Denver,
Colorado, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s 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 material fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly sustained the charge of failure to follow
instructions.
On petition for review, the appellant argues that the administrative judge
erroneously sustained specifications 1, 2, 5, 6, and 7 of the charge of failure to
follow instructions. Petition for Review (PFR) File, Tab 3 at 4-5.2 We have
considered the appellant’s arguments but find no reason to disturb the
administrative judge’s explained findings. Regarding specification 1, we find no
reason to disturb the administrative judge’s explained finding that the appellant
was not subjected to a same-day recall from telework, and thus, her legal
arguments about a potential violation of the collective bargaining agreement are
immaterial. Initial Appeal File (IAF), Tab 33, Initial Decision (ID) at 6, 8.
Regarding specification 2, the appellant’s argument about being granted 2 hours
of sick leave to complete her workday does not demonstrate material error in the
2 The administrative judge did not sustain specification 3, and the appellant is not
raising a cognizable challenge to the administrative judge’s findings sustaining
specification 4. Initial Appeal File, Tab 33, Initial Decision at 11-15; PFR File, Tab 3
at 4.2
administrative judge’s finding that she failed to comply with a valid instruction to
report to the office earlier in the day. ID at 9-11. Regarding specification 5, we
agree with the administrative judge’s finding that the appellant did not engage in,
and was not prohibited from engaging in, protected activity opposing harassment
or discrimination, as the appellant did not have a reasonable, good-faith belief
that she was opposing such harassment or discrimination. ID at 15-19, 29.
Regarding specification 6, the appellant briefly reasserts factual arguments
considered by the administrative judge, but we find that the administrative judge
properly found that the agency proved this specification for the reasons explained
in the initial decision. ID at 22-23. Further, the Colorado Department of Labor’s
findings are not binding on the Board, and we find that they do not provide a
basis for disturbing the administrative judge’s findings, which are supported by
the record in this appeal. See Lucas v. Department of Veterans Affairs ,
52 M.S.P.R. 267, 270 (1992). The administrative judge did not sustain
specification 7, so the appellant’s arguments regarding that specification are
immaterial to the outcome. ID at 23-24.
To the extent that the appellant argues that the agency’s use of adverse
action procedures under 5 U.S.C. chapter 75 was inappropriate because the
charges were based on performance issues that should have been addressed under
5 U.S.C. chapter 43, we disagree. PFR File, Tab 3 at 5; IAF, Tab 28 at 4. The
agency had the option to proceed under chapter 75 with its charge of failure to
follow instructions. See Lovshin v. Department of the Navy , 767 F.2d 826, 843
(Fed. Cir. 1985). To the extent that the appellant argues that her performance
record proves that the removal penalty was excessive or retaliatory, we disagree.
PFR File, Tab 3 at 5; IAF, Tab 28 at 4. The initial decision shows that her
performance ratings were considered but were outweighed by other factors
supporting the agency’s penalty. ID at 32; IAF, Tab 11 at 6-7. Further, we find
that such evidence is not of sufficient weight to disturb the administrative judge’s
findings on her retaliation claims. 3
The appellant’s claims of procedural errors, ex parte communication, and
administrative judge bias provide no basis to disturb the initial decision.
The appellant raises various allegations of error in the administrative
judge’s processing of the appeal, including that the administrative judge
“show[ed] great bias,” pressured her to combine her removal appeal with matters
she was pursuing with the Equal Employment Opportunity Commission, changed
dates for the close of the record, and “removed critical documents [she] had
uploaded to support her case.” PFR File, Tab 3 at 4-5. We find no evidence of
any material procedural error, and the appellant’s allegations about the
administrative judge’s case-related rulings fail to establish any bias on the part of
administrative judge.
In making a claim of bias an appellant must overcome a presumption of
honesty and integrity which accompanies administrative adjudicators. See Oliver
v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980). The Board will
not infer bias based on an administrative judge’s case-related rulings.
See Vaughn v. Department of the Treasury , 119 M.S.P.R. 605, ¶ 18 (2013) (citing
Williams v. U.S. Postal Service , 87 M.S.P.R. 313, ¶ 12 (2000)). The appellant
falls well short of demonstrating any bias in this appeal. For instance, she fails to
describe or provide evidence of any improper ex parte communications between
the administrative judge and agency counsel and/or that her substantive rights
were harmed. We find no abuse of discretion in the administrative judge’s
handling of the close of the record, processing of the appeal, or decision to
adjudicate the appellant’s affirmative defenses to the removal action.
See 5 C.F.R. §§ 1201.28, 1201.41 (granting an administrative judge wide
discretion to control initial appeal proceedings, including the discretion to set
and/or reschedule deadlines and suspend the processing of an appeal).
Regarding the appellant’s claim that she tried to submit a rebuttal pleading
that was rejected by the administrative judge, PFR File, Tab 3 at 4-6, we find no
record that the appellant ever filed such a pleading. Although the Board will4
permit evidence or argument submitted “in rebuttal to new evidence or argument
submitted by the other party just before the record closed,” 5 C.F.R. § 1201.59(c)
(2), the content of the appellant’s purported July 18, 2019 pleading is not merely
rebuttal to the agency’s close-of-record pleading; rather, it contains evidence and
arguments that the appellant should have affirmatively put forth in the timely
presentation of her case before the close of the record, PFR File, Tab 3 at 6-30.
Thus, we will not further consider this evidence and argument. We have
otherwise considered the appellant’s allegations on review pertaining to her
retaliation claims, PFR File, Tab 3 at 4-5, Tab 7 at 4, but we find that they are not
of sufficient weight to change the outcome.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 Since the issuance of the initial decision in this matter, the Board has updated the
notice of review rights included in final decisions. As indicated in the notice, the Board
cannot advise which option is most appropriate in any matter.5
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you6
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 7
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Scott_LisaDE-0752-19-0221-I-1_Final_Order.pdf | 2024-12-03 | LISA SCOTT v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. DE-0752-19-0221-I-1, December 3, 2024 | DE-0752-19-0221-I-1 | NP |
327 | https://www.mspb.gov/decisions/nonprecedential/Ortiz-Meneses_OmarNY-0752-20-0101-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
OMAR ORTIZ-MENESES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-0752-20-0101-I-1
DATE: December 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Francisco J. Reyes , Guaynabo, Puerto Rico, for the appellant.
Ana M. Margarida , San Juan, Puerto Rico, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of his removal taken pursuant to 38 U.S.C. § 714 for lack of
jurisdiction and as untimely filed. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify the length of the filing delay and why the appellant is not
entitled to waiver or tolling of the statutory filing deadline and to clarify that the
Board has expressly held that the election of remedies provisions set forth at
5 U.S.C. § 7121(e) apply to actions taken pursuant to 38 U.S.C. § 714, we
AFFIRM the initial decision.
BACKGROUND
Effective January 24, 2020, the agency removed the appellant from his
Medical Instrumentation Technician position under the authority of 38 U.S.C.
§ 714 based on charges of failure to follow protocol, failure to document clinical
data, and delay in patient care. Initial Appeal File (IAF), Tab 7 at 17-19, 23. The
decision letter advised the appellant of his appeal rights regarding his removal,
including his right to file an appeal with the Board “not later than 10 business
days after the date of [the] action” or to file a grievance under the relevant
negotiated grievance procedure. Id. at 17-18. The letter informed the appellant
that he could not file an appeal regarding his removal “with more than one
administrative body” and that his “election [would be] based in which election
[he] file[d] first.” Id. at 18. The appellant filed a grievance, and the agency2
issued a step three grievance decision sustaining the removal on February 13,
2020. IAF, Tab 1 at 5, Tab 7 at 20-21.2
On February 25, 2020, the appellant filed his Board appeal challenging the
merits of his removal. IAF, Tab 1 at 6, 8-13. The appellant maintained that he
had filed his appeal within 14 days of the “final action.” Id. at 8. He also
challenged the grievance procedures and argued that the agency had violated his
right to due process by having the same agency official issue a decision at the
step two and step three levels. Id. at 10-12. The agency filed a motion to dismiss
the appeal for lack of jurisdiction because the appellant had elected to appeal his
removal under the relevant negotiated grievance procedure and therefore could
not also file a Board appeal. IAF, Tab 7 at 4-8. The administrative judge ordered
the appellant to file evidence and argument regarding the election of remedies
issue. IAF, Tab 8 at 1. In response, the appellant argued that the agency had
maintained during the grievance process that 38 U.S.C. § 714 prohibited an
employee from filing a grievance of an action taken under that authority and,
therefore, that a Board appeal was the “only option available.” IAF, Tab 9 at 4-5.
He further argued that he had to go through the grievance process through the
step three level prior to either filing a Board appeal or invoking arbitration, and
that he had appropriately filed his Board appeal after receiving the agency’s step
three grievance decision. Id. at 6-7.
Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID) at 1, 4. The
administrative judge found that the appellant had elected to file a grievance under
the relevant collective bargaining agreement prior to filing his Board appeal. ID
at 3-4. The administrative judge also found that the appellant had failed to file
his Board appeal within the 10 business day statutory deadline. Id.
2 The appellant stated on his initial appeal form that he filed a grievance on
December 19, 2019. IAF, Tab 1 at 5. However, the record does not contain any
documents regarding the grievance at the step one or two levels. 3
The appellant has filed a petition for review contesting the administrative
judge’s finding that his appeal was untimely filed and challenging the merits of
his removal. Petition for Review (PFR) File, Tab 1.3 The agency did not file a
response to the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
On petition for review, the appellant argues that the administrative judge
improperly decided the appeal based on the issue of timeliness, even though the
agency had not raised this issue in its motion to dismiss the appeal for lack of
jurisdiction. PFR File, Tab 1 at 4. He repeats his argument that his removal was
final only after the agency’s step three grievance decision and, therefore, his
appeal was timely filed from that date. Id. at 4-5, 7. Initial Appeal File (IAF),
Tab 9 at 6-7. The appellant also repeats his factual allegations and arguments
concerning the merits of his removal. Id. at 8-11; IAF, Tab 1 at 8-13.
Pursuant to 38 U.S.C. § 714(a)(1), “[t]he Secretary [of the Department of
Veterans Affairs] may remove, demote, or suspend a covered individual . . . if the
Secretary determines the performance or misconduct of the covered individual
warrants such removal, demotion, or suspension.” A “covered individual” is an
3 After the appellant filed his petition for review, and after the petition for review
record closed, he attempted to submit an additional pleading titled “Motion to Reopen,
Violation of Due Process.” PFR File, Tab 3 at 1. The Office of the Clerk of the Board
advised the appellant that he could submit a motion requesting leave to file additional
pleadings, explaining the nature and the need for the pleadings, and showing that the
evidence was not readily available before the record closed. Id.; see 5 C.F.R.
§ 1201.114(a), (k). The appellant subsequently filed a motion for leave to file an
additional pleading, arguing that he had learned of alleged ex parte communications
between the deciding official, proposing official, and his supervisor during the time
between the issuance of the proposed removal and removal decision. PFR File, Tab 4
at 4-7. The appellant has failed to sufficiently explain the nature of the evidence he
wishes to file in his additional pleading or how this “information” concerning a
purported due process violation provides a basis for overturning the administrative
judge’s findings regarding the appellant’s binding election of remedies and the
untimeliness of his appeal. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349
(1980) (stating that evidence is material when it is of sufficient weight to warrant an
outcome different from that of the initial decision); 5 C.F.R. § 1201.114(a), (k).
Accordingly, the appellant’s motion is denied.4
individual occupying a position at the agency, with four exceptions not relevant
here. See 38 U.S.C. § 714(h)(1)(A)-(D). Such individual may appeal to the
Board any removal, demotion, or suspension of more than 14 days. 38 U.S.C.
§ 714(c)(4)(A). However, an appeal “may only be made if such appeal is made
not later than 10 business days after the date of such removal, demotion, or
suspension.” 38 U.S.C. § 714(c)(4)(B).
Here, the administrative judge found that the appellant was removed under
the authority of 38 U.S.C. § 714 effective January 24, 2020, and that any Board
appeal of that action was therefore due no later than February 3, 2020. ID at 3.
The agency clearly informed the appellant in the removal decision that he had 10
business days from the effective date of the action to file a Board appeal. IAF,
Tab 7 at 18. Because the appellant did not file his appeal until February 25,
2020, the administrative judge found his appeal untimely filed by 22 days. Id.
However, the administrative judge erroneously included weekend days in
calculating the deadline. Id.; see Ledbetter v. Department of Veterans Affairs ,
2022 MSPB 41, ¶ 7 n.2 (excluding weekends and Federal holidays when
calculating the filing deadline under 38 U.S.C. § 714(c)(4)(B)). Therefore, the
filing deadline for the present appeal was February 7, 2020, and the appellant’s
February 25, 2020 appeal was untimely filed by 12 business days. Nevertheless,
the administrative judge properly determined that the appeal was untimely filed
beyond the 10 business days statutory deadline.
The filing deadline prescribed by 38 U.S.C. § 714 cannot be waived for
good cause shown because there is no statutory mechanism for doing so.
Ledbetter, 2022 MSPB 41, ¶¶ 8-11. However, it may be subject to equitable
tolling or equitable estoppel. Id., ¶¶ 11-13. The doctrine of equitable tolling is a
rare remedy that is to be applied in unusual circumstances and generally requires
a showing that the appellant has been pursuing his rights diligently and some
extraordinary circumstances stood in his way , such as being induced or tricked by
her adversary’s misconduct into allowing the deadline to pass . Id., ¶¶ 12-13. The5
requirements for equitable estoppel are “even more stringent,” requiring
affirmative misconduct by the Government, and the doctrine does not extend to
mere “excusable neglect.” Id. (citations omitted).
On review, the appellant offers no explanation or reason for his untimely
appeal; instead, he maintains that his appeal was timely. PFR File, Tab 1 at 4-5,
7. He also offers no authority for his argument that the removal decision became
final only after the agency issued a step three grievance decision. Id. The
appellant’s argument goes against the plain text of 38 U.S.C. § 714(c)(4)(B),
which permits an appeal of a removal only if “made not later than 10 business
days after the date [of the] removal.” Although the union requested “an abeyance
for the [removal] decision until” the appellant could “be seen” at the step three
grievance level, the agency did not address the requested abeyance in the step
three grievance decision. IAF, Tab 7 at 20-21. The record is devoid of any
evidence suggesting that the agency granted the request or delayed the effective
date of the appellant’s removal. Moreover, as discussed briefly below, rather
than impacting the statutory filing deadline, it is well established that the filing of
a grievance constitutes a binding election of remedies that prevents an appellant
from later filing a Board appeal. See, e.g., see Kirkwood v. Department of
Education, 99 M.S.P.R. 437, ¶ 11 (2005) (observing that an appellant’s election
to first pursue a grievance generally precludes a subsequent Board appeal).
Therefore, we modify the initial decision to clarify the basis of the administrative
judge’s holding that the statutory filing deadline cannot be waived for good cause
shown and find additionally that the appellant is not entitled to waiver or tolling
of the filing deadline. ID at 3-4; see Ledbetter, 2022 MSPB 41, ¶ 13.
The appellant does not challenge on review the administrative judge’s
finding that the agency provided the appellant with notice of his appeal rights in
the removal decision and that the appellant elected to challenge his removal under
a negotiated grievance procedure prior to filing his Board appeal. ID at 3-4; PFR
File, Tab 1 at 3-13; IAF, Tab 7 at 17-18. An employee subjected to an adverse6
action such as a removal that is also covered by a negotiated grievance procedure
may either file a grievance concerning the matter or a Board appeal, but not both.
5 U.S.C. § 7121(e)(1); see Stroud v. Department of Veterans Affairs , 2022 MSPB
43, ¶¶ 7-10, 14-16 (finding that the election of remedies provisions set forth at
5 U.S.C. § 7121(e) apply to actions taken pursuant to 38 U.S.C. § 714).
Therefore, we affirm the administrative judge’s finding that the appellant made a
binding election to grieve his removal and is therefore precluded from filing a
Board appeal.
Accordingly, we deny the petition for review and affirm the initial decision
as modified.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain8
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420, 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 9
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Ortiz-Meneses_OmarNY-0752-20-0101-I-1_Final_Order.pdf | 2024-12-03 | null | NY-0752-20-0101-I-1 | NP |
328 | https://www.mspb.gov/decisions/nonprecedential/Rodriguez_AnthonyNY-0752-20-0235-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY RODRIGUEZ,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
NY-0752-20-0235-I-1
DATE: December 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony Rodriguez , Farmingville, New York, pro se.
Ariya McGrew , Esquire, and Joseph A. Blanton , New York, New York,
for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
On October 31, 2016, the appellant was appointed as a Contact
Representative with the Internal Revenue Service (IRS) in its Wage and
Investment Division.2 Initial Appeal File (IAF), Tab 8 at 18. On April 15, 2017,
he filed for an extension of time to file his 2016 Federal tax return, and he was
given until October 16, 2017, to file that return. IAF, Tab 1 at 5, Tab 9 at 4
(stipulation). The agency’s records indicated that the appellant did not file his
2016 Federal tax return until April 13, 2018, and it sought from the appellant an
explanation for the delay. IAF, Tab 5 at 90-91. The appellant asserted that he
filed timely with TurboTax, he provided a 6-digit TurboTax code as proof of his
timely filing, he explained that he learned “several months later” that TurboTax
did not file his return, and he filed his 2016 Federal tax return with his 2017
Federal tax return. IAF, Tab 5 at 77, 86-89.
2 Previously, the appellant was employed in the same position with the agency, but he
was removed in 2004 based on the same misconduct as alleged in this matter, and the
administrative judge sustained the removal action. Rodriguez v. Department of the
Treasury, MSPB Docket No. NY-0752-05-0072-I-1, Initial Decision (Mar. 30, 2005). It
does not appear that either party filed a petition for review of that initial decision, and it
became the Board’s final decision in that matter.2
The agency subsequently proposed to remove the appellant based on a
charge of willful failure to timely file his 2016 Federal tax return in violation of
section 1203(b)(8) of the IRS Restructuring and Reform Act of 1998 (RRA).3
IAF, Tab 5 at 68. The agency alternatively charged the appellant with failing to
timely file his 2016 Federal tax return in violation of, among other things,
5 C.F.R. § 2635.809. Id. After the appellant responded, id. at 49-66, the agency
determined that he violated section 1203(b)(8) and forwarded his case to the
Commissioner’s Review Board to determine whether mitigation of the penalty
was appropriate, id. at 45-47. The Review Board determined that mitigation was
inappropriate, and the agency subsequently sustained the charge and the penalty.
Id. at 38-42. Although the deciding official noted that a violation of section 1203
required mandatory removal, he additionally considered whether the misconduct
impaired the efficiency of the service and whether the removal penalty was
reasonable. Id. He found that the penalty of removal was appropriate and
promoted the efficiency of the service. Id. at 38-39.
The appellant filed a Board appeal, arguing that his failure to timely file his
2016 Federal tax returns was not willful. IAF, Tab 1 at 5. After holding a
hearing, IAF, Tab 13, Hearing Compact Disc (HCD), the administrative judge
sustained the removal, IAF, Tab 14, Initial Decision (ID) at 1-2. The
administrative judge found that the agency proved the charge of willful failure to
timely file a Federal tax return and failure to show reasonable cause for
noncompliance. ID at 6-13. In pertinent part, the administrative judge evaluated
the evidence and made credibility findings against the appellant. Id. Having
found that the appellant acted willfully in failing to file his 2016 Federal tax
return, the administrative judge further found that the removal penalty was
mandatory and the Board lacked the authority to review the penalty. ID at 13-14.
3 Pub. L. No. 105-206, § 1203, 112 Stat. 685 (Jul. 22, 1998) (codified at 26 U.S.C.
§ 7804 note).3
The administrative judge found in the alternative that the agency established
nexus and the penalty of removal was reasonable. ID at 14-18.
The appellant has filed a petition for review, and the agency has responded.
Petition for Review (PFR) File, Tabs 1, 3. The appellant argues that he did not
receive proper training on “ordinary business care” or the need to maintain proof
of successfully filing his Federal tax return. PFR File, Tab 1 at 4. He
additionally provides correspondence between the Chairman of the Senate
Committee on Finance and the IRS Commissioner regarding an April 2019 report
completed by the Treasury Inspector General for Tax Administration (TIGTA),
which determined that the IRS was inconsistent in determining willful
noncompliance and adjudicating section 1203 cases. Id. at 4, 6-16. The appellant
argues that the report from TIGTA demonstrates that he was subject to a disparate
penalty. Id. at 4.
DISCUSSION OF ARGUMENTS ON REVIEW
We discern no error with the administrative judge’s analysis of the charge.
As support for her finding, the administrative judge made extensive credibility
determinations against the appellant. ID at 7-13. The Board must defer to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on observing the demeanor of witnesses testifying at a hearing; the
Board may overturn such determinations only when it has “sufficiently sound”
reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed.
Cir. 2002); see Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1373
(Fed. Cir. 2016) (finding that the Board must defer to the administrative judge’s
demeanor-based credibility determination “[e]ven if demeanor is not explicitly
discussed”). The appellant does not specifically challenge these credibility
determinations or provide sufficiently sound reasons for overturning them; thus,
we see no reason to disturb them. 4
The appellant asserts that he is not a “digital native,” and there were 12
intervening years (from 2004-2016) during which the office environment
switched from paper-focused to electronic work flow. PFR File, Tab 1 at 4. He
also contends that he did not receive adequate training on “ordinary business
care” or the need to demonstrate proof of filing Federal tax returns. Id. These
arguments are not persuasive.
The appellant confirms on review that he was aware of being held to a
higher standard as an IRS employee. Id. Regardless of the 12-year gap in his
employment, he had general knowledge about tax liability from his service as a
Contact Representative, which required, among other things, “comprehensive”
knowledge of individual tax laws and the ability to answer questions involving
tax administration and tax processing regulatory requirements and procedures.
IAF, Tab 5 at 93-95; HCD 2 at 1:45 (testimony of the appellant). Moreover, he
stipulated that he received training and reminders annually regarding his
obligation to timely file and pay his Federal taxes. IAF, Tab 11 at 3.
Additionally, he had specific knowledge of section 1203(b)(8) of the RRA and the
need to retain proof of filing his Federal tax returns based on his prior removal
for the same reason in 2004. IAF, Tab 5 at 39; HCD 2 at 6:49 (testimony of the
appellant); Rodriguez v. Department of the Treasury , MSPB Docket No. NY-
0752-05-0072-I-1, Initial Decision (Mar. 30, 2005). Despite this knowledge, the
appellant did not seek help or in any way check that his 2016 Federal tax return
was properly filed. HCD 3 at 8:47, 10:44 (testimony of the appellant).
In Morrissey v. Department of the Treasury , 319 F. App’x 902, 903-04
(Fed. Cir. 2009), the appellant was removed for willfully understating her tax
liability pursuant to section 1203(b)(9) of the RRA.4 Similar to section 1203(b)
(8), which mandates removal of any employee for “willful failure to file any
return of tax . . . unless such failure is due to reasonable cause and not willful
4 The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds its reasoning persuasive. LeMaster v.
Department of Veterans Affairs , 123 M.S.P.R. 453, ¶ 11 n.5 (2016).5
neglect,” section 1203(b)(9) mandates the removal of any employee determined to
have committed “willful understatement of Federal tax liability, unless such
understatement is due to reasonable cause and not to willful neglect.” Id. The
court addressed Mrs. Morrissey’s contention that she did not willfully understate
her tax liability because, among other things, she was not adequately trained in
Schedule A or C deductions. Id. The court found that inadequate training was
not reasonable cause under section 1203(b)(9). Id. Importantly, the court noted
that Mrs. Morrissey, like the appellant, “had general knowledge about tax
liability,” “was aware of § 1203,” and “was aware that her job carried with it a
heightened responsibility to file accurate tax returns.” Id. We likewise reject the
appellant’s argument that his training—or lack thereof—is a basis to find that he
did not willfully fail to file his 2016 Federal tax return.
Having found that the appellant violated section 1203(b)(8) of the RRA, the
administrative judge correctly found that removal was mandatory unless the
Commissioner recommended mitigation, and such a decision was not reviewable
by the Board. ID at 13-14; see Ledbetter v. Department of the Treasury ,
102 M.S.P.R. 598, ¶ 9 (2006) (finding that, when the Commissioner’s Review
Board determined that the penalty of removal was appropriate for a violation of
section 1203(b)(9), the removal penalty was mandatory and not reviewable by the
Board). The record reflects that the Commissioner’s Review Board determined
that mitigation was inappropriate in this case. IAF, Tab 5 at 38. Accordingly, the
penalty of removal for violating 1203(b)(8) is not reviewable by the Board.5
We also affirm the administrative judge’s alternative finding regarding the
appellant’s failure to timely file his 2016 Federal tax return.6 ID at 14. The
5 We therefore do not consider the appellant’s evidence and argument relating to the
penalty here, but we discuss it below, infra pp. 7-8.
6 The regulation at 5 C.F.R. § 2635.809 states, in pertinent part, that “[e]mployees shall
satisfy in good faith their obligations as citizens, including all just financial obligations,
especially those such as Federal, State, or local taxes that are imposed by law.” “In
good faith” is defined as “an honest intention to fulfill any just financial obligation in a
timely manner.” Id.6
administrative judge also found that the agency proved a nexus between the
misconduct and the efficiency of the service and that the penalty of removal was
reasonable. ID at 14-18. The appellant does not appear to challenge the
administrative judge’s nexus analysis, and we affirm it herein.
The appellant’s “new” evidence and argument on review appears to be
related to the penalty factor involving the consistency of the penalty with those
imposed upon other employees for the same or similar offenses. PFR File, Tab 1
at 4, 6-16; see Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 (1981).
The Board generally will not consider evidence or argument raised for the first
time in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016); Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980). The evidence here, dated May 2 and
July 29, 2019, predates the appellant’s removal and Board appeal. PFR File,
Tab 1 at 6, 10; IAF, Tab 1.
However, the record reflects that this penalty factor was not explicitly
discussed in the proposal or decision letters or in the initial decision. IAF, Tab 5
at 38-43, 68-72; ID at 15-18. The Board has held that not all penalty factors will
be pertinent in every case. Douglas, 5 M.S.P.R. at 306. Nevertheless, the
consistency of the penalty is one of many relevant factors to consider, Singh v.
U.S. Postal Service , 2022 MSPB 15, ¶ 18, and we have considered the appellant’s
evidence on review. In Singh, the Board indicated that the relevant inquiry for
evaluating an allegation that the penalty was inconsistent with penalties assessed
to other employees who committed similar offenses was whether the agency
knowingly and unjustifiably treated employees differently. Id., ¶ 14. The April
2019 TIGTA report is not in the record, but it was described as finding that “the
IRS was inconsistent in both determining willful noncompliance within its own
workforce and in adjudicating section 1203 cases.” PFR File, Tab 1 at 6. This
description of the report, and the appellant’s evidence on review, does not7
demonstrate that the agency knowingly and unjustifiably treated employees
differently. We otherwise discern no error with the administrative judge’s
penalty analysis and affirm her conclusion that the removal penalty was
reasonable for the sustained misconduct. ID at 15-18.
NOTICE OF APPEAL RIGHTS7
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420, 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of9
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or10
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.8 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Rodriguez_AnthonyNY-0752-20-0235-I-1_Final_Order.pdf | 2024-12-02 | ANTHONY RODRIGUEZ v. DEPARTMENT OF THE TREASURY, MSPB Docket No. NY-0752-20-0235-I-1, December 2, 2024 | NY-0752-20-0235-I-1 | NP |
329 | https://www.mspb.gov/decisions/nonprecedential/Hollingsworth_Kourtney_DC-315H-21-0101-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KOURTNEY HOLLINGSWORTH,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBER
DC-315H-21-0101-I-1
DATE: November 26, 2024
THIS ORDER IS NONPRECEDENTIAL1
Amos Jones , Esquire, Washington, D.C., for the appellant.
Sean Kellem , Esquire, and Sonya M. Kaloyanides , Esquire,
Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction without
holding a hearing. For the reasons discussed below, 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).
petition for review, VACATE the initial decision, and REMAND the case to the
regional office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2Effective June 22, 2020, the agency appointed the appellant to the
competitive service position of GS-13 Equal Opportunity Specialist, subject to a
1-year probationary period. Initial Appeal File (IAF), Tab 7 at 32. On
October 22, 2020, while the appellant was still serving in her probationary period,
the agency notified her that she would be terminated from her position, effective
close of business, October 23, 2020, based on her failure to demonstrate the
qualifications necessary for her position. IAF, Tab 1 at 8, Tab 7 at 45-47, 49.
The appellant timely appealed this termination to the Board. IAF, Tab 1. On her
appeal form, she acknowledged that she was serving a probationary period at the
time of her termination. Id. at 1. She further alleged that the agency terminated
her for partisan political reasons, failed to comply with the requirements of
5 C.F.R. § 315.805, and retaliated against her for equal employment opportunity
(EEO) and whistleblowing activity. Id. at 6.
¶3Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction on finding
that she failed to nonfrivolously allege Board jurisdiction. IAF, Tab 1 at 2,
Tab 8, Initial Decision (ID) at 1, 9-10. Specifically, he found that she was not an
employee with appeal rights under 5 U.S.C. chapter 75 and she failed to make a
nonfrivolous allegation that the termination was based on marital status
discrimination, partisan political reasons, or conditions arising before her
appointment. ID at 5-9. Without an otherwise appealable action, the
administrative judge found that the Board also lacked jurisdiction over the
appellant’s other claims. ID at 9-10.
¶4The appellant has filed a timely petition for review, to which the agency has
responded. Petition for Review (PFR) File, Tabs 3, 5.2
ANALYSIS
¶5An individual in the competitive service who, like the appellant, has not
completed her probationary period has no statutory right of appeal to the Board.
Starkey v. Department of Housing and Urban Development , 2024 MSPB 6, ¶ 16;
Marynowski v. Department of the Navy , 118 M.S.P.R. 321, ¶ 4 (2012); see
5 U.S.C. § 7511(a)(1)(A). However, under certain limited circumstances, there
may be a regulatory right of appeal. As relevant here, an individual serving in his
probationary period “may appeal . . . a termination not required by statute which
he or she alleges was based on partisan political reasons or marital status.”
5 C.F.R. § 315.806. To be entitled to a hearing in such an appeal, an appellant
must make a nonfrivolous allegation of jurisdiction, that is an allegation of fact
that, if proven, would establish that his termination was based on partisan
political reasons. Starkey, 2024 MSPB 6, ¶ 16 n.4; Green-Brown v. Department
of Defense, 118 M.S.P.R. 327, ¶ 5 (2012). The appellant’s allegations must be
more than mere conjecture, and the appellant must provide supporting facts to
show that the allegation is not merely a pro forma pleading. Smirne v.
Department of the Army , 115 M.S.P.R. 51, ¶ 8 (2010). In determining whether
the appellant has made a nonfrivolous allegation of jurisdiction, the Board may
consider the agency’s documentary submissions; however, to the extent that the
agency’s evidence constitutes mere factual contradiction of the appellant’s
otherwise adequate prima facie showing of jurisdiction, the administrative judge
may not weigh the evidence and resolve conflicting assertions of the parties, and
the agency’s evidence may not be dispositive. Id.; Ferdon v. U.S. Postal Service ,
60 M.S.P.R. 325, 329 (1994).
¶6Discrimination based on “partisan political reasons” under 5 C.F.R.
§ 315.806(b) means discrimination based on affiliation with any political party or
candidate. Mastriano v. Federal Aviation Administration , 714 F.2d 1152,
1155-56 (Fed. Cir. 1983); Marynowski, 118 M.S.P.R. 321, ¶ 7. In adjudicating
appeals under 5 C.F.R. § 315.806, the Board and the U.S. Court of Appeals for3
the Federal Circuit have adapted the analytical framework from Title VII Federal
sector discrimination law, with the caveat that proof of Title VII discrimination
requires motivating-factor causation while discrimination under section 315.806
requires but-for causation. Starkey, ¶¶ 17-18. Thus, one of the ways an appellant
can prove discrimination under section 315.806 is by using the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04
(1973). The first step of that framework is for the appellant to establish a prima
facie case by showing that: (1) she is a member of a protected class; (2) she
suffered an adverse employment action; and (3) the unfavorable action gives rise
to an inference of discrimination. Wilson v. Small Business Administration ,
2024 MSPB 3, ¶ 16. If the appellant makes out a prima facie case, then the
burden shifts to the agency to provide a nondiscriminatory explanation for the
action. Id., ¶ 17. If the agency fails to give a nondiscriminatory explanation or
the appellant proves that the agency’s explanation was pretext, then the appellant
has proven that discrimination was a but-for cause of the action.
¶7We find that the appellant has made nonfrivolous allegations that could
support a finding that her termination was based on partisan political reasons
under a pretext theory. Specifically, the appellant’s allegation that, shortly before
her termination, a supervisor stated that her failure to support a particular
candidate in the presidential election would harm her professionally could give
rise to an inference that her termination was based on partisan political reasons.
Although the agency has provided a nondiscriminatory reason for her termination,
the appellant challenges the agency’s assertion that the appellant’s performance
was poor; specifically, she claims that the agency never informed her of
performance deficiencies prior to her termination. If true, the appellant’s claims
could support a finding that the agency’s stated reason for the termination was
pretext.
¶8In sum, the appellant has made allegations that partisan political
discrimination played a role in her termination, and those allegations, if proven,4
would establish Board jurisdiction. Accordingly, we remand this matter to the
administrative judge. The administrative judge shall develop the record, conduct
a hearing, and issue a new initial decision that identifies all material issues of fact
and law, summarizes the evidence, resolves issues of credibility, and includes the
administrative judge’s conclusions of law and his legal reasoning, as well as the
authorities on which that reasoning rests.2 See Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980).
ORDER
¶9For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
2 The administrative judge shall afford the parties the opportunity to engage in
discovery regarding the issues relevant to this appeal. 5 C.F.R. §§ 1201.71-1201.75. 5 | Hollingsworth_Kourtney_DC-315H-21-0101-I-1_Remand_Order.pdf | 2024-11-26 | KOURTNEY HOLLINGSWORTH v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. DC-315H-21-0101-I-1, November 26, 2024 | DC-315H-21-0101-I-1 | NP |
330 | https://www.mspb.gov/decisions/nonprecedential/Wine_MitchDA-4324-24-0192-I-1_Lack_of_Quorum_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MITCH WINE,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DA-4324-24-0192-I-1
DATE: November 26, 2024
Mitch Wine , Mountain View, Arkansas, pro se.
Alexander Lane Stimac and Vincent Alexander , Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris, Chairman
ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as barred by a prior settlement agreement. Vice Chairman
Limon and Member Kerner have recused themselves from consideration of this
case. Because there is no quorum to alter the administrative judge’s initial
decision, the initial decision now becomes the final decision of the Merit Systems
Protection Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be considered as
precedent by the Board in any other case. 5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of the final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of the final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this order. 5 U.S.C. § 7703(b)
(1)(A).
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of the final decision —including a disposition of your
discrimination claims —by filing a civil action with an appropriate U.S. district
court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar
days after you receive this order. 5 U.S.C. § 7703(b)(2); see Perry v. Merit
Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in
this case, and your representative receives this order before you do, then you must
file with the district court no later than 30 calendar days after your
representative receives this order. If the action involves a claim of discrimination3
based on race, color, religion, sex, national origin, or a disabling condition, you
may be entitled to representation by a court-appointed lawyer and to waiver of
any requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this order. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this order before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this order.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or4
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.2 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this order. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Wine_MitchDA-4324-24-0192-I-1_Lack_of_Quorum_Order.pdf | 2024-11-26 | MITCH WINE v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DA-4324-24-0192-I-1, November 26, 2024 | DA-4324-24-0192-I-1 | NP |
331 | https://www.mspb.gov/decisions/nonprecedential/Zanders_BrenaeSF-0752-24-0194-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRENAE ZANDERS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0752-24-0194-I-1
DATE: November 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Victor Alvarado , Redding, California, for the appellant.
Catherine Oh , Esquire, Palo Alto, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction. On petition for review,
the appellant indicates that she disagrees with the initial decision’s finding
concerning jurisdiction and attaches two copies of her DD Form 214 (DD-214), or
Certificate of Release or Discharge from Active Duty. Generally, we grant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2A petition for review of the initial decision was due no later than
February 26, 2024. Initial Appeal File, Tab 10, Initial Decision (ID) at 7. The
appellant filed her petition for review on February 27, 2024, at 2:56 p.m. Eastern
Standard Time. Petition for Review (PFR) File, Tab 1. She moved that the Board
accept the petition for review as timely filed because, despite contacting the
Board several times, she was not granted access to her e-Appeal account until
February 14, 2024, and on February 26, 2024, she was still unable to file
electronically. Id. at 5. She also provided evidence that she attempted to file her
petition for review on February 26, 2024, at 10:40 p.m. Pacific Standard Time but
was informed by the Board that the filing deadline had passed. Id. at 6. We find
that the appellant has established good cause for her 1-day delay, and the agency
has not shown any prejudice to its substantive rights. See 5 C.F.R. § 1201.114(g).
¶3We have reviewed the documentary evidence that the appellant attaches to
her petition for review, which is a DD-214, or Certificate of Release or Discharge
from Active Duty. PFR File, Tab 1 at 7-15. This document shows that the2
appellant served in active duty with the U.S. Air Force for almost 8 years, or from
August 1, 2006, until July 6, 2014. Id. However, as correctly explained in the
initial decision, prior military service cannot be applied to satisfy the completion
of her probationary/trial period or the current continuous service requirement
required under 5 U.S.C. § 7511(a)(1)(B)-(C). ID at 6. Thus, we find that the
document is not of sufficient weight to warrant an outcome different from that of
the initial decision. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349
(1980).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Zanders_BrenaeSF-0752-24-0194-I-1_Final_Order.pdf | 2024-11-26 | BRENAE ZANDERS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-24-0194-I-1, November 26, 2024 | SF-0752-24-0194-I-1 | NP |
332 | https://www.mspb.gov/decisions/nonprecedential/Chukwuani_Okwudili_F_CH-1221-21-0033-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DR. OKWUDILI FRANCIS
CHUKWUANI,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-21-0033-W-1
DATE: November 26, 2024
THIS ORDER IS NONPRECEDENTIAL1
Dr. Okwudili Francis Chukwuani , Solon, Ohio, pro se.
Nicholas E. Kennedy , Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction . For
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is employed as a Primary Care Physician at the Veterans
Affairs Medical Center in Chillicothe, Ohio. Initial Appeal File (IAF), Tab 1
at 1. On October 21, 2020, he filed an appeal with the Board alleging that the
agency retaliated against him by detailing him and placing him on a summary
suspension because of disclosures he made to individuals in his Regional Veteran
Integrated Service Network (VISN 10), in his equal employment opportunity
(EEO) complaint, and in completed annual all-employee surveys concerning an
abuse of authority, unsafe work practices, and a hostile work environment. Id.
at 5. The appellant also provided a document titled “summary of events in
chronological sequence” identifying a number of purported instances of
wrongdoing committed against him by agency officials during the period from
July 18, 2019, through the date of filing of his Board appeal. Id. at 14-18.
Additionally, the appellant provided an October 20, 2020 close-out letter from the
Office of Special Counsel (OSC) wherein OSC indicated that it was closing its
investigation into the appellant’s allegations that he was subjected to a retaliatory
detail and a summary suspension of his privileges for filing an EEO complaint, an
agency grievance, and a previous OSC complaint. Id. at 20. The appellant
requested a hearing on the matter. Id. at 2.
The administrative judge issued a jurisdictional order wherein he explained
the circumstances under which the Board has jurisdiction to adjudicate IRA
appeals and ordered the appellant to file specific evidence and argument
regarding jurisdiction. IAF, Tab 3 at 1-8. The appellant submitted a number of
filings in response to the administrative judge’s order, see IAF, Tabs 6, 9-11, 15,
and the agency moved to dismiss the appeal for lack of jurisdiction, IAF, Tab 8.2
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 17, Initial Decision (ID) at 2, 8. The administrative judge determined that
although the appellant had described a number of allegations of a hostile work
environment, including being detailed and having his clinical privileges
suspended, he had failed to identify any protected disclosures that prompted these
purportedly retaliatory actions. ID at 6.
To the extent the appellant was relying on his EEO complaint in alleging
that the agency discriminated against him as the basis for his protected disclosure,
the administrative judge determined that it did not qualify as a protected
disclosure under section 2302(b)(8) because it did not involve a violation of a
law, rule, or regulation, and instead pertained only to matters of discrimination
covered under section 2302(b)(1)(A). ID at 6-7. Additionally, with regard to the
2017 through 2020 annual all-employee surveys the appellant identified as
another potential source of his disclosures, the administrative judge determined
that the appellant’s statement that his responses in the surveys were intended to
“constructively comment on what can improve the system” were vague and
insufficiently detailed and did not identify any of the categories of wrongdoing
covered under section 2302(b)(8). ID at 7. Consequently, the administrative
judge concluded that the appellant failed to meet his burden of making a
nonfrivolous allegation that he had made a protected disclosure under 5 U.S.C.
§ 2302(b)(8). ID at 8.
The appellant has filed a petition for review disputing the administrative
judge’s jurisdictional finding. Petition for Review (PFR) File, Tab 1. The
agency has not filed a response to the appellant’s petition for review.3
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in an IRA appeal, an appellant must show by
preponderant evidence2 that he exhausted his remedies before OSC and make
nonfrivolous allegations of the following: (1) he made a disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). Corthell v. Department of
Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by
Requena v. Department of Homeland Security , 2022 MSPB 39. 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). Any doubt or ambiguity as to whether the
appellant made nonfrivolous jurisdictional allegations should be resolved in favor
of affording the appellant a hearing . Grimes v. Department of the Navy ,
96 M.S.P.R. 595, ¶ 12 (2004). Whether the appellant’s allegations can be proven
on the merits is not part of the jurisdictional inquiry. Lane v. Department of
Homeland Security , 115 M.S.P.R. 342, ¶ 12 (2010).
At the outset, we must note that our analysis is constrained by the
appellant’s jurisdictional pleadings. See IAF, Tabs 6, 9, 15. The administrative
judge gave explicit instructions that the appellant was to provide specific
information concerning his protected disclosures and activities. IAF, Tab 3
at 7-8. Instead, the appellant’s jurisdictional pleadings are at times difficult to
follow. A party before the Board ignores an administrative judge’s order at his
2 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).4
own peril. Mendoza v. Merit Systems Protection Board , 966 F.2d 650, 653-54
(Fed. Cir. 1992) (en banc). Nevertheless, we have given the appellant’s pleadings
a fair reading.
The appellant nonfrivolously alleged that he made a protected disclosure under
5 U.S.C. § 2302(b)(8).
A protected disclosure is a disclosure that an employee reasonably believes
evidences any violation of any law, rule, or regulation, or gross mismanagement,
a gross waste of funds, an abuse of authority, or a substantial and specific danger
to public health or safety. Mudd v. Department of Veterans Affairs , 120 M.S.P.R.
365, ¶ 5 & n.3 (2013); see 5 U.S.C. § 2302(b)(8). The proper test for determining
whether an employee had a reasonable belief that his disclosures were protected
is whether a disinterested observer with knowledge of the essential facts known to
and readily ascertainable by the employee could reasonably conclude that the
actions evidenced any of the conditions set forth in 5 U.S.C. § 2302(b)(8). Mudd,
120 M.S.P.R. 365, ¶ 5. The disclosures must be specific and detailed, not vague
allegations of wrongdoing. Salerno v. Department of the Interior , 123 M.S.P.R.
230, ¶ 6 (2016). In determining whether an appellant has made a nonfrivolous
allegation of a disclosure, the Board may consider matters incorporated by
reference, matters integral to the appellant’s claim, and matters of public record.
Hessami, 979 F.3d at 1369 n.5.
In the initial decision, the administrative judge found that the appellant
failed to nonfrivolously allege that he made any protected whistleblowing
disclosures. ID at 8. On review, the appellant reasserts his claim that he made
protected disclosures under section 2302(b)(8) concerning an abuse of authority,
unsafe work practices, and a hostile work environment to members of his
supervisory chain, in his EEO complaint, and in his all-employee surveys. PFR
File, Tab 1 at 4-5. We turn now to consider each of the appellant’s arguments. 5
The appellant failed to nonfrivolously allege that he made any protected
disclosures in the all-employee surveys.
In his initial appeal and his jurisdictional response, the appellant alleged
that he complained about abuse of authority, unsafe work practices, and a hostile
work environment in the agency’s 2018, 2019, and 2020 all-employee surveys.
IAF, Tab 1 at 5, 18, Tab 6 at 5-6, 8. In the initial decision, the administrative
judge concluded that the appellant failed to make a nonfrivolous allegation that
he disclosed any of the types of wrongdoing described in 5 U.S.C. § 2302(b)(8) in
connection with his all-employee survey submissions, noting that aside from
generally stating that he completed the surveys every year beginning in 2017 in
an attempt to “constructively comment on what can improve the [agency’s]
system,” the appellant failed to identify any specific deficiencies in the agency’s
existing procedures that he identified in his disclosures, so his allegations were
little more than vague allegations of wrongdoing lacking in any specific detail.
ID at 7.
We agree. In describing the nature of his purported disclosures in the
all-employee surveys, the appellant does not provide any degree of detail, stating
only that he completed the surveys for each of the years from 2017 through 2020
without providing any specific information about the nature of the allegations
contained in the surveys or identifying when he completed each of the surveys.
See IAF, Tab 6 at 5-6. He also does not provide copies of the submitted surveys
with his jurisdictional pleadings, and the pages that he cites regarding the dates
he submitted the surveys do not contain the identified information. Id. at 5 n.9, 6
nn. 16, 19 (citing id. at 261, 287). The only reference the appellant makes to any
purported disclosure in an all -employee survey is his allegation that he addressed
the “abnormal circumstances” surrounding his August 2020 detail, but he does
not provide a copy of the 2020 survey (the only survey that could have been
completed after the appellant’s detail), nor does he identify when he completed
the survey or provide any other information about the nature of his purported6
disclosure. Id. at 8. Finally, the only other material in the jurisdictional
pleadings referencing the all-employee surveys include a copy of email
instructions for completing the 2019 survey and an August 28, 2017 email
response providing the appellant with instructions for how to complete the 2017
survey. See id. at 264, 290.
As previously noted, disclosures must be specific and detailed, and vague,
conclusory, and pro forma allegations do not meet the nonfrivolous allegation
standard needed to establish the Board’s jurisdiction over an IRA appeal. See
Salerno, 123 M.S.P.R. 230, ¶ 6; El v. Department of Commerce , 123 M.S.P.R. 76,
¶ 6 (2015), aff’d, 663 F. App’x 921 (Fed. Cir. 2016). Accordingly, we conclude
that the appellant failed to nonfrivolously allege that he made a protected
disclosure under 5 U.S.C. § 2302(b)(8) in connection with his completion of the
agency’s 2017, 2018, 2019, and 2020 all-employee surveys.
The appellant failed to exhaust his purported disclosure concerning the
agency’s policy governing the use of Omnicell.
Although not addressed in the initial decision, we take this opportunity to
discuss the appellant’s purported disclosure regarding the agency’s use of
Omnicell systems. In his jurisdictional filing, the appellant identified one of his
disclosures as a complaint he made about “some unprofessional attitudes in the
use of Omnicell in June 2019,” and in a footnote discussing this purported
disclosure he directs the reader to page 262 of the attachments to his
jurisdictional filing. IAF, Tab 6 at 5-6, n.15. Page 262 of the pleading is a copy
of a March 15, 2020 email and does not include any references to “Omnicell,” but
page 265 contains a copy of a July 5, 2019 email chain with the subject heading
“RE: Omnicell,” in which the appellant responds to a July 3, 2019 message from
another agency employee clarifying that providers are instructed to retrieve and
administer medications from Omnicell themselves after verifying an order. IAF,
Id. at 262, 265. In his response email, the appellant expresses his disagreement
with “the plan to have physician/providers to be obtaining medications from the7
Omnicell” for a number of reasons, including that “it is a distraction for
physicians to leave his patient in the room to go and scan through the Omnicell in
search of medications,” noting that it takes time away from the physician’s work
for veterans, is unfair for the veterans and not in their best interest, and stating
his view that “[t]he safety of the patient is not enhanced by the physician
obtaining the medications from the Omnicell.” Id. at 265. In his petition for
review, the appellant cites this same language from his narrative pleading and
provides an example of an “adverse outcome” that might result for a patient while
a physician absents himself to go to an Omnicell cabinet. PFR File, Tab 1 at 7-8.
The Board has previously found that disclosures raising concerns related to
patient neglect or substandard levels of care are protected. See, e.g., Parikh v.
Department of Veterans Affairs , 116 M.S.P.R. 197, ¶ 15 (2011) (determining that
disclosing medical errors such as delays in treatment, misdiagnoses, and
placement of patients in inappropriately low levels of care could constitute
disclosures of a substantial and specific danger to public health and safety);
Peterson v. Department of Veterans Affairs , 116 M.S.P.R. 113, ¶ 12 (2011)
(finding that the appellant nonfrivolously alleged that she disclosed a substantial
and specific danger to public health and safety when she disclosed that ongoing
improper patient care and procedures jeopardized and adversely affected the
health and safety of patients); Poster v. Department of Veterans Affairs ,
92 M.S.P.R. 501, ¶¶ 3, 8 (2002) (concluding that an appellant disclosed a likely
and imminent harm to public health and safety in reporting that patients were
receiving inadequate and substandard medical care), aff’d, 71 F. App’x 851 (Fed.
Cir. 2003). Construing the appellant’s jurisdictional pleading in the most
favorable light with the understanding that at the jurisdictional stage, an appellant
need only provide sufficient specificity and substantiality to support a reasonable
belief that he disclosed evidence of one of the categories of wrongdoing described
in section 2302(b)(8), the appellant could have reasonably believed that he was
disclosing a substantial and specific danger to public health and safety when he8
challenged the agency’s prevailing policy requiring that physicians leave patients
unattended in order to retrieve and dispense medications from Omnicell cabinets.
Turning to the question of exhaustion of this potential disclosure, the
Board, in Chambers v. Department of Homeland Security , 2022 MSPB 8,
¶¶ 10-11, clarified the substantive requirements of 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 were previously raised with OSC. However, appellants may give a
more detailed account of their whistleblowing activities before the Board than
they did to OSC. Id. Appellants may 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 responses to OSC
referencing the amended allegations. Id. 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 appeal. Id. Finally, appellants must prove exhaustion with OSC by
preponderant evidence, not just present nonfrivolous allegations of exhaustion.
5 C.F.R. § 1201.57(c)(1).
Although the appellant did not provide a copy of the complaint that he
submitted to OSC, in discussing the purported Omnicell disclosure in the
narrative section of his jurisdictional response, the appellant states only that he
disclosed his concerns about the procedures for using Omnicell to “the primary
care leadership, the acting chief of staff[,] and members of my team,” without any
mention of reporting this disclosure to OSC. IAF, Tab 6 at 6. Additionally, with
his jurisdictional pleading, the appellant provided copies of a preliminary
response and an additional letter from OSC stating its intention to close out his
complaint, annotated with the appellant’s responses to the OSC attorney. IAF,9
Tab 6 at 155-59, 219-20. Neither of OSC’s letters mention the appellant’s
purported Omnicell disclosure, nor do the appellant’s annotated responses, even
though they do mention a number of his other purported disclosures and
activities. See id. Consequently, we find that the appellant has failed to
demonstrate that he exhausted his administrative remedies regarding his concerns
about the safety of the agency’s policy governing the use of Omnicell because
there is no evidence in the record that he reported the content of this purported
disclosure to OSC or that OSC investigated this disclosure.
The appellant nonfrivolously alleged that he was subjected to an abuse of
authority when he was detailed to the wound care unit in August 2020.
In his jurisdictional pleading, one of the disclosures the appellant identifies
is his claim that his supervisor’s decision to terminate his service in the primary
care unit and detail him to the wound care unit on August 12, 2020, constituted an
“abuse of power and discretion,” and he challenges the “abnormal circumstances”
surrounding the decision to abruptly detail him, despite the fact that there “was
no allegation of professional incompetence or adverse peer review” against him.
IAF, Tab 6 at 7-8. In his petition for review, the appellant restates his claim that
his service in the primary care unit was terminated “under the guise of a
temporary detail to wound care services,” and states his belief that this detail was
an “abuse of authority because there was no justification and it was not in the best
interest of veterans.” PFR File, Tab 1 at 9.
One of the categories of wrongdoing specified in section 2302(b)(8) is an
abuse of authority. See 5 U.S.C. § 2302(b)(8)(A)(ii). An abuse of authority
occurs when there is an arbitrary or capricious exercise of power by a Federal
official or employee that adversely affects the rights of any person or results in
personal gain or advantage to himself or preferred other persons. Pasley v.
Department of the Treasury , 109 M.S.P.R. 105, ¶ 18 (2008). There is no de
minimis standard for abuse of authority as a basis of a protected disclosure. Id.
Furthermore, the Board has recognized that harassment or intimidation of other10
employees may constitute an abuse of authority. See, e.g., Ayers v. Department
of the Army, 123 M.S.P.R. 11, ¶ 14 (2015); Pasley, 109 M.S.P.R. 105, ¶ 18. A
supervisor’s use of influence to denigrate staff members in an abusive manner and
to threaten the careers of staff members with whom he disagrees may also
constitute an abuse of authority. Pasley, 109 M.S.P.R. 105, ¶ 18.
Although the administrative judge generally considered the appellant’s
allegations concerning his detail to the wound care unit within the context of his
hostile work environment claim, he did not separately consider the appellant’s
argument that he was disclosing an abuse of authority by challenging the manner
in which he was detailed. ID at 6. In explaining the basis for his claim that the
detail to wound care services constituted an abuse of authority in his annotated
response to OSC’s preliminary decision, the appellant stated that although the
supervisor who issued the detailing memorandum suggested that the detail was
for the appellant’s own safety, it was his belief that the detail was “a covert way
of removing me from primary care and removing me from my work location.”
IAF, Tab 6 at 156-57. In email exchanges the appellant included in his
jurisdictional response, he responded to the supervisor who issued the detailing
memorandum by stating his belief that the detail was not in the best interest of his
patients, was not in his own best interest, was incompatible with his personal
philosophy concerning providing care, and would not enhance his outcome, and
alleging that the detail “serves only the interest of those who have been
attempting to bully me out of the service.” Id. at 151-52. Giving the appellant’s
allegations the most charitable possible reading and with a recognition that he is
proceeding pro se, under these circumstances, we find that he made a
nonfrivolous allegation that he disclosed a matter that a reasonable person in his
position could believe evidenced an abuse of authority when agency officials
decided to detail him without regard for the impact the decision would have on
patient care outcomes. Ayers, 123 M.S.P.R. 11, ¶ 14; Pasley, 109 M.S.P.R. 105,11
¶ 18; see Miles v. Department of Veterans Affairs , 84 M.S.P.R. 418, ¶ 6 (1999)
(explaining that the Board construes pro se pleadings liberally).
Regarding exhaustion of this purported disclosure with OSC, in his
response to the jurisdictional order, the appellant stated that he “immediately
disclosed” this purported disclosure to OSC. IAF, Tab 6 at 7. Additionally, he
provided copies of correspondences regarding the detail that were forwarded to
the OSC attorney assigned to his case on the day he was detailed, and in his
response to OSC’s preliminary determination letter stating its intention to close
out his complaint, he identifies this disclosure, stating that “the process of
detailing [me] demonstrates flagrant abuse of authority and failure to follow the
due process of the law . . . .” Id. at 133-34, 157. Consequently, we find that the
appellant exhausted his administrative remedies regarding this disclosure.
The appellant nonfrivolously alleged that he engaged in protected whistleblowing
activity under 5 U.S.C. § 2302(b)(9).
The appellant did not make a nonfrivolous allegation that he engaged in
protected activity in connection with his EEO complaint.
Regarding the appellant’s allegation that agency officials retaliated against
him for his protected activity of filing an EEO complaint, the administrative
judge determined that the appellant’s EEO complaint did not constitute protected
activity because it pertained only to matters of discrimination covered under
5 U.S.C. § 2302(b)(1)(A) and did not address matters covered under
section 2302(b)(8). ID at 6-7. Protected activity under 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 [5 U.S.C. § 2302(b)(8)].” 5 U.S.C. § 2302(b)(9)(A)(i) (emphasis
added). Thus, an EEO complaint may be protected under 5 U.S.C.
§ 2302(b)(9)(A)(i) if the complaint sought to remedy a violation of 5 U.S.C.
§ 2302(b)(8). Bishop v. Department of Agriculture , 2022 MSPB 28, ¶¶ 15-16.12
In his jurisdictional pleading, the appellant provided a summary of his
informal EEO complaint, a copy of his formal EEO complaint, email
correspondences with the agency’s Office of Resolution Management (ORM)
regarding his complaint, copies of summaries of testimony from agency officials
in connection with his EEO complaint, his rebuttal statement in response to
testimony from agency officials, ORM’s formal complaint acceptance, several
complaint amendment notices, and a notice referring his formal complaint to
counseling. IAF, Tab 6 at 13-43, 70-128, 275, 335-39. In his EEO complaint, the
appellant alleged that he had been subjected to harassment and a hostile work
environment based on his race and national origin and in reprisal for his EEO
activity when agency officials took a number of actions against him, including
reprimanding and suspending him, canceling his clinics, confiscating his Personal
Identify Verification card, deleting images from his camera, preventing him from
seeing patients, charging him with AWOL and denying his leave requests, and
changing his duty assignments. Id. at 36-39, 336-37, 339.
These instances involve the appellant’s general workplace disagreements
with his supervisors and other agency officials, and none of these incidents
involve his challenge of a violation of 5 U.S.C. § 2302(b)(8).3 As the
administrative judge correctly observed, such a complaint is not directed at
remedying a violation of any of the categories of wrongdoing identified in
section 2302(b)(8), and thus would not constitute protected activity under
section 2302(b)(9)(A)(i). See Young v. Merit Systems Protection Board , 961 F.3d
1323, 1329 (Fed. Cir. 2020) (stating that allegations of retaliation for exercising a
Title VII right do not fall within the scope of section 2302(b)(8)); Bishop,
2022 MSPB 28, ¶16 (explaining that a disclosure of one of the categories of
3 Additionally, in an email correspondence with OSC, the appellant seemingly
acknowledges that the nature of his EEO complaint was limited to allegations of
discrimination and reprisal for exercising his rights under Title VII, stating “I did not
contact the OSC for discrimination – I have already filed multiple EEOs (x 3) for
discrimination on the basis of nationality of origin and for adverse working
environment.” IAF, Tab 6 at 160. 13
wrongdoing specified in section 2302(b)(8)(A) without any allegation of
whistleblower reprisal is insufficient to constitute a nonfrivolous allegation of
protected activity under section 2302(b)(9)(A)(i)). Consequently, we agree with
the administrative judge’s conclusion that the appellant failed to nonfrivolously
allege that he engaged in protected whistleblowing activity with respect to his
EEO complaint.
The appellant did not make a nonfrivolous allegation that he engaged in
protected activity in connection with his May 2019 grievance.
Although not specifically addressed in the initial decision, in his
jurisdictional response, the appellant identified a formal grievance in May 2019
as one of his purported protected disclosures or activities. IAF, Tab 6 at 6. The
appellant has not provided a copy of the grievance or explained the subject matter
of the grievance other than to say that it concerned a reprimand he received in
April 2019. See id. at 6 n.22 (citing id. at 88) (noting that the appellant was
issued a letter of reprimand in April 2019), 9 n.37. The only other information in
the record referencing the reprimand that appears to be the source of the
appellant’s grievance are in his EEO complaint materials, which identify that he
was issued a proposed reprimand on April 5, 2019, and reprimanded on April 26,
2019, and a July 22, 2019 email exchange from a union official stating that the
union could not assist the appellant in pursuing the grievance. Id. at 21, 37, 267.
Based on the existing record, we cannot discern the nature of the
appellant’s grievance. Therefore, we conclude that he has failed to
nonfrivolously allege that his May 2019 grievance was in regard to remedying a
violation of 5 U.S.C. § 2302(b)(8), which is a requirement for the Board to have
jurisdiction pursuant to 5 U.S.C. §§ 1221(a), 2302(b)(9)(A)(i). See Mudd,
120 M.S.P.R. 365, ¶¶ 2, 7 (finding that the substance of the appellant’s grievance
did not involve remedying a violation of subsection 2302(b)(8) and the
administrative judge correctly determined that the Board lacks jurisdiction to
consider such allegations in the context of an IRA appeal).14
The appellant made a nonfrivolous allegation that he engaged in protected
activity through his disclosure of information to OSC and showed that he
exhausted his administrative remedies regarding this activity.
Under 5 U.S.C. § 2302(b)(9)(C), an employee engages in protected activity
when he cooperates with or discloses information to an agency’s Office of the
Inspector General (OIG) and OSC. Fisher v. Department of the Interior ,
2023 MSPB 11, ¶ 8. Disclosures of information to an agency’s OIG or to OSC
are protected, regardless of their content, as long as such disclosures are made “in
accordance with applicable provisions of law.” Id. (explaining that, under the
broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), any disclosure of
information to OIG is protected regardless of its content as long as such
disclosure is made in accordance with applicable provisions of law).
In the initial decision, the administrative judge did not consider the
appellant’s allegation that he engaged in protected activity under 5 U.S.C.
§ 2302(b)(9)(C) when he cooperated with or disclosed information to OSC. For
the following reasons, we conclude that this was error and find that the appellant
made a nonfrivolous allegation that he engaged in protected activity when he
disclosed information to OSC and that he exhausted his administrative remedies
with OSC regarding this claim.
In the section of his jurisdictional pleading discussing his purported
disclosures and the dates that he made those disclosures, the appellant identified
his OSC complaint as one of his protected disclosures or activities. IAF, Tab 6
at 6. Additionally, in its preliminary response to the appellant’s complaint, OSC
identified the appellant’s allegation that his temporary detail “was instigated in
retaliation for protected activity, namely, [his] previous OSC complaint . . .” as
one of the matters under investigation and analyzed this allegation as a possible
violation of 5 U.S.C. § 2302(b)(9). IAF, Tab 6 at 219. OSC also identified the
OSC file number for a prior complaint filed by the appellant, which differs from
the file number associated with the OSC complaint at issue in the instant IRA15
appeal. Compare id. at 219 (identifying the prior OSC file number as MA-19-
4798), with IAF, Tab 1 at 20 (identifying the OSC file number for the OSC
complaint at issue in this IRA appeal as MA-20-1680 in the OSC’s close-out
letter).
Although the appellant has not provided a copy of his prior OSC complaint
or provided any information concerning the nature of his prior disclosure to OSC,
as previously noted, disclosures to OSC are protected without regard for the
content of such disclosures. Fisher, 2023 MSPB 11, ¶ 8. Accordingly, we find
that the appellant made a nonfrivolous allegation that he engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(C) through his prior disclosure of
information to OSC. Further, insofar as the appellant provided correspondence
with OSC evincing that he raised this protected activity with OSC and that OSC
investigated his claim, we also find that he showed by preponderant evidence that
he exhausted his administrative remedies regarding the same. See IAF, Tab 1
at 20, Tab 6 at 155-59, 219 -20.
The appellant made a nonfrivolous allegation of two personnel actions under
5 U.S.C. § 2302(a), and he showed that he exhausted his administrative remedies
regarding both personnel actions.
The term “personnel action” is defined at 5 U.S.C. § 2302(a)(2)(A) and
covers a variety of agency actions, including significant changes in duties,
responsibilities, and working conditions. 5 U.S.C. § 2302(a)(2)(A)(xii).
Although the appellant’s pleadings are difficult to follow, in his jurisdictional
response, he alleged “[t]hat the recent actions which the agency took or
threatened to take after all the above disclosures include the following”: his
detail to wound care services and termination of his practice in primary care on
August 12, 2020, the summary suspension of his privileges on October 2, 2020,
the suspension of the renewal of his credentials also on October 2, 2020, and
generally being subjected to a hostile work environment. IAF, Tab 6 at 7-8. The
appellant then states his belief that “all the above personnel actions” were due to16
his disclosures. Id. at 8. In another pleading, the appellant alleges that on
August 18, 2020, agency leadership denied him access to all patients, suspended
him from completing clinical work, and effectively denied him from completing
telework by blocking his access to patients. IAF, Tab 1 at 17-18. Consequently,
based on our best interpretation of the appellant’s pleadings, he appears to be
alleging the following personnel actions: (1) his placement on a detail on
August 12, 2020; and (2) a significant change in his duties, responsibilities, and
working conditions based on the agency’s imposing a summary suspension of his
clinical privileges, denying his request for recredentialing of his privileges on
October 2, 2020, and, on August 18, 2020, denying him access to patients,
preventing him from engaging in clinical work, and instructing him to telework
without granting him access to telework capabilities.
The appellant made a nonfrivolous allegation that the agency detailed him
to the wound care unit on August 12, 2020, and showed that he exhausted
this claim with OSC.
The definition of a “personnel action” also includes “a detail, transfer, or
reassignment.” 5 U.S.C. § 2302(a)(2)(A)(iv). Here, the appellant provided a
copy of the August 12, 2020 memorandum detailing him to the wound care
services unit. IAF, Tab 1 at 7. Accordingly, we find that he has made a
nonfrivolous allegation of a personnel action under 5 U.S.C. § 2302(a)(2)(A)(iv).
See Miles, 84 M.S.P.R. 418, ¶ 6. Additionally, in his annotated response to
OSC’s preliminary determination letter, he specifically identified his detail to the
wound care unit as one of the allegedly retaliatory personnel actions he was
subjected to, and OSC identified it as one of the actions it was investigating.
IAF, Tab 1 at 20, Tab 6 at 156-57; see id. at 133-34, 150-54 (forwarding emails to
the OSC attorney regarding the appellant’s placement on the detail).
Consequently, we also find that he demonstrated that he exhausted his
administrative remedies regarding this personnel action.17
The appellant made a nonfrivolous allegation that he was subjected to a
significant change in his working conditions and showed that he exhausted
this personnel action with OSC.
As relevant here, the definition of “personnel action” includes “any . . .
significant change in duties, responsibilities, or working conditions.” 5 U.S.C.
§ 2302(a)(2)(A)(xii). The Board has found that, although “significant change”
should be interpreted broadly to include harassment and discrimination that could
have a chilling effect on whistleblowing or otherwise undermine the merit
system, only agency actions that, individually or collectively, have practical
consequences for an appellant constitute a personnel action covered by
section 2302(a)(2)(A)(xii). Skarada v. Department of Veterans Affairs ,
2022 MSPB 17, ¶¶ 15-16. To this end, the agency’s actions must have a
significant effect on the overall nature and quality of the appellant’s working
conditions, duties, or responsibilities. Id.
As noted above, the appellant alleged in his filings that agency personnel
took a number of deliberate actions that impacted his working conditions from
August 2020 through October 2020, including denying him access to patients and
clinical services, obstructing his ability to effectively telework, suspending his
clinical privileges, blocking his biennial privileges recredentialing, and generally
subjecting him to a hostile work environment, and he reiterates these allegations
on review. IAF, Tab 1 at 17-18; Tab 6 at 7-8; PFR File, Tab 1 at 9-10. We find
that these contentions, if accepted as true, collectively amount to a nonfrivolous
allegation of a significant change in working conditions. See Skarada,
2022 MSPB 17, ¶ 18 (concluding that the appellant’s allegations that agency
personnel harassed him, subjected him to a hostile work environment, subjected
him to multiple investigations, accused him of “fabricating data” and of a Privacy
Act violation, refused his request for a review of his position for possible
upgrade, yelled at him, and failed to provide him the support and guidance needed
to successfully perform his duties amounted to a nonfrivolous allegation of a18
significant change in his working conditions); see also Rumsey v. Department of
Justice, 120 M.S.P.R. 259, ¶ 23 (2013) (noting that canceling a telework
agreement can constitute a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(xii) to the extent that it constitutes a significant change in
working conditions). Additionally, insofar as the appellant provided
documentation demonstrating that he raised these claims with OSC, we find that
he showed that he exhausted his administrative remedies with respect to this
personnel action. See IAF, Tab 1 at 20, Tab 6 at 155-59, 219-20.
The appellant made a nonfrivolous allegation that his disclosure and protected
activity were a contributing factor in some of the personnel actions.
A protected disclosure is a contributing factor if it affects an agency’s
decision to take a personnel action. Dorney v. Department of the Army ,
117 M.S.P.R. 480, ¶ 14 (2012). One way that an appellant may satisfy the
contributing factor criterion at this stage is through the knowledge/timing test,
whereby an employee nonfrivolously alleges that the official taking the personnel
actions at issue knew of the appellant’s protected disclosure/activity and the
personnel action occurred within a period of time such that a reasonable person
could conclude that the protected disclosure/activity was a contributing factor in
the personnel actions at issue. 5 U.S.C. § 1221(e)(1)(A)-(B); Carey v.
Department of Veterans Affairs , 93 M.S.P.R. 676, ¶ 11 (2003). An appellant may
satisfy the knowledge prong of the test by proving that the official taking the
action had constructive knowledge of the protected disclosures, i.e., that an
individual with actual knowledge of the disclosure influenced the official accused
of taking the retaliatory action. Bradley v. Department of Homeland Security ,
123 M.S.P.R. 547, ¶ 15 (2016).19
The appellant nonfrivolously alleged that his disclosure that his detail to
the wound care unit constituted an abuse of authority was a contributing
factor in one personnel action.
With respect to the appellant’s disclosure of a potential abuse of authority
regarding the circumstances surrounding his placement on a detail to the wound
care unit on August 12, 2020, although we noted above that the detail is a
personnel action as defined in 5 U.S.C. § 2302(a)(2)(A)(iv), it is axiomatic that
the appellant’s disclosure of the abusive nature of his detail could not have itself
contributed to the agency’s decision to place him on the detail. See Johnson v.
Department of Justice , 104 M.S.P.R. 624, ¶ 26 (2007) (determining that
disclosures made after the personnel actions at issue could not have been
contributing factors in those personnel actions and do not support a nonfrivolous
allegation that the disclosures were contributing factors in the personnel actions).
Consequently, the only personnel action that this disclosure could have
contributed to is the appellant’s claim that agency officials subjected him to a
significant change in his working conditions by denying him access to patients
and clinical services, obstructing his ability to effectively telework, suspending
his clinical privileges, blocking his biennial privileges recredentialing, and
generally subjecting him to a hostile work environment during the period from
August 2020 through October 2020. See IAF, Tab 1 at 17-18; Tab 6 at 7-8.
Regarding the knowledge prong of the test, in his jurisdictional filing the
appellant alleged that he “immediately disclosed” his allegation that his
placement on a detail to the wound care unit was an abuse of authority to OSC
and his EEO counselor, and that he “disclosed this pattern of [PPP] to VISN 10
supervisors and other higher supervisory channels – the facility was aware of
these disclosures before it took the present personnel action,” and reiterated in a
footnote that he made this disclosure to “OSC, EEO, VISN 10 supervisors and
some higher supervisors.” IAF, Tab 6 at 7. In a prior footnote, the appellant
identified “[t]he current facility leadership” as, among others, the Chief of20
Primary Care—the individual the appellant identifies as responsible for blocking
his access to patients and clinical services and obstructing his ability to
effectively telework on August 18, 2020, and the Medical Center Director—the
individual who issued the summary suspension of privileges on October 2, 2020,
and who blocked the appellant’s biennial request for privileges recredentialing
that same day. Id. at 6 n.17; see id. at 155, 206-09, 341.
Regarding the timing prong of the test, all of these actions took place
during the period from August 2020 through October 2020, within a few months
of the appellant’s disclosure of the apparent abuse of authority, so the timing
prong is satisfied. See Smith v. Department of Agriculture , 64 M.S.P.R. 46, 65
(1994) (finding that personnel actions taken within 1 year of the protected
disclosures satisfied the knowledge/timing test). Accordingly, the appellant
sufficiently alleged knowledge of his disclosure by relevant agency officials, and
a close temporal proximity between his protected disclosure and the significant
changes in his working conditions initiated by agency personnel, so we find that
he has satisfied the contributing factor jurisdictional criterion with respect to this
personnel action. See Dorney, 117 M.S.P.R. 480, ¶ 14.
The appellant made a nonfrivolous allegation that his protected activity of
filing a prior OSC complaint was a contributing factor in both personnel
actions.
Regarding the agency officials’ knowledge of the appellant’s protected
activity of disclosing information to OSC, in the section of his jurisdictional
pleading discussing his disclosures and activities, the appellant identifies that he
disclosed his OSC complaint to, among others, the Medical Center Director and
the “primary care leadership,” which includes the Chief of Primary Care—the
individuals responsible for the appellant’s placement on the wound care services
detail on August 12, 2020, and the actions that comprised a significant change in
the appellant’s duties during the period from August 2020 through October 2020,
respectively. IAF, Tab 6 at 6; see IAF, Tab 1 at 7; Tab 6 at 6 n.17, 155, 206-09,21
341. Regarding when these agency officials became aware of the appellant’s
OSC activity, although he does not specifically identify when he disclosed his
OSC activity to the relevant agency officials, in the section of his jurisdictional
response addressing the personnel actions taken against him, he states that facility
leadership, including VISN 10 supervisors (of which both the Chief of Primary
Care and the Medical Center Director are included, see IAF, Tab 6 at 6 n.17),
were “aware of” the disclosures and activities he identified in the prior section
(including his OSC complaint) before he was detailed, and he further identifies
that the denial of his request for recredentialing of his privileges on October 2,
2020 “occurred after my EEO and OSC disclosures of prohibited personnel
actions, which the facility was fully aware.” IAF, Tab 6 at 6-7.
Additionally, in the appellant’s annotated response to OSC’s preliminary
letter, he objects to OSC’s assessment that he had not provided any evidence that
any official with knowledge of his prior OSC complaint was involved in his detail
—the earlier of the two alleged personnel actions—asserting that “[i]t is very
clear that the officials with knowledge of my grievance, OSC, complaint to [a
Congressman] . . . participated in the detail,” and identifies the Medical Center
Director and Chief of Primary Care as among the individuals aware of his OSC
complaint. IAF, Tab 6 at 221-22; see id. at 219.
Regarding the timing element, although it is unclear when, exactly, the
appellant disclosed his prior OSC activity to the relevant agency officials, the
entire period of time at issue in this IRA appeal is within the 1-to-2-year
timeframe the Board has regularly held satisfies the knowledge/timing test. See
Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 21 (2015) (concluding
that a personnel action taken within approximately 1 to 2 years of the appellant’s
disclosure satisfies the contributing factor knowledge/timing test); Dorney,
117 M.S.P.R. 480, ¶ 16 (2012) (same)
In summary, although the appellant has not provided a clear timeline of
events regarding all of his allegations, the appellant, who is pro se, alleged22
knowledge by the relevant agency officials and a close temporal proximity
between: (1) his protected activity and both of the personnel actions at issue
here, i.e., his altered working conditions and his detail; and (2) his protected
disclosure and the subsequent significant change in his duties. Consequently, we
find that he has satisfied the contributing factor jurisdictional criterion. See
Dorney, 117 M.S.P.R. 480, ¶ 14.
Accordingly, we find that the appellant made a nonfrivolous allegation that
his protected disclosure and his protected activity contributed to the
corresponding personnel actions identified above; therefore, he is entitled to his
requested hearing and a decision on the merits of his appeal. IAF, Tab 1 at 2; see
Salerno, 123 M.S.P.R. 230, ¶ 5. Prior to conducting a hearing, the administrative
judge shall afford the parties a reasonable opportunity to conduct discovery and
order the parties to submit any other evidence that he deems necessary to
adjudicate the merits of the appellant’s IRA appeal. Lewis v. Department of
Defense, 123 M.S.P.R. 255, ¶ 14 (2016). In so doing, the administrative judge
may wish to order the appellant to supplement the record to provide clarity
concerning the nature of his prior complaint to OSC (including a copy of the
submitted complaint or any correspondences with OSC, if such exist) and
additional detail concerning how and when he alerted agency officials of his prior
OSC activity.4
4 The nature of an appellant’s disclosures may be relevant at the merits stage of an IRA
appeal, when he must prove the contributing factor element by preponderant evidence
and the agency can defend itself by providing clear and convincing evidence that it
would have taken the same personnel action absent the protected activity. See Fisher,
2023 MSPB 11, ¶ 8 n.1; see also Corthell , 123 M.S.P.R. 417, ¶ 13 (setting forth the
elements and burden of proving the merits of an IRA appeal based on a claim of reprisal
for perceived activity under 5 U.S.C. § 2302(b)(9)(C)).23
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.24 | Chukwuani_Okwudili_F_CH-1221-21-0033-W-1_Remand_Order.pdf | 2024-11-26 | DR. OKWUDILI FRANCIS CHUKWUANI v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-21-0033-W-1, November 26, 2024 | CH-1221-21-0033-W-1 | NP |
333 | https://www.mspb.gov/decisions/nonprecedential/Sutton__Paula_CB-7121-24-0003-V-1_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAULA SUTTON ,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
CB-7121-24-0003-V-1
DATE: November 25, 2024
THIS ORDER IS NONPRECEDENTIAL1
Sameera Mangena , Oakland, California, for the appellant.
Eli Kirschner and Joey Ann Lonjers , Long Beach, California,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
ORDER
¶1The appellant has filed a request for review of an arbitration decision that
sustained the agency’s decision to remove her for unacceptable performance
under 5 U.S.C. chapter 43. For the reasons set forth below, we GRANT the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
request for review under 5 U.S.C. § 7121(d), REVERSE the arbitrator’s finding
that the agency proved its charge of unacceptable performance and ORDER the
agency to cancel the appellant’s removal, VACATE the arbitrator’s finding that
the appellant did not prove her affirmative defense of reprisal for the
Rehabilitation Act-protected activities of requesting reasonable accommodations
and filing equal employment opportunity (EEO) complaints opposing disability
discrimination, and FORWARD the matter to the Western Regional Office for
further adjudication of this affirmative defense. The appellant’s removal is NOT
SUSTAINED.
BACKGROUND
¶2Prior to the appellant’s removal, the appellant worked as a GS-13
Environmental Protection Specialist for Customs and Border Protection in Laguna
Nigel, California. Request for Review File (RFR File), Tab 1 at 14. According
to the appellant, beginning in 2017, her “primary responsibility” became
completing environmental fact sheets regarding the land ports of entry in the
United States. Id. at 19. The final version of the fact sheets were uploaded into a
database called “TRIRIGA” and available to the public. Id. Initially, her
performance goal was to complete six fact sheets per pay period; however, her
then-supervisor lowered that goal to four fact sheets per pay period, which she
did not always complete. Id. at 438.
¶3Beginning in September 2020, the appellant, who has a hearing impairment,
inquired about the agency’s COVID-19 safety measures and if clear face masks
would be available to facilitate lipreading for hearing -impaired individuals. RFR
File, Tab 2 at 3. In October 2020, H.M. became the appellant’s first-level
supervisor. RFR File, Tab 1 at 439. On February 10, 2021, H.M. and S.E., the
Chief of Field Support and Mobile Work in the agency’s Laguna Nigel office,
were copied on emails concerning the appellant’s face mask inquiries. RFR File,
Tab 2 at 9-14. In response, S.E. emailed the appellant stating that they would2
provide information “when time permit[ted]” and to “please allow [the] team to
return to their time-sensitive work.” Id. at 11-12. H.M. also responded, ordering
the appellant “to immediately stand down [her] communications with [S.E.] and
his team” and stating that her inquiries were “highly unprofessional.” Id. at 9-10.
On March 3, 2021, H.M. issued the appellant a counseling memorandum
concerning 31 past-due fact sheets from November 2020 and reiterated the
expectation that the appellant complete four fact sheets per pay period. RFR File,
Tab 5 at 319-22. On March 26, 2021, the appellant initiated contact with an
agency equal employment opportunity (EEO) counselor concerning the face mask
issue, alleging disability discrimination and reprisal, and that the agency failed to
accommodate her. RFR File, Tab 2 at 2.
¶4On July 15, 2021, H.M. issued the appellant a 60-day employment
proficiency plan (EPP), which placed the appellant under a performance
improvement period (PIP) based on unacceptable performance, citing the
appellant’s continued failure to produce the required four fact sheets per pay
period. RFR File, Tab 2 at 324-27. The letter provided that, during the EPP
period, the appellant was required to produce two fact sheets per pay period. Id.
at 325. It also outlined the information that was to be included in the fact sheets
and set deadlines for submission. Id. at 325-26. On November 18, 2021, H.M.
notified the appellant that she met the requirements of the EPP. Id. at 329. She
further advised the appellant that she must maintain her performance for the
following 12-month period, beginning July 15, 2021. Id.
¶5In September 2021, the appellant asked her team leader if she could indicate
on the agency’s SharePoint site that her preferred method of communication was
email and video because of her hearing impairment. RFR File, Tab 1 at 386-87.
On December 7, 2021, the team leader told the appellant to delete her telephone
number in SharePoint so that email was the only communication option. Id.
at 385. That day, the appellant complained to several management officials,3
including H.M., that she believed she was being “marginalized” and that the team
leader’s response to her accommodation request was insufficient. Id. at 384-85.
¶6On December 8, 2021, H.M. made the appellant’s requested change in
SharePoint and emailed the appellant that she should have come directly to H.M.
to handle her request at “the lowest level” and to “avoid unnecessary conflict.”
Id. at 384. She concluded that “the below correspondence is an example of
miscommunication that could have been more easily rectified by
simply . . . speaking directly with the person involved.” Id. at 384-85. The
appellant then replied that she submitted her request to the team lead because she
was the point of contact listed on the SharePoint site. Id. at 383. In response,
H.M. emailed a labor relations representative requesting advice on how to
respond to the appellant who “sees the need to respond the way she did and
include the majority of [H.M.’s] [Program Management Office (PMO)] leadership
for no clear reason.” Id. H.M. also stated that she was “at [her] limits” with the
appellant’s “irrational accusations” and felt “under attack.” Id. She continued
that she felt their “professional relationship and level of respect for each other”
had improved during the appellant’s EPP period, but “the below is evidence that
[she was] incorrect in [her] beliefs and [she had] run out of ideas on how to
effectively manage this employee’s behavior.” Id.
¶7On March 15, 2022, the agency proposed the appellant’s removal for
unacceptable performance pursuant to 5 U.S.C. chapter 43 and for working
outside of normal work hours without authorization. RFR File, Tab 5 at 332-35.
On June 3, 2022, the agency issued a decision removing the appellant effective
that day. RFR File, Tab 1 at 2, Tab 5 at 340-43.
¶8The appellant’s union grieved the removal, and, after an arbitration hearing,
the arbitrator issued an opinion and award sustaining the appellant’s removal for
unacceptable performance. RFR File, Tab 1 at 522. She concluded that although
Technical Skills was one of five core competencies of the appellant’s overall
critical performance area, it was essentially a critical element of her position. Id.4
at 514. In so finding, she credited the testimony of the deciding official that
unacceptable performance in one competency could result in an overall
unacceptable performance rating. Id. She further found that the appellant’s goals
were not too vague; the appellant was provided with a meaningful opportunity to
demonstrate acceptable performance; the appellant’s supervisor warned the
appellant upon completion of the EPP that failure to maintain acceptable
performance could result in removal; and, after completion of the EPP, the
appellant’s performance once again became unacceptable. Id. at 515-20. She
also found that the appellant did not dispute that she worked outside of normal
work hours without authorization, despite being warned not to do so. Id. at 515.
The arbitrator determined that the appellant failed to prove her affirmative
defense of reprisal for her Rehabilitation Act -protected activities of requesting
reasonable accommodations and filing EEO complaints opposing disability
discrimination. Id. at 520-22.
¶9The appellant has requested review of the arbitrator’s opinion and award.
RFR File, Tab 1. The agency has responded in opposition to the appellant’s
request. RFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction to consider the appellant’s request for review.
¶10The Board has jurisdiction 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 jurisdiction; (2) the appellant either (i)
raised a claim of discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in
connection with the underlying action or (ii) raises a claim of discrimination in
connection with the underlying action under 5 U.S.C. § 2302(b)(1) for the first
time with the Board if such allegations could not be raised in the negotiated
grievance procedure; and (3) a final arbitration decision has been issued. Scanlin5
v. Social Security Administration , 2022 MSPB 10, ¶ 4; 5 C.F.R.
§ 1201.155(a)(1), (c).
¶11Here, we find that all of these conditions have been met. First, it is
undisputed that the appellant’s grievance concerned 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 reprisal for the Rehabilitation
Act-protected activities of requesting reasonable accommodation and filing EEO
complaints. E.g., RFR File, Tab 1 at 478-94, 513. Finally, the arbitrator has
issued a final decision. Id. at 500-23. Consequently, we find that the Board has
jurisdiction to review the arbitration decision.
The standard of review for an arbitration decision is limited.
¶12The 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
aside such an award only when the arbitrator has erred as a matter of law in
interpreting a civil service law, rule, or regulation. Id. Even if the Board
disagrees with an arbitrator’s decision, absent legal error, the Board cannot
substitute its conclusions for those of the arbitrator. Id. Thus, the arbitrator’s
factual determinations are entitled to deference unless the arbitrator erred in 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 findings
on the issues in question. Id. Further, the Board may make its own findings
when the arbitrator failed to cite any legal standard or employ any analytical
framework for his evaluation of the evidence. Id.6
¶13On review, the appellant argues that the Board need not defer to the
arbitrator’s findings because she did not cite any legal standard or set forth the
correct analytical framework for chapter 43 performance-based actions or her
affirmative defense of EEO reprisal. RFR File, Tab 1 at 27, 30-32. We agree that
the arbitrator did not cite these legal standards or fully and adequately apply
either analytical framework. Therefore, as explained below, we make our own
findings as to whether the agency proved its charge of unacceptable performance
and forward the appellant’s affirmative defense of reprisal to the regional office
for further adjudication consistent with this order. See Hollingsworth v.
Department of Commerce , 115 M.S.P.R. 636, ¶ 8 (2011) (reasoning that an
arbitrator’s failure to fully analyze a material issue constitutes legal error, which
permits the Board to make its own findings).
We reverse the arbitrator’s conclusion that the agency proved its charge of
unacceptable performance and cancel the appellant’s removal.
¶14To defend an action under chapter 43, the agency must prove the following
by substantial evidence:2 (1) OPM approved its performance appraisal system
and any significant changes thereto; (2) the agency communicated to the appellant
the performance standards and critical elements of her position; (3) the
appellant’s performance standards 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 least one critical
element. Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 15.
¶15On review, the appellant argues that the agency did not clearly communicate
to her what was necessary to achieve a satisfactory rating and therefore she was
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 reasonable persons might disagree. 5 C.F.R. § 1201.4(p). 7
not given a meaningful opportunity to improve her performance. RFR File, Tab 1
at 31-41. Specifically, she contends that, although the agency provided written
requirements in the EPP letter of what the appellant needed to do to achieve a
satisfactory level of performance, H.M. also told her verbally and in writing that
those deadlines could be adjusted if necessary. Id. at 33. Indeed, H.M. testified
that, despite the appellant continuing to miss deadlines during the EPP period, she
gave her “the benefit of the doubt” and determined that the appellant successfully
completed the EPP period. Id. at 297-300, 329-31 (testimony of H.M.). The
appellant argues that as a result, she “left the EPP period with the understanding
that she could miss deadlines and work outside of her normal hours on occasion
and still perform acceptably,” and she was not provided “a baseline” of how many
deadlines she could miss and still maintain acceptable performance. Id. at 34.
¶16The appellant argues that after the EPP period, her supervisor changed the
standard for acceptable performance by no longer allowing the appellant to adjust
her deadlines and did not clearly communicate that new expectation to her. Id.
at 34. The arbitrator summarily concluded, without applying any legal standard,
that there was no merit to the appellant’s arguments that her performance
standards were too vague and that she was therefore not given a meaningful
opportunity to improve. Id. at 515-18. The arbitrator reasoned that “the absence
of a specific directive that an environmental protection specialist must comply
with work production deadlines and work only during normal work hours does
not render [the Technical Skills standard] too vague to guide the [appellant’s] job
performance.” Id. at 516. She also was not persuaded that the appellant’s
post-EPP standards were changed, finding merely that “the [a]gency changed its
willingness to overlook [the appellant’s] unacceptable level of performance.” Id.
at 517. Because the arbitrator failed to fully and adequately determine the crux of
the issue in this appeal, which is whether the original EPP period provided the
appellant an adequate opportunity to improve, we make our own findings on this
issue. See Sadiq, 119 M.S.P.R. 450, ¶ 5. 8
¶17In some instances, such as here, an employee is able to perform at an
acceptable level while on an improvement plan, but her performance subsequently
deteriorates and again becomes unacceptable. Lin v. Department of the Air
Force, 2023 MSPB 2, ¶ 22. Such an individual is known as a “roller coaster”
employee. Id. An agency that has implemented a PIP generally is not required to
give a roller coaster employee a new PIP prior to removing him, provided it takes
its action based on instances of unacceptable performance in the same critical
elements for which the PIP was imposed that occurred within 1 year from the
inception of the PIP. Id. (citing Sullivan v. Department of the Navy , 44 M.S.P.R.
646, 659 (1990), overruled on other grounds , as recognized in Thomas v.
Department of Defense , 117 F. App’x 722, 724-25 (Fed. Cir. 2004)). In such
instances, the agency must prove that the original PIP constituted a reasonable
opportunity to demonstrate acceptable performance. Sullivan, 44 M.S.P.R.
at 659-60. If it does not, the action cannot stand. Id. at 660.
¶18Here, we agree with the appellant that the agency did not clearly
communicate to her what was necessary to achieve a satisfactory rating and
therefore she was not given a meaningful opportunity to improve her
performance. To assure that an employee receives a bona fide opportunity to
improve, an agency must prove both that it communicated the standards against
which an employee’s performance would be measured and that it gave the
employee adequate instructions regarding the manner in which she was expected
to perform the duties of her position prior to holding her accountable for
performance deficiencies. Jones v. National Gallery of Art , 36 M.S.P.R. 602,
604, aff’d per curiam , 864 F.2d 148 (Fed. Cir. 1988).
¶19Performance standards should be specific enough to provide an employee
with a firm benchmark toward which to aim her performance and must be
sufficiently precise so as to invoke general consensus as to their meaning and
content. Towne v. Department of the Air Force , 120 M.S.P.R. 239, ¶ 21 (2013),
modified on other grounds by Lee , 2022 MSPB 11. Here, the agency submitted9
the appellant’s 2021 performance standards, which show that she was subject to a
two-tier successful/unacceptable overall rating system. RFR File, Tab 5
at 345-46. However, those performance standards are, without more, invalid
because they only define successful performance in general terms. For example,
the Technical Skills core competency at issue in the appellant’s EPP and removal
merely states that the expectation is “met” if the employee is “[p]roficient in the
technical skills necessary to accomplish their assigned work in an effective and
efficient manner. Examples would include use of job-specific equipment,
automated systems/databases, research materials, enforcement techniques,
manuals, etc.”3 Id. at 345.
¶20Nevertheless, an agency may cure otherwise fatal defects in the
development and communication of performance standards by communicating
sufficient information regarding performance requirements at the beginning of,
and even during, the PIP. Thompson v. Department of the Navy , 89 M.S.P.R. 188,
¶ 18 (2001). It also may modify, at the beginning of the employee’s PIP, the
quality and quantity of performance required, as long as it does so according to a
reasonable standard and makes the appellant aware of the modifications. Id.
¶21Here, the EPP notice augmented the appellant’s performance standard for
the Technical Skills competency by providing that the appellant was required to
produce two fact sheets per pay period, outlining the information that was
required to be included in the fact sheets, and setting specific deadlines for their
submission. RFR File, Tab 5 at 325-26. Specifically, the notice provided that the
3 As mentioned above, the arbitrator essentially found that the Technical Skills core
competency is a critical element of the appellant’s performance plan by crediting the
testimony of the deciding official in the appellant’s removal that unacceptable
performance in one competency level may result in overall unacceptable performance in
the position, as was the case here. RFR File, Tab 1 at 514, 78-79 (testimony of the
deciding official). On review, the appellant does not specifically challenge that finding,
and therefore, we do not disturb it. 5 C.F.R. § 432.103(b) (defining a critical element
as “a work assignment or responsibility of such importance that unacceptable
performance on the element would result in a determination that an employee’s overall
performance is unacceptable”).10
draft fact sheets were due to H.M. for approval and any necessary edits by
4:00 p.m. PST on the second Monday of each pay period, and the final fact sheets
had to be uploaded into “TRIRIGA” by 4:00 p.m. PST on the second Thursday of
each pay period. Id. at 326. However, it is undisputed that H.M. told the
appellant that those deadlines could be adjusted if necessary. RFR File, Tab 1
at 33. H.M. testified that, during the EPP period, she was willing to adjust the
appellant’s deadlines if the appellant was taking leave or needed additional time,
including on a couple occasions when the appellant requested extensions the day
of the deadline. Id. at 297-98, 326 (testimony of H.M.). H.M. also testified that,
during the EPP period, the appellant missed deadlines and submitted drafts past
normal working hours, but she nevertheless determined that the appellant
successfully completed the EPP period. Id. at 298-301, 516-17 (testimony of
H.M.).
¶22The fact that the performance standard may call for a certain amount of
subjective judgment on the part of the employee’s supervisor does not
automatically invalidate it. Henderson v. National Aeronautics and Space
Administration, 116 M.S.P.R. 96, ¶ 23 (2011). However, as noted above, the
performance standards must be sufficiently precise and specific as to invoke a
general consensus as to its meaning and content and provide a firm benchmark
toward which the employee may aim her performance. Id. Here, we find that the
appellant was not provided with a firm benchmark toward which to aim her
performance. For instance, in her testimony, H.M. did not specify the number of
missed deadlines during the EPP period that she deemed few enough to still
warrant successful performance on the EPP and, ultimately, the appellant’s 2021
overall annual performance rating, although she did testify that it was not as
many as the 11 missed deadlines cited in the proposed removal. RFR File, Tab 1
at 330 (testimony of H.M.). Moreover, H.M. did not testify, nor did the agency
otherwise establish, that the appellant was ever informed of the number of late
assignments that would have differentiated between minimally successful and11
unacceptable performance in the Technical Skills competency. Based on the
aforementioned, we find that the agency has not shown by substantial evidence
that it cured its invalid performance standard during the EPP period.
Consequently, it has not shown that the EPP constituted a reasonable opportunity
to demonstrate acceptable performance, and the appellant’s removal cannot stand.
Sullivan, 44 M.S.P.R. at 660.
¶23Accordingly, we reverse the arbitrator’s conclusion that the agency proved
its charge of unacceptable performance. The agency’s failure to show that its
performance standards were valid is also relevant to the other elements in the
agency’s case, including for example the substantive element set forth in Santos
v. National Aeronautics and Space Administration , i.e., that the employee’s
performance was unacceptable prior to the PIP. 990 F.3d 1355, 1361-62 (Fed.
Cir. 2021). Absent valid performance standards, the Board cannot evaluate
whether the appellant’s performance was unacceptable. See, e.g., Henderson,
116 M.S.P.R. 96, ¶ 9; Ortiz v. Department of Justice , 46 M.S.P.R. 692, 695
(1991); Williams v. Department of Health and Human Services , 30 M.S.P.R. 217,
220 (1986). Because we reverse the removal on other grounds, we need not reach
the remaining elements of the agency’s case.
We vacate the arbitrator’s finding that the appellant did not prove her claim of
EEO reprisal under the Rehabilitation Act and forward the matter to the regional
office for adjudication of that claim.
¶24As the appellant correctly argues, and as discussed further below, the
arbitrator failed to apply any legal standard or analytical framework and to
consider all the relevant evidence before her in finding that the appellant did not
prove her affirmative defense of reprisal for requesting reasonable
accommodations and filing EEO complaints opposing disability discrimination.
RFR File, Tab 1 at 30-31, 520-22. Accordingly, we need not defer to her finding
that the appellant did not prove her affirmative defense. See Sadiq, 119 M.S.P.R.
450, ¶ 5; see also Pace v. Department of the Treasury , 118 M.S.P.R. 542, ¶ 912
(2012) (declining to defer to the arbitrator’s decision regarding the appellant’s
discrimination claims when the arbitrator failed to analyze the claims under any
recognizable legal standard or framework).
¶25In Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 44-47,
the Board clarified the proper analytical framework to be applied to an
affirmative defense of retaliation for engaging in the Rehabilitation Act -protected
activities of requesting reasonable accommodations and filing EEO complaints
opposing disability discrimination. Specifically, the Board explained in Pridgen
that an appellant must prove that the agency would not have removed her “but
for” her protected activity. Pridgen, 2022 MSPB 31, ¶¶ 44-47. Under a but-for
causation standard, an agency “cannot avoid liability just by citing some other
factor that contributed to its challenged employment decision.” Bostock v.
Clayton County , 590 U.S. 644, 656 (2020). An employer is liable if the
prohibited consideration “was one but-for cause of [its] decision.” Id.
¶26On review, the appellant argues that the arbitrator erred as a matter of law
by failing to properly consider all the relevant evidence of retaliation in finding
that the appellant’s March 3, 2021 performance counseling memorandum, her
placement on an EPP on July 15, 2021, and her removal on June 3, 2022, were not
retaliatory. RFR File, Tab 1 at 42-49. In denying the appellant’s reprisal
affirmative defense, the arbitrator essentially found that the timing of the
appellant’s counseling memorandum, EPP, and removal was not suspicious,
reasoning that the instances of alleged poor performance that formed the basis of
the appellant’s counseling and the subsequent EPP occurred before the
appellant’s protected activity. Id. at 520-21. The arbitrator also cited other
evidence undermining a retaliatory motive, such as H.M. lowering the appellant’s
performance goals from four to two fact sheets per pay period; conducting weekly
progress reports during the EPP period documenting the appellant’s progress, or
lack thereof; making the communication changes to SharePoint that the appellant
requested; and, most importantly, determining that the appellant had successfully13
completed the EEP “despite imperfect performance.” Id. at 521. For the
following reasons, we agree with the appellant that the arbitrator erred as a matter
of law in not applying the correct legal analysis, failing to fully consider the
relevant evidence before her, and not making credibility findings in the first
instance.
¶27On review, the appellant argues that the mere fact that the appellant’s
alleged performance issues, which H.M. began to document in November 2020,
predated the March 3, 2021 performance counseling memorandum and the
July 15, 2021 EPP notice does not preclude a finding that H.M. issued the
appellant the counseling and placed her on an EPP in retaliation for her protected
activity. Id. at 44-46. She also argues that the arbitrator did not consider H.M.’s
February 11 and December 8, 2021 emails, wherein H.M. responded to the
appellant’s reasonable accommodation requests with retaliatory animus. Id.
at 45-48. We agree that the arbitrator erred in not addressing or considering these
emails in determining whether the appellant proved her reprisal affirmative
defense. Id. at 520-21.
¶28First, according to the appellant’s EEO counselor’s report, the appellant
began requesting clear face masks for her hearing impairment in September 2020;
thus, the arbitrator erred in determining that her alleged performance issues
predated her EEO activity. RFR File, Tab 1 at 521, Tab 2 at 2-3. In any event,
according to H.M.’s February 11, 2021 email to the appellant, H.M. did not learn
of the appellant’s accommodation request until the previous day when she was
copied on the emails by her senior management. RFR File, Tab 2 at 9-12. She
responded by admonishing the appellant for her “highly unprofessional”
communication, ordering her to “stand down,” and advising her to submit any
further requests to her first. Id. at 9-12. The appellant reargues on review that
this email demonstrates that H.M. did not like when the appellant exercised her
EEO rights and is why, less than a month later, H.M. issued the appellant the
counseling memorandum. RFR File, Tab 1 at 46, 479; Tab 5 at 319-322. During14
the hearing, H.M. testified that those were “two totally separate issues.” RFR
File, Tab 1 at 304-06 (testimony of H.M.).
¶29According to the EEO counselor’s report, H.M. was interviewed on June 14,
2021, concerning her February 11, 2021 response to the appellant’s
accommodation request for clear face masks and her partial denial of the
appellant’s request for official time to attend an EEO mediation. RFR File, Tab 2
at 2, 6-7. Then, a month later on July 15, 2021, H.M. placed the appellant on an
EPP, which the appellant reargues was in reprisal for her disability EEO
complaint and accommodation request. RFR File, Tab 1 at 45, 450-51, 487;
Tab 5 at 324-27. However, during the hearing, H.M. testified that she did not
know what the appellant’s complaint was about and denied that she placed the
appellant on an EPP in retaliation for her EEO mediation. RFR File, Tab 1
at 309, 332 (testimony of H.M.). H.M. also testified that it was the team lead
who recommended reducing the number of fact sheets from four to two per pay
period to make the appellant’s work more achievable during the EPP period, and
that the team lead and the appellant agreed on that change. Id. at 265 (same).
Thus, the arbitrator erred in crediting H.M. for that decision and finding that it
refuted any alleged retaliatory animus H.M. harbored. Id. at 521. The arbitrator
summarily decided that there was “no credible evidence” of reprisal without
addressing the aforementioned conflicting evidence or making any credibility
findings in the first instance with respect to whether the appellant’s disability
EEO complaint and accommodation request were a but-for cause in H.M.’s
decision to issue the appellant a counseling memorandum and place her on an
EPP for not timely submitting fact sheets. Id.
¶30Similarly, we agree with the appellant that the arbitrator improperly failed
to consider H.M.’s December 8, 2021 email to the agency’s Labor Relations
representative, in which she forwarded the appellant’s complaint that the agency
mishandled her accommodation request for her contact information be changed in
SharePoint. Id. at 46-48, 521. The appellant reargues that the email demonstrates15
H.M.’s animus against the appellant for making disability complaints and
accommodation requests and caused H.M. to begin working with Labor Relations
compiling instances of the appellant’s alleged unprofessional behavior and
unacceptable performance for her removal. Id. at 46-48, 488-94.
¶31As established earlier, during the EPP period between July 15 and
November 18, 2021, H.M. was flexible and willing to adjust the appellant’s
deadlines for submitting drafts of fact sheets when the appellant needed more
time, and, despite the appellant’s submitting fact sheets past the deadlines and
working after hours, she determined that the appellant successfully completed the
EPP. Id. at 297-98, 326, 516-17 (testimony of H.M.). On November 4, 2021,
H.M. also gave the appellant a successful overall annual performance rating.
RFR File, Tab 5 at 346. Then, on December 8, 2021, less than a month after
determining that the appellant’s performance was acceptable, H.M. was again
copied on emails with management concerning the appellant’s accommodation
request to change her method of contact in SharePoint based on her hearing
impairment. RFR File, Tab 1 at 383-85. In response, H.M. emailed the appellant
admonishing her for not coming directly to her first to “avoid unnecessary
conflict” and citing the appellant’s emails concerning this accommodation request
as “an example of miscommunication.” Id. at 384-85. When the appellant
clarified that she submitted her SharePoint request to the team lead because she
was the point of contact listed on the SharePoint site, H.M. emailed Labor
Relations requesting advice on how to respond to the appellant who “sees the
need to respond the way she did and include the majority of [H.M.’s] PMO
leadership for no clear reason.” Id. at 383. H.M. also stated that she was “at
[her] limits” with the appellant’s “irrational accusations” and felt “under attack.”
Id. She stated that she felt their “professional relationship and level of respect for
each other” had improved during the appellant’s EPP period, but “the below is
evidence that [she was] incorrect in [her] beliefs and [she had] run out of ideas on
how to effectively manage this employee’s behavior.” Id. 16
¶32For several weeks thereafter, H.M. emailed with Labor Relations providing
examples of the appellant’s alleged unprofessional behavior and unacceptable
performance for the proposed removal. Id. at 376-82. Among them was a
December 27, 2021 email from the appellant to H.M. raising concerns she had
with meeting the deadlines for the submission of fact sheets due on December 29,
2021, and January 7, 2022, because of her holiday leave, mandatory training,
computer issues she was experiencing, and a medical procedure she was having
and because H.M. had scheduled the deadlines closer together. Id. at 376-77. In
a January 4, 2022 email to Labor Relations, H.M. referred to the appellant’s
concerns as “a series of excuses” that did not justify missing the established
deadlines. Id. Then, on March 15, 2022, the agency proposed the appellant’s
removal for submitting drafts of fact sheets late on 11 occasions, from December
2021 to February 2022, including on December 29, 2021, and January 7, 2022.
RFR File, Tab 5 at 332-35. The agency removed her on June 3, 2022. RFR File,
Tab 1 at 2, Tab 5 at 340-43.
¶33During the hearing, when H.M. was questioned about the December 8, 2021
email, she testified that she thought the appellant was being irrational because the
claims the appellant made “didn’t seem to have a basis” and came “out of
nowhere.” RFR File, Tab 1 at 333 (testimony of H.M.). She also testified that
she did not adjust the appellant’s deadlines in December 2021 because, although
the appellant spoke to her and mentioned potentially taking leave, the appellant
had not requested the leave in advance. Id. at 261 (same). She testified that she
thought the appellant was providing a “series of excuses” because the appellant
was only providing this information to her after a deadline was missed and was
being held accountable. Id. at 319-20 (same). Lastly, she testified that she was
involved in providing information about the appellant’s performance for the
removal. Id. at 314 (same).
¶34The arbitrator did not consider the aforementioned evidence or make any
credibility findings in the first instance as to whether the appellant’s EEO17
complaints and accommodation requests were a but-for cause in H.M.’s decision
to initiate the proposed removal. Instead, the arbitrator only considered the
December 8, 2021 email between H.M. and the appellant, wherein H.M. informed
the appellant that she had changed the appellant’s contact method in SharePoint,
and found that, although H.M. was “critical” of the way the appellant handled the
request, the fact that H.M. made the appellant’s requested change in 1 day
undercut any claim that she harbored retaliatory motive against the appellant. Id.
at 521. The arbitrator also did not make any findings as to whether H.M.
improperly influenced the proposing and deciding official in the appellant’s
removal under the cat’s paw theory. Under the cat’s paw theory, an appellant can
show retaliation by showing that a particular management official, acting because
of an improper animus, influenced an agency official who is unaware of the
improper animus when implementing a personnel action. See Aquino v.
Department of Homeland Security , 121 M.S.P.R. 35, ¶ 19 (2014). This is
especially concerning considering that H.M. was willing to adjust the appellant’s
deadlines and accept untimely drafts without consequence during the EPP period
but was no longer willing to do so after the appellant’s December 8, 2021
protected activity.
¶35Therefore, we vacate the arbitration decision as to the findings of no
retaliation. Pursuant to the Board’s authority in 5 C.F.R. § 1201.155(e), we
forward the matter to the Board’s Western Regional Office for assignment to an
administrative judge to make recommended findings on the appellant’s retaliation
claims under the appropriate legal standards. See Brookens 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).
¶36An appellant is typically entitled to notice of the applicable burdens and
elements of proof and an opportunity to submit evidence and argument under the
proper standard. Brookens, 120 M.S.P.R. 678, ¶ 16. To the extent that, during18
the arbitration process, the appellant was not afforded proper notice of her
burdens and elements of proof regarding her affirmative defense, the
administrative judge shall provide such notice and afford the parties the
opportunity to submit evidence and argument under the proper standards,
including holding a supplemental hearing on the limited issue of the appellant’s
affirmative defense of reprisal, before making recommended findings on the
merits of those claims. Id.4
ORDER
¶37For the reasons set forth above, we forward this matter to the Western
Regional Office for further adjudication of the appellant’s affirmative defenses of
reprisal for the Rehabilitation Act-protected activities of requesting reasonable
accommodations and filing EEO complaints. 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 date 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 in this matter.
¶38Notwithstanding the additional proceedings on the appellant’s
discrimination and retaliation claims, we ORDER the agency to cancel the
removal and reinstate the appellant to her position of GS-13, Environmental
Protection Specialist, effective June 3, 2022. See Kerr v. National Endowment
for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this
action no later than 20 days after the date of this decision.
4 The Board’s regulations provide that a request for attorney fees must be made within
60 days after issuance of a final decision, 5 C.F.R. § 1201.203(d). In this case, the time
limit for filing such a request will not begin to run until the Board issues a final
decision in this matter. See Aldridge v. Department of Agriculture , 111 M.S.P.R. 670,
¶ 23 n.4 (2009).19
¶39We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶40We 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).
¶41No 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 Clerk of the Board 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
¶42For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.21
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards
until notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g., TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the
employee in a job undertaken during the back pay period to replace federal
employment. Documentation includes W-2 or 1099 statements, payroll
documents/records, etc. Also, include record of any unemployment earning
statements, workers’ compensation, CSRS/FERS retirement annuity payments,
refunds of CSRS/FERS employee premiums, or severance pay received by the
employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable).
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | Sutton__Paula_CB-7121-24-0003-V-1_Order.pdf | 2024-11-25 | PAULA SUTTON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. CB-7121-24-0003-V-1, November 25, 2024 | CB-7121-24-0003-V-1 | NP |
334 | https://www.mspb.gov/decisions/nonprecedential/Kelly_Lisa_M_DC-0843-23-0672-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LISA M. KELLY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0843-23-0672-I-1
DATE: November 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lisa M. Kelly , Windsor, Virginia, pro se.
Shaquita Stockes and Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed as untimely filed her appeal of an Office of Personnel Management
(OPM) final decision finding that she was not entitled to a lump sum death
benefit under the Federal Employees Retirement System (FERS) based on the
death of her spouse. On petition for review, the appellant claims that her appeal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
was untimely due to circumstances beyond her control concerning her living
situation and access to mail. She also disputes the merits of OPM’s 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 the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Kelly_Lisa_M_DC-0843-23-0672-I-1_Final_Order.pdf | 2024-11-25 | LISA M. KELLY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0843-23-0672-I-1, November 25, 2024 | DC-0843-23-0672-I-1 | NP |
335 | https://www.mspb.gov/decisions/nonprecedential/McGregor_Sherniece_R_CH-0752-18-0592-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHERNIECE R. MCGREGOR,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-0752-18-0592-I-1
DATE: November 25, 2024
THIS ORDER IS NONPRECEDENTIAL1
C. Mike Moulton , Elizabethtown, Kentucky, for the appellant.
Whitney Alfred Campbell and Timothy Harner , Fort Knox, Kentucky, for
the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained her removal. For the reasons discussed below, we GRANT the
appellant's petition for review, VACATE the initial decision , and REMAND the
case to the regional office for further adjudication in accordance with this
Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2The appellant was a Supervisory Management Analyst with the U.S. Army
Human Resources Command until the agency removed her, effective
September 6, 2018, based on charges of conduct unbecoming and lack of candor.
Initial Appeal File (IAF), Tab 8 at 13-14, 22. The conduct unbecoming charge
was supported by five specifications in which the agency alleged that on various
occasions the appellant failed to follow her supervisor’s directives, refused to
meet with her supervisor, and acted unprofessionally and in a hostile manner. Id.
at 13. The lack of candor charge was supported by five specifications in which
the agency alleged that the appellant made various untruthful statements that her
supervisor had acted inappropriately toward her and displayed racist behavior at
work. Id. at 14.
¶3The appellant filed a Board appeal challenging her removal and raising
affirmative defenses of harmful procedural error, discrimination based on her race
and color, and retaliation for equal employment opportunity (EEO) activity. IAF,
Tab 1 at 8, Tab 10. After a hearing, the administrative judge issued an initial
decision sustaining the appellant’s removal and finding that the appellant failed to
prove her affirmative defenses.2 IAF, Tab 49, Initial Decision (ID) at 1-37. The
administrative judge further found that there was a nexus between the charges and
the efficiency of the service and that the penalty was within the tolerable limits of
reasonableness. ID at 37-41.
¶4The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded to the petition for review, and the
appellant has filed a reply to the agency’s response. PFR File, Tabs 3-4.
2 The administrative judge sustained specifications 2-5 of the conduct unbecoming
charge and specifications 1-4 of the lack of candor charge. ID at 19-33.2
ANALYSIS
The administrative judge did not err in her credibility determinations.
¶5The context for this appeal largely concerns the appellant’s relationship
with her supervisor. According to the appellant, that relationship was marked by
her supervisor’s harassment and hostility, born at least in part out of his race,
color, and sex-based animus towards her. The agency denies that any such
hostility, harassment, or animus existed. Considering the hearing testimony and
written statements of the appellant and 15 other witnesses, the administrative
judge found the agency’s account to be more accurate and determined that the
appellant’s reports of harassment and discrimination were false. ID at 19. In
particular, she found that the evidence showed that the 15 individuals who either
testified or were interviewed and submitted sworn statements during the agency’s
internal investigation all said essentially the same thing—that the appellant’s
supervisor did not create a toxic or hostile work environment, did not single out
the appellant or treat her differently, and he was not a racist, sexist, liar, or
controlling micromanager as the appellant alleged. ID at 16-17. Rather, the
witnesses almost universally praised the appellant’s supervisor as a leader and
manager. ID at 18. In so finding, the administrative judge credited the testimony
of the appellant’s coworkers and supervisor, which she found to be direct and
straightforward as well as internally consistent and consistent with the
documentary evidence. ID at 17. In contrast, she found the appellant to be
defensive, largely unreliable, and dishonest and that her testimony aligned with
the documentary evidence and testimony suggesting that the appellant considered
herself beyond reproach and, when confronted with shortcomings, she would lash
out rather than take constructive criticism. ID at 18-19.
¶6On review, the appellant argues that the administrative judge erred in her
credibility determinations by ignoring facts and improperly considering the
appellant’s supervisor’s demeanor. PFR File, Tab 1 at 13-16. She further3
contends that the administrative judge erred by failing to consider that the
appellant’s coworkers lacked the opportunity and capacity to observe her alleged
mistreatment by her supervisor as well as by failing to consider that they may
have been biased because they were still employed by the agency. Id. at 16-17.
We find such arguments unavailing. A witness’s demeanor is a relevant factor for
an administrative judge to consider in making credibility determinations. See
Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987). Additionally,
the administrative judge properly considered the testimony of the appellant’s
coworkers to the extent that they witnessed the relevant incidents. ID at 5, 7, 9,
22-24, 29, 31. Finally, the administrative judge found that the appellant’s
coworkers lacked a motive to lie about their interactions with the appellant or her
supervisor because, in light of the totality of the record and consistency of their
testimony, it would be implausible to find that they collectively conspired against
the appellant to refute her allegations while under oath in writing and during their
testimony. ID at 17, 32-33. Thus, we find that the appellant’s arguments on
review do not provide a sufficiently sound reason to overturn the administrative
judge’s credibility findings. Haebe v. Department of Justice , 288 F.3d 1288,
1301 (Fed. Cir. 2002) (stating that the Board must give deference to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on the observation of the demeanor of witnesses testifying at a
hearing and may overturn such determinations only when it has “sufficiently
sound” reasons for doing so).
The charge of conduct unbecoming is sustained.
¶7In specification 2, the agency charged the appellant with refusing to follow
her supervisor’s May 9, 2018 directive that she personally write an executive
summary and task timeline and instead delegating the task to another employee.
IAF, Tab 8 at 13. The administrative judge found that the agency proved that the
appellant was directed to correct the executive summary, which was originally4
drafted by the appellant’s subordinate in the appellant’s absence. ID at 21. She
further found that the appellant’s supervisor’s email and testimony made clear
that he had instructed the appellant to do the work, not delegate it to her
subordinates. ID at 4-5, 21. On review, the appellant argues that it was improper
for her supervisor to ask her to personally prepare the executive summary instead
of delegating it and that his action in doing so shows how he singled her out.
PFR File, Tab 1 at 17. However, the administrative judge considered and rejected
such an argument, finding that it failed to account for the circumstances under
which the record revealed that the appellant’s subordinate had created confusion
such that it was reasonable for the appellant’s supervisor to request that the
appellant rewrite it. ID at 21. The appellant also argues that her supervisor’s
email regarding the executive summary did not use the word “personally” and
that she later told her supervisor that she wrote the summary during a meeting on
May 16, 2018. PFR File, Tab 1 at 17-18. These arguments, however, do not
establish any error in the administrative judge’s finding that the May 9, 2018
email chain between the appellant and her supervisor showed that the appellant
was instructed to write the summary and that she failed to confirm that she
personally produced the summary at that time. ID at 4-5, 21-22.
¶8In specification 3, the agency alleged that on May 9, 2018, the appellant
refused her supervisor’s directive that she meet with him regarding drafting an
executive summary, instead loudly proclaiming that any meeting between them
would be in the Chief of Staff’s office. IAF, Tab 8 at 13. The administrative
judge found that the agency proved that the appellant’s supervisor requested a
meeting with her, which the appellant refused, and instead went to the Chief of
Staff and made unfounded allegations against her supervisor. ID at 22. On
review, the appellant asserts that her actions did not amount to conduct
unbecoming a Federal employee, but rather were reasonable in light of her
supervisor’s harassment over the previous 3 months. PFR File, Tab 1 at 18. This
argument, however, amounts to disagreement with the administrative judge’s5
findings that the appellant’s claims of harassment were false and not supported by
the record.3 ID at 22; see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06
(1997) (stating that the Board will give due deference to the credibility findings
of the administrative judge and will not grant a petition for review based on a
party’s mere disagreement with those findings); Broughton v. Department of
Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
¶9In specification 4, the agency alleged that, during a meeting with her
supervisor and the Deputy Chief of Staff on May 16, 2018, the appellant pointed
her finger at her supervisor, raised her voice, and stated that he was a liar, she
didn’t trust him, wanted to move, and couldn’t work for him, before storming out
of the meeting. IAF, Tab 8 at 13. The administrative judge found that the
evidence, including testimony of the appellant’s supervisor and the Deputy Chief
of Staff as well as the appellant’s own secretly made recording of the meeting,
established that the appellant engaged in the charged conduct. ID at 23. The
appellant’s argument on review that her conduct was proper in light of her
supervisor’s harassment constitutes mere disagreement with the administrative
judge’s demeanor-based credibility findings and provides no basis to disturb the
initial decision. See Crosby, 74 M.S.P.R. at 105-06; Broughton, 33 M.S.P.R.
at 359.
¶10In specification 5, the agency alleged that the appellant asked improper
questions in a hostile manner during a briefing to the Commanding General on the
results of a manpower study. IAF, Tab 8 at 13. The administrative judge found
that the appellant’s questions were designed to embarrass her supervisor in front
of the Commanding General and that the timing of her questions showed a lack of
judgment because she should have raised such questions well before the final
briefing instead of withholding her concerns until the spotlight was on her team.
ID at 24. On review, the appellant reiterates that G.H., one of her subordinates
3 The undercurrent of the appellant’s case is that her supervisor was hostile, demeaning,
and bigoted. PFR File, Tab 1 at 13-166
who attended the briefing, testified that he did not perceive the appellant’s
questions as being designed to embarrass her supervisor. PFR File, Tab 1 at 17.
However, the administrative judge considered this testimony and found that it did
not align with the testimony of several other coworkers who attended the briefing
and felt that the appellant’s questions were improper. ID at 24.
¶11Because the agency proved specifications 2 through 5, the charge is
sustained. When more than one event or factual specification is set out to support
a single charge, proof of one or more, but not all, of the supporting specifications
is sufficient to sustain the charge. Burroughs v. Department of the Army , 918
F.2d 170, 172 (Fed. Cir. 1990).
The charge of lack of candor is not sustained.
¶12The four specifications of this charge all pertain to statements that the
appellant made to the Chief of Staff about her supervisor’s conduct, as well as
statements that the appellant made during the ensuing investigation. IAF, Tab 8
at 14. Regardless of whether the appellant lacked candor in making these
statements, this charge cannot be sustained because, as explained more fully
below, it concerns protected activity for which the appellant may not be
disciplined.
The appellant proved that her affirmative defense of retaliation for equal
employment opportunity activity was a motivating factor in her removal.
¶13The administrative judge found that the appellant failed to show that her
EEO activity was a motivating factor in her removal because the evidence
established that the appellant’s supervisor did not act improperly and did not
engage in the behavior reported by the appellant. ID at 36-37. On review, the
appellant argues that she has met her burden because the lack of candor charge
derives from her protected reports of discrimination and harassment, originally
made to the Chief of Staff, and later memorialized in a sworn statement as part of
the agency’s internal investigation into her claims. PFR File, Tab 1 at 24-25. We
agree with the appellant.7
¶14In her initial complaint to the Chief of Staff, and during the ensuing
investigation, the appellant alleged that her supervisor engaged in discriminatory
and harassing behavior against her based on her race, color, and sex. IAF, Tab 8
at 201-09, Tab 10 at 8-10. Under Title VII of the Civil Rights Act of 1964,
discrimination on these bases is prohibited in the Federal workplace. 42 U.S.C.
§ 2000e-16(a). Federal employees are also protected from retaliation for
engaging in activity protected under Title VII. As relevant here, to prove an
affirmative defense of retaliation for Title VII EEO activity, an appellant must
show that she engaged in such activity and that the protected activity was at least
a motivating factor in the agency’s action or decision. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 20-22, 30. Under Title VII’s
antiretaliation provision, it is unlawful for an employer to discriminate against an
employee because she “has opposed any practice made an unlawful employment
practice by this subchapter, or because [she] has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing
under this subchapter.” 42 U.S.C. § 2000e-3(a).
¶15There are two kinds of activity protected under this provision—opposition
activity and participation activity. Johnson v. Frost , EEOC Appeal No.
11980023, 2001 WL 1353704, at *6 (June 28, 2001). The participation clause
applies when the employee has participated in “the machinery set up by Title VII
to enforce its provisions.” Silver v. KCA, Inc. , 586 F.2d 138, 141 (9th Cir. 1978).
The opposition clause is more general and applies to virtually any opposition to
what an employee perceives to be a discriminatory practice by her employer,
including opposition accomplished outside of the Title VII procedural framework.
See Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn. , 555 U.S.
271, 276-78 (2009). Participation activity enjoys broader protection than does
opposition activity; the participation clause protects even false and malicious
charges of discrimination, whereas the opposition clause protects only reasonable,
good faith allegations of discrimination. Wyatt v. City of Boston , 35 F.3d 13, 158
(1st Cir. 1994); Equal Employment Opportunity Commission (EEOC)
Enforcement Guidance on Retaliation and Related Issues, § IIA (Aug. 25, 2016).
Because the appellant’s reports of discrimination and harassment were not made
reasonably and in good faith, they would be protected only if they were covered
under the participation clause, i.e., made within the context of an “investigation,
proceeding, or hearing under [42 U.S.C, chapter 21, subchapter VI].” 42 U.S.C. §
2000e-3(a).
¶16There is no evidence that the appellant ever filed an EEO complaint—
formal or informal—spoke with an EEO counselor, or otherwise took any steps to
engage in the processes described in 29 C.F.R. §§ 1614.105-.110. Instead, the
record shows that the initial complaint and subsequent proceedings took place
within the context of the agency’s Anti-Harassment Policy Implementation
Procedures. IAF, Tab 8 at 60; Army Regulation 690-12, appendix D (Jan. 22,
2017). These anti-harassment procedures were promulgated in accordance with
the EEOC’s Management Directive (MD) 715 § II.C (Oct. 1, 2003), available at
https://www.eeoc.gov/federal-sector/management-directive/section-717-title-vii,
which requires each Federal agency to develop a comprehensive anti-harassment
policy to prevent and address harassment on all protected bases. See EEOC,
Instructions to Federal Agencies for MD-715 Section I The Model EEO Program
§ II.B.1, https://www.eeoc.gov/federal-sector/management-directive/instructions-
federal-agencies-md-715-section-i-model-eeo; see generally Rosamaria F. v.
Department of the Navy , EEOC Appeal No. 0120181068, 2020 WL 949668 at *6-
*8 (Feb. 14, 2020) (explaining the substantive requirements for anti-harassment
policies). The EEOC’s authority to issue MD 715 derives from 42 U.S.C.
§ 2000e-16(b), which authorizes it to “issue such rules, regulations, orders and
instructions as it deems necessary and appropriate to carry out its responsibilities
under this section.” For these reasons, we find that the statements at issue were
made within the context of an investigation or proceeding under 42 U.S.C,
chapter 21, subchapter VI, and are therefore protected under the participation9
clause. As such, the appellant’s statements to the Chief of Staff and to the agency
investigator constitute protected activity regardless of their veracity. See Pettway
v. American Cast Iron Pipe Co. , 411 F.2d 998, 1007-08 (5th Cir. 1969); Jazmine
F. v. Department of Defense , EEOC Petition No. 0320170007, 2023 WL 4653604,
at *6-*7 (July 5, 2023); EEOC Enforcement Guidance on Retaliation and Related
Issues, Notice 915.004, 2016 WL 4688886, at *5-*7 (Aug. 25, 2016)
¶17The record also shows that this protected activity was at least a motivating
factor in the appellant’s removal. The proposal and decision documents
themselves are undisputed, direct evidence that the appellant’s removal was
based, at least in part, on statements she made during the anti-harassment
proceedings. IAF, Tab 8 at 14, 22. Under these circumstances, the agency could
not plausibly argue that the appellant’s removal was not motivated by retaliation.
¶18Nevertheless, the appellant’s removal was not based on prohibited
retaliation alone (as under the lack of candor charge) but was also based on
legitimate, nondiscriminatory, nonretaliatory reasons (as under the conduct
unbecoming charge). The administrative judge, at least, considered lack of
candor to be the more serious of the two charges: “The lack of candor charge
alone warrants removal, and the remaining charge only bolsters the agency’s
decision.” ID at 40. However, when asked at the hearing whether she found any
certain specifications to be particularly serious, the deciding official identified
specifications from both charges and further testified that she would have
sustained the removal based on either charge standing alone. IAF, Tab 31-1,
Hearing Recording, Day 1, Track 1 at 16:55 (testimony of the deciding official).
We cannot determine on the existing record whether the agency would have
removed the appellant even in the absence of her protected activity, i.e., based on
the conduct unbecoming charge alone. Yet the question of causation must be
answered before the Board reaches a final disposition because the appellant will
be entitled to full relief under the statute only if she proves that retaliation was a
but-for cause of her removal. See Pridgen, 2022 MSPB 31, ¶ 22. Under the10
particular circumstances of this case, we find it appropriate to remand the appeal
to the regional office for further adjudication of the appellant’s affirmative
defense.4
¶19We further observe that the appellant’s affirmative defense is intertwined
with the issue of penalty. When the Board sustains fewer than all of the agency's
charges, the Board may mitigate the agency’s penalty to the maximum reasonable
penalty as long as the agency has not indicated in either its final decision or in
proceedings before the Board that it desires that a lesser penalty be imposed on
fewer charges. Lachance v. Devall , 178 F.3d 1246, 1260 (Fed. Cir. 1999).
Therefore, if the administrative judge does not find that the appellant proved
but-for causation, she should still determine whether the penalty of removal
exceeds the tolerable limits of reasonableness based on the sustained
specifications alone.
ORDER
¶20For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. On remand, the
administrative judge shall allow the parties to file supplemental briefing on
whether the appellant’s protected activity was a but-for cause of her removal, or
whether the agency would have taken the same action based on the conduct
unbecoming charge alone. The administrative judge shall also allow the parties
to file supplemental briefing on the issue of penalty. If appropriate, the
administrative judge shall allow the parties to proffer additional evidence, which
may include a supplemental hearing, on these issues. The administrative judge
shall then issue a new initial decision in accordance with this Remand Order. The
4 On petition for review, the appellant renews her argument that her removal was the
product of harmful error. PFR File, Tab 1 at 23. For the reasons explained in the initial
decision, we agree with the administrative judge that the appellant did not prove this
affirmative defense. ID at 34. We also agree with the administrative judge that the
appellant did not prove that her race or color were motivating factors in her removal.
ID at 35-36.11
remand initial decision may incorporate the administrative judge’s previous
findings to the extent consistent with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | McGregor_Sherniece_R_CH-0752-18-0592-I-1_Remand_Order.pdf | 2024-11-25 | SHERNIECE R. MCGREGOR v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-0752-18-0592-I-1, November 25, 2024 | CH-0752-18-0592-I-1 | NP |
336 | https://www.mspb.gov/decisions/nonprecedential/Perdikis_Shannon_W_AT-1221-23-0468-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHANNON PERDIKIS,
Appellant,
v.
DEPARTMENT OF STATE,
Agency.DOCKET NUMBER
AT-1221-23-0468-W-1
DATE: November 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Boyd Hinton , Charleston, South Carolina, for the appellant.
Jason Kohn , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. On
petition for review, the appellant argues that the administrative judge erred in
finding that the filing of her grievance was not protected activity within the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Board’s IRA jurisdiction. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Perdikis_Shannon_W_AT-1221-23-0468-W-1_Final_Order.pdf | 2024-11-22 | SHANNON PERDIKIS v. DEPARTMENT OF STATE, MSPB Docket No. AT-1221-23-0468-W-1, November 22, 2024 | AT-1221-23-0468-W-1 | NP |
337 | https://www.mspb.gov/decisions/nonprecedential/Warne_Joel_J_SF-1221-23-0305-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOEL JENNINGS WARNE,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-1221-23-0305-W-1
DATE: November 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joel Jennings Warne , Galveston, Texas, pro se.
Joel Lincoln Bouve , Corpus Christi, Texas, for the agency.
Henry Karp , Washington Navy Yard, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal as untimely filed. On
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
petition for review, the appellant argues the merits of his appeal. He also argues
that the administrative judge erred in not crediting his allegations regarding his
delayed ability to access the Office of Special Counsel (OSC)’s email attaching
its close-out letter and in finding that equitable tolling was not warranted in his
case. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the2
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).
2 With his petition for review, the appellant submits documents associated with his
equal employment opportunity (EEO) case, a document pertaining to iCloud email and
e-Appeal errors, several emails, and two declarations under penalty of perjury. Petition
for Review (PFR) File, Tab 2 at 34-69. The Board generally will not consider evidence
submitted for the first time on review absent a showing that: (1) the documents and the
information contained in the documents were unavailable before the record closed
despite due diligence; and (2) the evidence is of sufficient weight to warrant an outcome
different from that of the initial decision. Carson v. Department of Energy ,
109 M.S.P.R. 213, ¶ 21 (2008), aff'd, 357 F. App’x 293 (Fed. Cir. 2009); 5 C.F.R.
§ 1201.115(d). Most of the documents are dated after the close of the record below, and
thus, they may constitute “new evidence.” However, they are not material to the appeal
because they do not address the timeliness issue and therefore fail to demonstrate that
the administrative judge erred in dismissing the appeal as untimely filed. With respect
to the documents purportedly related to the timeliness issue, they do not provide a basis
to disturb the initial decision. The appellant’s declaration regarding the inconsistencies
in his prior statements is based, for the most part, on information that was readily
available prior to the close of the record below, which the administrative judge
considered but correctly concluded did not change the fact that the appellant received
the OSC close-out letter at his Proton email address on the same date it was issued,
February 7, 2023. In addition, the appellant’s screenshot of an application error
associated with e -Appeal does not pertain to an error during the filing period for this
appeal, and the appellant’s screenshots of his iCloud issues are immaterial because he
used his Proton email account in his communications with OSC. With respect to any
documents predating the close of the record, the appellant has not asserted that they
were unavailable despite his due diligence when the record closed.
The appellant also submits multiple motions for leave to file an additional pleading.
PFR File, Tabs 4, 8, 10. In his July 2, 2023 motion, the appellant indicates that he
wishes to submit evidence showing that, from June 29, 2023, to July 2, 2023, he has
been experiencing issues sending emails using iCloud. PFR File, Tab 4 at 5. In his
December 30, 2023, and December 31, 2023 motions, the appellant asserts that he
wishes to submit documents associated with his EEO case, including a December 18,
2023 Letter of Return for Second Supplemental Investigation and three declarations of
agency officials, and information that would implicate agency officials in a potentially
criminal conspiracy to extort him out of his claims. PFR File, Tab 8 at 5, Tab 10 at 4.
In a January 9, 2024 pleading revising his December 31, 2023 motion, the appellant3
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
raises assertions that go to the merits of his appeal. PFR File, Tab 12 at 8. Once the
record closes on review, no additional evidence or argument will be accepted unless it
is new and material and was not readily available before the record closed. Maloney v.
Executive Office of the President , 2022 MSPB 26, ¶ 4 n.4; 5 C.F.R. § 1201.114(k)
(2023). As to his first motion, the evidence he seeks leave to file postdates the filing
period for his IRA appeal and he has failed to explain how it would warrant an outcome
different from the initial decision. As to his other motions, his arguments and evidence
pertain to the merits of his IRA appeal and are not material to the dispositive timeliness
issue. Accordingly, we deny the appellant’s motions.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Warne_Joel_J_SF-1221-23-0305-W-1_Final_Order.pdf | 2024-11-22 | JOEL JENNINGS WARNE v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-1221-23-0305-W-1, November 22, 2024 | SF-1221-23-0305-W-1 | NP |
338 | https://www.mspb.gov/decisions/nonprecedential/Covington_Anthony_G_DC-0752-20-0450-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY GEORGE COVINGTON,
SR.,
Appellant,
v.
SMITHSONIAN INSTITUTION,
Agency.DOCKET NUMBER
DC-0752-20-0450-I-1
DATE: November 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony George Covington, Sr. , Martinsburg, West Virginia, pro se.
David Larson and Katherine Bartell , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal with prejudice 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
Effective February 11, 2020, the agency removed the appellant from the
position of Electronics Mechanic based on the charges of misuse of a Government
vehicle, driving on a suspended license, and failure to request leave.
Initial Appeal File (IAF), Tab 4 at 17-20. The appellant timely filed the instant
appeal, in which he requested a hearing and declined to e-file. IAF, Tab 1 at 2.
He designated a representative from his union in his initial appeal form. Id. at 3.
The administrative judge issued an acknowledgment order setting forth
various requirements, including those governing discovery and pleadings
practice. IAF, Tab 2. She explicitly informed the parties that failure to follow
her orders or the Board’s regulations could result in sanctions and instructed them
that they could seek clarification with her via telephone regarding any of the case
processing instructions set forth in the acknowledgment order. Id. at 2.
The agency complied with the instructions in the order and filed its narrative
response and evidence file. Id. at 9-10; IAF, Tabs 4-5. The appellant did not file
a response or any other pleading prior to the issuance of the initial decision.2
On April 3, 2020, the administrative judge issued an order regarding service,
waiving the requirement to serve the appellant by U.S. Mail pursuant to 5 C.F.R.
§ 1201.12 and ordering the appellant’s representative to serve the Board’s
issuances on the appellant upon receipt. IAF, Tab 6 at 1. The order encouraged
the appellant to become an e-filer due to the Board’s atypical operations during
the pandemic. Id.
On April 10, 2020, the administrative judge held a telephonic status
conference. IAF, Tab 8 at 1. As set forth in the order and summary of
conference call, the administrative judge contacted the appellant and his
designated representative directly because neither appeared for the teleconference
at the scheduled time. Id. Although the union representative was apparently
unfamiliar with the case and unaware of the appellant’s designation of
representative, following a discussion with the administrative judge, the appellant
confirmed his intent to be represented by the union president and the
representative confirmed his willingness to serve as such. Id. at 1-2. During the
teleconference, the administrative judge explained to the appellant her order
directing his representative to serve him with the Board’s orders, again
encouraged him to become an e-filer, and provided the telephone number for
Board administrative staff should he require assistance with registering as an
e-filer. Id. at 2-3. The administrative judge rescheduled the teleconference in
order to allow the appellant to confer with his representative. Id. at 2. During
the following teleconference, there was continued confusion regarding the
appellant’s representation, and the administrative judge informed the appellant
that she would not permit any “further delays in case processing . . . regarding
representational issues absent extraordinary circumstances.” IAF, Tab 9 at 1 n.1.
Subsequently, the agency filed a motion to compel the appellant’s
discovery responses, asserting that the appellant had failed to provide any
responses to their discovery requests. IAF, Tab 11 at 4-7. The agency also
submitted into the record certain email communications between the parties3
indicating that the appellant intended to change representatives and that it had
served the appellant a copy of its motion at his email address of record. Id. at 5
n.1, 25. The administrative judge issued a discovery conference order, in which
she notified the parties that she would consider the appellant represented by the
union president unless and until he submitted a formal notice of withdrawal.
IAF, Tab 12 at 1. The administrative judge contacted the appellant directly after
he failed to appear at the scheduled time for the discovery conference, and he
confirmed that he was no longer represented. IAF, Tab 13 at 1. In a summary of
the discovery conference and order, the administrative judge noted that the
appellant had failed to appear for several status conferences and only appeared
after she had called him directly. Id. at 1 n.1. She advised the appellant that it
was his duty to keep abreast of his appeal and comply with Board orders. Id.
The administrative judge granted the agency’s motion to compel and ordered the
appellant to provide his responses by a date certain. Id. at 2. Finally, the
administrative judge waived the prohibition against the use of email because the
appellant had not registered as an e-filer and explained that the appellant could
file pleadings via email and that the Board and the agency could serve the
appellant via email. Id. at 3-4. The administrative judge noted that the appellant
had confirmed his access to his email address of record and agreed to email
service. Id. at 4 n.2.
The discovery dispute continued, and the agency filed a motion for
sanctions, asserting that the appellant had failed to comply with the discovery
order and had not provided any responses to the agency’s requests. IAF, Tab 14
at 4-7. On June 3, 2020, the administrative judge issued an order, which was
served on the appellant via email, rescheduling the prehearing conference to
June 11, 2020. IAF, Tab 15 at 1-2. The appellant failed to appear for the
telephonic prehearing conference, and the administrative judge contacted him
directly at his telephone number of record and left a detailed voice message with
instructions regarding the teleconference. IAF, Tab 19 at 1. Subsequently, on4
June 12, 2020, the administrative judge issued an order to show cause, stating that
it was unclear from the appellant’s repeated failures to appear whether he
intended to proceed with his appeal. Id. at 2. She ordered the appellant to file a
response on or before June 18, 2020 and show cause why he failed to comply with
her discovery order, failed to file a prehearing submission, and failed to appear
for the prehearing conference. Id. The administrative judge explicitly informed
the appellant that his failure to timely respond to the order or show good cause
for his failure to follow the Boards’ orders would result in dismissal of the appeal
for failure to prosecute. Id. The certificate of service stated that the Board
served the order on the appellant via electronic mail. Id. at 4. The appellant did
not respond to the order to show cause.
The administrative judge issued an initial decision dismissing the appeal
for failure to prosecute because the appellant failed to participate in his appeal.
IAF, Tab 20, Initial Decision (ID) at 1, 4. The administrative judge found that
the appellant failed to respond to the acknowledgment order or order compelling
him to respond to the agency’s discovery requests, failed to submit a prehearing
submission, and failed to participate in the prehearing conference. ID at 3.
She also found that the appellant failed to respond to her detailed voicemail
regarding the missed prehearing conference and failed to participate in his appeal
even after she notified him that his appeal could be dismissed if he failed to do
so. Id.
On July 23, 2020, one month after the issuance of the initial decision, the
appellant filed a request to reschedule the prehearing conference. IAF, Tab 22 at
1. He stated that he was “not made aware of” the telephonic prehearing
conference and that he had recently moved and received a copy of the letter from
his former landlord after the conference. Id. The appellant provided the same
email address and mobile number that he provided in his initial appeal form, as
well as a new mailing address. IAF, Tab 1 at 1, Tab 22 at 1. He also submitted
part of the agency’s interrogatories and his responses thereto. IAF, Tab 22 at 2-6.5
The appellant has filed a petition for review, arguing that he “did not have
the proper representation from the union and was not able to get an attorney in
time.” Petition for Review (PFR) File, Tab 1 at 1. He maintained that he
“did not receive the conference call” and did not receive the “letter” until
July 17, 2020. Id. The appellant argued that he did not have a chance to speak
with the administrative judge in his defense and requested that the Board grant
him the opportunity to present his case. Id. The Office of the Clerk of the Board
issued an order informing the appellant that, until the Board returned to normal
operations, he would be served by the Board and other parties via email and that
he should serve his pleadings via email.2 PFR File, Tab 2 at 1-2. The agency
filed a response, arguing that the administrative judge’s dismissal for failure to
prosecute was an appropriate sanction for the appellant’s repeated failure to
comply with Board orders. PFR File, Tab 4 at 6-7. The agency challenged the
appellant’s assertion that he had belatedly received the order to show cause from
a previous landlord, noting that the administrative judge had served all orders
after the telephonic discovery conference via email. Id. at 8-9.
DISCUSSION OF ARGUMENTS ON REVIEW
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 sanction 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
2 The appellant filed a supplement to the petition for review. PFR File, Tab 5.
However, it consists only of hard copies of the appellant’s petition for review and the
letter that he sent to the administrative judge after the issuance of the initial decision.
PFR File, Tab 1 at 1, Tab 5 at 2; IAF, Tab 22 at 1.6
of discretion, the Board will not reverse an administrative judge’s determination
regarding sanctions. Leseman, 122 M.S.P.R. 139, ¶ 6.
Although the appellant argues on review that he “did not have the proper
representation from the union and was not able to get an attorney in time,” the
Board has held that an appellant’s difficulty in obtaining a representative does not
excuse his failure to prosecute his appeal by failing to comply with the Board’s
orders. PFR File, Tab 1 at 1; see Williams, 116 M.S.P.R. 377, ¶ 11. When the
appellant failed to appear for the June 11, 2020 prehearing conference, the
administrative judge left a voicemail at the appellant’s telephone number of
record providing detailed instructions on how to dial in to the teleconference, and
she kept the conference line open for 15 minutes. IAF, Tab 19 at 1.
The appellant did not appear or return the administrative judge’s call. Id.
He also failed to comply with the administrative judge’s order compelling him to
respond to the agency’s discovery request, and he did not file a prehearing
submission. Id. at 2.
The appellant asserts on review that he “did not receive the conference
call” and did not receive the “letter” from the administrative judge “until July 17,
2020 from [his] previous landlord.” PFR File, Tab 1 at 1. In its response to the
petition for review, the agency correctly noted that, following the discovery
conference, the administrative judge served all orders on the appellant via email,
including the order amending the time of the prehearing conference. PFR File,
Tab 4 at 8-9; IAF, Tab 13 at 6, Tab 15 at 2, Tab 19 at 4. The record contains no
evidence suggesting that this order or the order to show cause was served on the
appellant via U.S. Mail at a physical address. Presuming that the “letter” to
which the appellant refers is the order to show cause, he has failed to explain why
he did not receive the order served on him at his email address of record or why
he did not follow up after receiving the administrative judge’s voicemail on the
date of the prehearing conference. PFR File, Tab 1 at 1; IAF, Tab 19 at 1, 4,
Tab 22 at 1. Similarly, he has not explained how he “did not receive the7
conference call” when the administrative judge’s order amending the time of the
prehearing conference, which was also served via email, provided detailed
instructions for the teleconference. PFR File, Tab 1 at 1; IAF, Tab 15 at 1-2;
Tab 22 at 1. Moreover, the appellant confirmed during the discovery conference
that he had access to his email address of record and agreed to email service, and
he provided the administrative judge with the same email address in his request to
reschedule the prehearing conference. IAF, Tab 13 at 4 n.2, Tab 22 at 1. He has
also stated on petition for review that he can be reached by email at this same
address. PFR File, Tab 5. Finally, the appellant submitted his petition for review
via email and did not explain why he could not have submitted pleadings via
email after the administrative judge waived the prohibition against the use of
email due to the Board’s operational difficulties during the ongoing COVID-19
pandemic. PFR File, Tab 1 at 1; IAF, Tab 13 at 3-4; see 5 C.F.R. § 1201.12
(permitting an administrative judge to waive a Board regulation, for good cause
shown and providing notice to the parties, unless a statute requires application of
the regulation); 5 C.F.R. § 1201.14(d) (prohibiting the filing of pleadings via
email).
The administrative judge afforded the appellant 6 days to respond to the
show cause order and then waited an additional 5 days before issuing the initial
decision. Cf. Holland v. Department of Labor , 108 M.S.P.R. 599, ¶ 11 (2008)
(affording the appellant 2 days to respond to the show cause order did not allow
sufficient time for the appellant to receive the mailed order and submit a mailed
response). If an appellant is not given enough time to respond, a subsequent
untimely response does not necessarily evidence a lack of diligence or
negligence. Id. Here, however, the appellant failed to submit a response until
1 month after the issuance of the initial decision, and he did not address the
detailed voicemail that the administrative judge left him on the day of the
prehearing conference or the fact that the order was served on him by email.
IAF, Tab 22 at 1. 8
For the forgoing reasons demonstrating the appellant’s repeated failure to
comply with Board orders, and because the administrative judge explicitly warned
him that failure to respond to the show cause order would result in the dismissal
of his appeal for lack of prosecution, we find that the appellant failed to exercise
due diligence in prosecuting his appeal. See Leseman, 122 M.S.P.R. 139, ¶ 7
(finding that, by failing to take any steps to pursue her appeal until her filed her
petition for review, despite being warned that her failure to participate may result
in dismissal of the appeal with prejudice, the appellant failed to exercise due
diligence in pursuing her appeal); cf. Wiggins v. Department of the Air Force ,
113 M.S.P.R. 443, ¶¶ 13-14 (2010) (finding the sanction of dismissal too severe
when the administrative judged never specifically warned the appellant of his
intent to dismiss the appeal for lack of prosecution and the appellant had
previously taken affirmative steps in pursuing his appeal, including participating
in a telephonic status conference and filing responsive pleadings).
Accordingly, we find that the administrative judge did not abuse her discretion in
imposing the sanction of dismissal with prejudice, and we affirm the initial
decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
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.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 forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 13
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | Covington_Anthony_G_DC-0752-20-0450-I-1_Final_Order.pdf | 2024-11-21 | null | DC-0752-20-0450-I-1 | NP |
339 | https://www.mspb.gov/decisions/nonprecedential/Lemond_Sonya_M_SF-844E-21-0333-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SONYA M. LEMOND,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-21-0333-I-1
DATE: November 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sonya M. Lemond , San Bernardino, California, pro se.
Heather Dowie and Shaquita Stockes , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision issued by the Office of Personnel
Management (OPM) dismissing, as untimely filed, the appellant’s request for
reconsideration of the denial of her disability retirement application. On petition
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
for review, the appellant argues that she is disabled and requests assistance with
having her disability retirement application reviewed on the merits. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 4
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Lemond_Sonya_M_SF-844E-21-0333-I-1_Final_Order.pdf | 2024-11-21 | SONYA M. LEMOND v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-21-0333-I-1, November 21, 2024 | SF-844E-21-0333-I-1 | NP |
340 | https://www.mspb.gov/decisions/nonprecedential/Egan_William_H_CH-0831-20-0593-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DR. WILLIAM H. EGAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0831-20-0593-I-1
DATE: November 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paul M. Egan , Chicago, Illinois, for the appellant.
Karla W. Yeakle and Maureen A. Kersey , Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision by the Office of Personnel Management (OPM)
recalculating his Civil Service Retirement System (CSRS) annuity to eliminate
credit for post-1956 military service. Generally, we grant petitions such as this
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
An annuitant who retires after September 7, 1982, may receive credit for
active duty military service performed after 1956, under both the CSRS and the
Social Security Act, if he deposits an amount equal to 7% of his post -1956
military pay, plus interest, with the Civil Service Retirement and Disability Fund.
5 U.S.C. § 8334(j). If an annuitant fails to make such a deposit, then when he
becomes eligible for Social Security benefits, OPM must recalculate the annuity
payment to eliminate credit for post-1956 military service. 5 U.S.C. § 8332(j)(1).
OPM’s regulations provide that those who retire on or after October 1, 1983, must
make such a deposit before their separation from service, unless the failure to
make the deposit is the result of administrative error. 5 C.F.R. § 831.2104(a).
Accordingly, the Board will order OPM to permit a post-separation deposit if
there was administrative error by the individual’s employing agency or OPM and
the failure to make the deposit prior to retirement was the product of that
administrative error. King v. Office of Personnel Management , 97 M.S.P.R. 307,
¶¶ 4, 15 (2004), aff’d sub nom. Grant v. Office of Personnel Management , 126 F.
App’x 945 (Fed. Cir 2005); 5 C.F.R. § 831.2107(a)(1).2
The Board has found administrative error in the following situations:
(1) when the employee can show that he relied on misinformation in electing not
to make the deposit; (2) when an application package contains obvious errors or
internal inconsistencies, in which case OPM or the employing agency has an
obligation to investigate and resolve the problem before processing the
application; or (3) when the employee elected to make the deposit and the
paperwork is in order, but neither the employing agency nor OPM followed
through to ensure the deposit was made. King, 97 M.S.P.R. 307, ¶ 12 n.2. It is
undisputed that situation (3) does not apply in this case.
Regarding situation (1), our reviewing court has held that the Government
commits administrative error when an employee, at the time of the election,
requests information about the amount of the deposit or the failure to make the
deposit and the Government’s response either misrepresents the dollar amounts in
question or is so indirect, inaccurate, or incomplete as to confuse or mislead the
employee regarding the amount of the deposit or the effect of any failure to make
the deposit on the annuity recalculation. McCrary v. Office of Personnel
Management, 459 F.3d 1344, 1349 (Fed. Cir. 2006). However, as the
administrative judge found, the record is devoid of evidence that the appellant
made such an inquiry and that his employing agency or OPM then affirmatively
misled him about the military deposit requirement or the dollar amounts in
question. Indeed, the appellant now contends that he was entirely unaware of the
post-1956 deposit requirement prior to 2020. Petition for Review (PFR) File,
Tab 1 at 6.
On review, the appellant asserts that situation (2) applies, i.e., that there
was an obvious error or inconsistency in the retirement application package
because he did not receive any paperwork or counseling explaining the post-1956
deposit requirement. PFR File, Tab 1 at 5-8. However, he does not dispute that
Schedule A of Standard Form (SF) 2801 (1990 version) and OPM Form 1515,
both of which indicate that he declined to make such a deposit, bear his signature.3
Initial Appeal File (IAF), Tab 8 at 49, 59. The Board has held that the 1990
version of SF 2801 and Section B of its accompanying instructions are reasonably
designed to inform an applicant of the opportunity to make a deposit for
post-1956 military service and the consequences of not making the deposit.
Thomas v. Office of Personnel Management , 107 M.S.P.R. 334, ¶ 16 (2007);
King, 97 M.S.P.R. 307, ¶ 7. OPM Form 1515 and its accompanying instructions
similarly provide adequate information concerning the applicant’s rights to make
the military deposit and the consequences of failing to do so. IAF, Tab 8
at 59-60; see Thomas, 107 M.S.P.R. 334, ¶¶ 5, 16.
We are mindful that the appellant claims he did not receive the instructions
accompanying SF 2801. PFR File, Tab 1 at 6-7; see IAF, Tab 8 at 43-46.
However, the signed page of Schedule A instructs the applicant to refer to
Section B of those instructions, and includes the following warning: “You must
pay [the] deposit to your agency before separation. You cannot pay OPM after
your retire.” IAF, Tab 8 at 49. In addition, the signed page of OPM Form 1515
includes the following statement:
If you are a CSRS employee who was first employed before
October 1, 1982, and you are entitled (or will be entitled at age 62)
to a Social Security benefit that includes credit for post-1956
military service, you must either make a deposit for the military
service or have your annuity benefits reduced at age 62.
Id. at 59. Furthermore, by signing OPM Form 1515, the appellant indicated that
he had read the accompanying instructions, which include more detailed
information concerning his right to make the military deposit. Id. at 59-60; see
Thomas, 107 M.S.P.R. 334, ¶¶ 5, 16. If the appellant did not receive the
instruction sheets, his decision not to request them would have been the result of
his failure to read the information on the forms themselves. Thomas,
107 M.S.P.R. 334, ¶ 16. Hence, even if we were to assume that the alleged
failure of the employing agency to provide the instruction sheets for SF 2801 and/4
or OPM Form 1515 constituted administrative error, the appellant’s failure to
make the deposit was not due to that error. Id.
We have also considered the appellant’s argument that the deadline for
making the deposit should be waived on equitable grounds based on OPM’s
failure to recalculate his annuity until 18 years had passed since he became
eligible for Social Security benefits. PFR File, Tab 1 at 9-10. It is true that
recovery of an annuity overpayment may be found unconscionable in cases where
there is an exceptionally lengthy delay by OPM in adjusting an annuity. Aguon v.
Office of Personnel Management , 42 M.S.P.R. 540, 550 (1989). However, as the
appellant concedes, the issue of whether he is entitled to waiver of recovery of
the alleged overpayment is not at issue in this appeal. PFR File, Tab 1 at 10. The
appellant has not identified any authority for the proposition that OPM’s delay in
recalculating his annuity could warrant waiver of the deadline for filing a deposit
for his post-1956 military service. While we do not excuse OPM’s negligence,
the deadline for the appellant to pay the deposit had already passed upon his
retirement, years before the recalculation of his annuity should have first taken
place, i.e., when he became eligible for Social Security benefits at age 62.
Accordingly, we find no basis for further review of the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
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
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
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 Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Egan_William_H_CH-0831-20-0593-I-1_Final_Order.pdf | 2024-11-21 | DR. WILLIAM H. EGAN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0831-20-0593-I-1, November 21, 2024 | CH-0831-20-0593-I-1 | NP |
341 | https://www.mspb.gov/decisions/nonprecedential/Harding_Joseph_E_AT-0714-20-0161-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH ERNEST HARDING,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-20-0161-I-1
DATE: November 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph Ernest Harding , Birmingham, Alabama, pro se.
Kimberly Kaye Ward , Esquire, and Glynneisha Bellamy , Esquire, Decatur,
Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115
(5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we
conclude that the petitioner has not established any basis under section 1201.115
for granting the petition for review. Therefore, we DENY the petition for review
and AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
BACKGROUND
¶2The appellant was a Federal employee until he retired under the Federal
Employees’ Retirement System (FERS) in March 2017. Initial Appeal File (IAF),
Tab 6 at 6. Following his retirement, he received a competitive service
appointment with the agency as a reemployed annuitant. Id. at 7. His salary in
that position was offset for his FERS annuity payments. IAF, Tab 13. Effective
November 22, 2019, the agency removed the appellant from his position and
advised him that he could seek review of the action by appealing to the Board.
IAF, Tab 3 at 1-4. The appellant did so. IAF, Tab 1 at 3.
¶3The administrative judge held a status conference, during which the
appellant stated that he was a reemployed annuitant. IAF, Tab 8 at 1. Based on
the appellant’s representation, the administrative judge advised the parties that
this raised a jurisdictional issue. Id. The administrative judge issued an order to
show cause notifying the appellant that the Board may not have jurisdiction to
adjudicate his appeal if he was a reemployed annuitant receiving an annuity at the
time of his removal. IAF, Tab 10. The appellant filed a response to the show
cause order. IAF, Tab 12. The agency filed a motion to dismiss for lack of2
jurisdiction. IAF, Tab 6. The administrative judge subsequently issued an initial
decision dismissing the appeal for lack of jurisdiction without holding the
appellant’s requested hearing based on his finding that the appellant was a
reemployed annuitant when he was removed and, therefore, had no right to appeal
that action to the Board. IAF, Tab 1 at 2, Tab 15, Initial Decision (ID).
¶4The appellant filed a petition for review, and the agency filed a response in
opposition. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5The 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). In an adverse action appeal,
an appellant is entitled to a hearing on jurisdiction if he makes a nonfrivolous
claim of Board jurisdiction, at which he must prove jurisdiction by preponderant
evidence. SanSoucie v. Department of Agriculture , 116 M.S.P.R. 149, ¶ 16
(2011); 5 C.F.R. § 1201.56(b)(2)(i)(A). Nonfrivolous allegations are allegations
of fact that, if proven, could establish that the Board has jurisdiction over the
matter at issue. Walker v. Department of the Army , 119 M.S.P.R. 391, ¶ 6 n.2
(2013); 5 C.F.R. § 1201.4(s).
The appellant failed to nonfrivolously allege that he was an employee with Board
appeal rights.
¶6It is undisputed that the appellant received annuity payments while he was
employed with the agency. IAF, Tab 13. Thus, the administrative judge correctly
determined that the appellant was a reemployed annuitant and served at the will
of the appointing authority. ID at 3-4; see 5 U.S.C. § 3323(b)(1); Garza
v. Department of the Navy , 119 M.S.P.R. 91, ¶ 9 (2012). As such, we agree with
the administrative judge that the appellant had no right to appeal his separation to
the Board. Garza, 119 M.S.P.R. 91, ¶ 9.3
¶7On review, the appellant does not dispute that he was receiving an annuity
while employed by the agency. PFR File, Tab 1. He argues that, under
5 C.F.R. § 553.201(f), the agency was required to ask the Office of Personnel
Management (OPM) to waive the annuity offset of his pay. Id. at 5-6. He also
states that he did not decide to waive or decline annuitant pay. Id. The appellant
also reasserts that he was not a probationary employee at the time he was
removed. Id. He provides documentation showing that he had prior service in the
same agency and references documents that the agency submitted with its agency
file, specifically personnel actions taken against him in his prior position, as
evidence of the agency’s intent to obscure the fact that he completed his probation
period. Id. at 5, 7-8. As explained below, none of these arguments provide a
basis to disturb the initial decision.
¶8The appellant’s argument regarding any obligation on the part of the agency
to request that OPM waive the offset is unavailing. Absent a waiver,
an Executive agency is required to reduce the pay of a reemployed annuitant by
the amount of his annuity. 5 U.S.C. § 8468(a), (f). To the extent that the
appellant argues that it was the agency’s responsibility to waive or decline
annuity payments on his behalf, he has not identified a law, rule, or regulation
that imposes such an obligation on an employing agency. He appears to conflate
5 C.F.R. § 553.201 and 5 C.F.R. § 841.803. Under section 553.201, on a case-by-
case basis, and in limited circumstances, an agency may request that OPM
approve reemployment of a retired employee without reducing his pay for his
annuity. The agency, and not the retired employee, must make the request to
waive reduction. 5 C.F.R. § 553.201. On the other hand, under
section 841.803(a), “[a]n annuitant may decline to accept all or any part of the
amount of his . . . annuity by a waiver signed and filed with OPM.” 5 C.F.R. §
841.803(a). The retired employee, and not the agency, may make the request to
waive payment of the annuity under this provision. See id. Unless a reemployed
annuitant does so, he is considered an at-will employee with no right to appeal to4
the Board. Terrill v. Merit Systems Protection Board , 610 F. App’x 982, 984
(Fed. Cir. 2015) (citing Vesserv. Office of Personnel Management , 29 F.3d at 604,
605-06 (Fed. Cir. 1994) (recognizing that an individual can waive his annuity
under the Civil Service Retirement System)); see also 5 U.S.C. § 8465(a)
(reflecting that a FERS annuitant can waive all or part of his annuity).2
¶9Additionally, although the appellant asserts that the agency sought
to conceal his status as a tenured Federal employee, the evidence does not support
his claim. The agency issued a notice of proposed removal and removal
decision reflecting that it believed he had the right to appeal to the Board under
38 U.S.C. § 714. IAF, Tab 14 at 15-18, 26-28. Further, as to the two documents
the appellant submits on review reflecting that he completed his
probationary period, the agency provided one of these same documents below.
PFR File, Tab 1 at 7; IAF, Tab 14 at 129. It states that the appellant’s “initial
probationary period [was] completed.” IAF, Tab 14 at 129. Thus, we discern no
deception by the agency.
¶10In any event, the appellant’s argument and documents showing that he was
not a probationary employee do not change the outcome in this case.
Tenured employees of the Department of Veterans Affairs, like the appellant,
generally may appeal their removals to the Board under Department of Veterans
Affairs Accountability and Whistleblower Protection Act of 2017, Pub. L.
No. 115-41, 131 Stat. 862 (2017) (VA Accountability Act), codified at
38 U.S.C. § 714. However, as discussed above, this right does not extend to
reemployed annuitants. 5 U.S.C. § 3323(b)(1). Thus, the appellant’s
probationary status at the time of his employment with the agency is not relevant,
as he was an at-will employee. Although this case arises under the VA
Accountability Act, and not chapter 75, the administrative judge found
section 3323(b)(1) nonetheless applied to the appellant’s separation. ID at 3-4.
2 The Board may rely on unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit if it finds the court’s reasoning persuasive, as we do here.
Special Counsel v. Coffman , 124 M.S.P.R. 130, ¶ 56 n.10 (2017).5
We agree. The stated intention of the VA Accountability Act was “to improve
accountability of employees of the [agency].” Pub. L. No. 115-41, 131 Stat. 862
(2017). This is inconsistent with interpreting the act to provide greater rights to
the appellant than to employees of other Federal agencies, who may be entitled to
adjudicate an adverse action under chapter 75. See Garza, 119 M.S.P.R. 91, ¶ 9
(applying section 3323(b)(1) to the separation of an appointee at an agency other
than DVA prior to the enactment of the VA Accountability Act).
¶11Accordingly, we affirm the initial decision that dismissed the petition for
review 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 your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If 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 particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you7
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If 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
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Harding_Joseph_E_AT-0714-20-0161-I-1_Final_Order.pdf | 2024-11-21 | JOSEPH ERNEST HARDING v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-20-0161-I-1, November 21, 2024 | AT-0714-20-0161-I-1 | NP |
342 | https://www.mspb.gov/decisions/nonprecedential/Lybbert_TimothySF-0752-19-0498-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY D. LYBBERT,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-19-0498-I-1
DATE: November 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Saku E. Ethir , Riverside, California, for the appellant.
Robert Aghassi , Barstow, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal for misconduct. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
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).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that 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 account for the fact that the appellant was provoked and his
coworker received a lesser penalty for his part in the same verbal altercation, we
AFFIRM the initial decision.
BACKGROUND
The appellant was a GS-07 Police Officer for the agency. Initial Appeal
File (IAF), Tab 4 at 9. On April 12, 2019, the agency proposed the appellant’s
removal based on one charge of “Use of Racially Offensive Language.” Id. at 26-
28. The agency specified as follows:
On 21 September 2018, while in building 168, your co-worker . . .
stated to you “I can’t believe you haven’t been motherf[---]ing shot
for wearing that shirt,” or words to that effect, in reference to your
Donald Trump related shirt. You responded to [your coworker], “I
am surprised that you haven’t been lynched for being black” or
words to that effect.[2]
Id. at 26. After the appellant responded, the deciding official issued a decision
removing him effective May 16, 2019. Id. at 9-16.
2 The appellant’s coworker, another Police Officer, was suspended for 14 days for his
part in the incident. Hearing Recording 1, Track 1 at 08:40 (testimony of the
appellant’s coworker).2
The appellant filed a Board appeal, disputing the charge and the penalty.3
IAF, Tab 1 at 6-7. After a hearing, the administrative judge issued an initial
decision sustaining the appellant’s removal. IAF, Tab 15, Initial Decision (ID).
She found that the agency proved its charge, ID at 6-10, established nexus,
ID at 10-11, and showed that the removal penalty was reasonable, ID at 12-15.
The appellant has filed a petition for review, alleging that the
administrative judge was biased against him, disputing the administrative judge’s
conduct of the hearing, and challenging the penalty determination. Petition for
Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
ANALYSIS
In an appeal of a removal under 5 U.S.C. chapter 75, the agency bears the
burden of proving by preponderant evidence that its action was taken for such
cause as would promote the efficiency of the service. MacDonald v. Department
of the Navy, 4 M.S.P.R. 403, 404 (1980); 5 U.S.C. § 1201.56(b)(1)(ii). To meet
this burden, the agency must prove its charge, establish a nexus between the
charge and the efficiency of the service, and demonstrate that the penalty imposed
was reasonable. Pope v. U.S. Postal Service , 114 F.3d 1144, 1147 (Fed. Cir.
1997).
In this case, the administrative judge found that the agency carried its
burden on these issues. ID at 10-11. The appellant does not dispute these matters
on review, and we find that they are supported by the record.
The appellant’s petition for review focuses on the administrative judge’s
conduct of the hearing, procedural rulings, and alleged bias. PFR File, Tab 1
at 11-15. The appellant also addresses the issue of penalty and the alleged bias of
the deciding official. Id. at 16-19.
3 The appellant also raised an affirmative defense of whistleblower reprisal, but he later
withdrew it. IAF, Tab 1 at 6-7, Tab 11 at 2.3
The appellant has not identified any improper procedural ruling by the
administrative judge that affected the outcome of the appeal.
An administrative judge has broad discretion to govern the proceedings
before her, including the authority to rule on witnesses and regulate the course of
the hearing. Townsel v. Tennessee Valley Authority , 36 M.S.P.R. 356, 359
(1988); see 5 C.F.R. § 1201.41(b)(6), (8). In this case, the appellant argues that
the administrative judge abused her discretion by disallowing follow-up questions
of the Operations Officer who investigated the underlying incident and by
disallowing the appellant as a witness. PFR File, Tab 1 at 10-15.
We have reviewed the testimony of the Operations Officer in its entirety,
and we see no abuse of discretion in the administrative judge’s ruling not to allow
further examination of this witness. Hearing Recording 1 (HR 1), Tracks 4-5
(testimony of the Operations Officer). After both parties had two rounds of
questioning, the administrative judge asked additional questions of this witness
and then excused her. HR 1, Track 4, Track 5 at 00:00-40:20 (testimony of the
Operations Officer). The appellant’s attorney objected, arguing that she should
be permitted to ask additional questions based on the administrative judge’s
questions, which raised some “significant issues” for the first time. HR 1, Track
5 at 40:30. When the administrative judge asked about these “significant issues,”
the appellant’s attorney identified “training,” “availability of watch
commanders,” “what [the Operations Officer] has done since she completed the
investigation,” “Hatch Act training,”4 “No FEAR training,”5 “[the Operations
Officer’s] understanding of what lynching is,” standard operating procedures, and
statements that the Operations Officer took from other employees. Id. at 42:20.
The administrative judge overruled the objection. Id.
4 An Act to Prevent Pernicious Political Activities, Pub. L. No. 76-252, 53 Stat. 1147
(1939), codified as amended at 5 U.S.C. chapter 73, subchapter III.
5 Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002,
Pub. L. No. 107-174, 116 Stat. 566.4
We agree with the administrative judge’s assessment. Although these
issues are relevant to this appeal, the Operations Officer’s testimony about them
was not material to the outcome. The Operations Officer’s testimony on these
issues did not provide any new information that was damaging to the appellant’s
case. For the most part, the administrative judge’s questions opened the way for
testimony that might have been favorable to the appellant, even if it ultimately
was not. A possible exception was the Operations Officer’s testimony concerning
whether the watch commander would be the appropriate person to whom the
appellant should have reported a threat. HR, Track 5 at 28:15 (testimony of the
Operations Officer). The appellant alleged that his coworker had threatened to
shoot him and that his lynching comment was a reaction to that threat, but the
administrative judge found that the appellant’s failure to report the incident to the
watch commander undermined his allegation of threat. ID at 9. However, even if
the watch commander was unavailable at the time the incident occurred, the
evidence would still show that there were other individuals in the immediate
vicinity to whom the appellant could have gone if he had actually felt threatened
by his coworker’s remarks. ID at 9. None of the other issues upon which the
appellant wished to pose follow-up questions figured into the initial decision.
Nor has the appellant explained on petition for review what testimony he hoped to
elicit from further questioning of the Operations Officer or how such testimony
might have been material to the outcome of the appeal. For these reasons, we
find that the administrative judge did not abuse her discretion by disallowing
further examination of this witness and that her ruling in this regard did not
prejudice the appellant’s substantive rights. See Niece v. U.S. Postal Service , 13
M.S.P.R. 99, 102 (1982); Karapinka v. Department of Energy , 6 M.S.P.R. 124,
127 (1981).
We next address the administrative judge’s ruling to disallow the appellant
as a witness. After the last approved witness finished his testimony, the
appellant’s attorney requested that the appellant be permitted to testify in5
rebuttal. Hearing Recording 2 (HR 2), Track 16 at 00:30. The administrative
judge sustained the agency’s objection to the appellant’s testimony. She found
that neither party had listed the appellant as a witness in their prehearing
submissions, and that the appellant chose not to avail himself of two subsequent
opportunities that the administrative judge afforded him to get on the witness
list.6 HR 2, Track 17 at 2:20-10:50.
On petition for review, the appellant argues that the administrative judge
abused her discretion in disallowing him as a witness because he stated in his
prehearing submission that he “reserved the right to call additional witnesses,
based on the presentation of the Agency’s case in chief.” PFR File, Tab 1
at 12-14. The appellant also argues that, to the extent that the agency might have
been prejudiced by the administrative judge allowing his testimony, this problem
could have been remedied by allowing the appellant to testify on a future date,
thus giving the agency additional time to prepare its examination. PFR File,
Tab 1 at 14-15.
As an initial matter, we find that the administrative judge did not abuse her
discretion in disallowing the appellant as a witness. See Perez v. Department of
the Air Force, 37 M.S.P.R. 32, 38 (1988) (finding that the administrative judge
did not abuse his discretion in disallowing appellant’s testimony in light of the
appellant’s previous failure, despite numerous opportunities, to indicate his desire
to include himself as a witness). Although there are circumstances that might
warrant the inclusion of previously unforeseen witnesses based upon issues that
might arise during an agency’s case in chief, we do not find those circumstances
present here. Even if prejudice to the agency’s case could have been mitigated by
bifurcating the hearing, we still find that the administrative judge was operating
6 In her prehearing conference summary, the administrative judge wrote, “The appellant
was not listed as a witness by either party. If this was an oversight, please advise the
undersigned by September 12, 2019.” IAF, Tab 11 at 2. Prior to the start of the
September 30, 2019 hearing, the administrative judge again asked whether the appellant
intended to testify, and the appellant’s attorney replied that he did not. HR at 10:25
(the administrative judge and counsel’s witness discussion).6
well within her authority to conduct orderly and expeditious proceedings.
See 5 C.F.R. § 1201.41(b). Furthermore, the appellant has not shown that he was
prejudiced by the administrative judge’s ruling because he has not explained what
his testimony would have been or how it would have been material to the outcome
of the appeal. See Christopher v. Defense Logistics Agency , 44 M.S.P.R. 264,
269 (1990).
We observe that the appellant couches his arguments in due process terms,
arguing that the administrative judge denied him due process by disallowing
additional examination of the Operations Officer and disallowing testimony from
the appellant himself. PFR File, Tab 1 at 12, 15. Due process in this context
entails a fair opportunity to secure an independent review of an agency’s action,
including a hearing at which the appellant may call and examine witnesses.
See Muzzipapa v. Department of Veterans Affairs , 53 M.S.P.R. 53, 58 (1992).
For the reasons explained above, we discern no violation of due process; the
appellant has not shown that the administrative judge abused her discretion in
regulating the course of the hearing, much less that any of her contested rulings
prejudiced his substantive rights. See Zell v. Department of the Army ,
57 M.S.P.R. 86, 88 (1993).
The appellant has not shown that the administrative judge was biased.
The appellant argues that the administrative judge was biased against him,
as evidenced by the way she conducted the hearing. PFR File, Tab 1 at 7-12.
He argues that the administrative judge interrupted his attorney’s examination
multiple times and questioned witnesses favorable to the appellant in an
aggressive and condescending manner, effectively acting as an advocate for the
agency. Id. at 8-12. In making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct
during the course of a Board proceeding will warrant a new adjudication only if7
the administrative judge’s comments or actions evidence “a deep-seated
favoritism or antagonism that would make fair judgment impossible.” Bieber v.
Department of the Army , 287 F.3d 1358, 1362-63 (Fed.Cir.2002)
(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).
Having considered the appellant’s arguments and reviewed the portions of
the hearing recording that he cites in support, we find that he has not shown that
the administrative judge was biased. We disagree that the administrative judge’s
questioning of witnesses conflicted with her role as a neutral adjudicator.
An administrative judge enjoys broad discretion under our regulations in
controlling the course of the hearing under 5 C.F.R. § 1201.41(b), and may
question witnesses and elicit testimony at hearings in order to assure that the facts
of the case are clearly and fully developed. Clarry v. Department of
Transportation, 18 M.S.P.R. 147, 150 (1983), aff’d, 795 F.2d 1016 (Fed. Cir.
1986) (Table). There is no indication in this case that the administrative judge
knew in advance what the answers to her questions would be. Her questions
could have just as easily elicited testimony favorable to the appellant as
testimony favorable to the agency. HR 1, Track 5 at 10:10-40:20. Our review of
the hearing, including the specific portions that the appellant cites on petition for
review, revealed no statements by the administrative judge suggesting favoritism
toward the agency or any other indication of partiality, much less “deep-seated
favoritism or antagonism that would make fair judgment impossible.” Smets v.
Department of the Navy , 117 M.S.P.R. 164, ¶ 15 (2011), aff’d per curiam , 498 F.
App’x 1 (Fed. Cir. 2012). We find that the assertive tone and manner with which
the administrative judge conducted the hearing were appropriate and likewise do
not substantiate the appellant’s allegations of bias. See Scoggins v. Department
of the Army, 123 M.S.P.R. 592, ¶ 19 (2016).8
The appellant has not shown that bias by the deciding official deprived her of
due process.
It appears to be undisputed that the deciding official was involved in prior
disciplinary actions against the appellant, previously made derogatory statements
about the appellant, and said during the investigation of the appellant’s most
recent misconduct that he was going to fire him. ID at 14-15; HR 2, Track 9
at 22:30, 38:50 (testimony of the deciding official). Nevertheless, the
administrative judge found that, however inappropriate the deciding official’s
comments might have been, “his behavior does not prohibit appropriate discipline
being taken against an employee based on their own misconduct in the
workplace.” ID at 15. The appellant disputes this finding, arguing that the
administrative judge erred when she failed to weigh and consider testimony about
these matters. PFR File, Tab 1 at 18-19.
However, as set forth above, the administrative judge did consider
testimony about this matter. ID at 14-15. A deciding official’s familiarity with
the facts of the case and expressed predisposition contrary to the appellant's
interests does not constitute a due process violation or harmful error. Martinez v.
Department of Veterans Affairs , 119 M.S.P.R. 37, ¶ 11 (2012). This is so even if
the deciding official had gone so far as to concur previously in the desirability of
taking the adverse action against the employee. Id. We find that the appellant
has not shown that the agency’s selection of a deciding official made the risk of
unfairness to him intolerably high. See Holton v. Department of the Navy , 123
M.S.P.R. 688, ¶ 30 (2016), aff’d, 884 F.3d 1142 (Fed. Cir. 2018).
The agency proved the reasonableness of the penalty.
Because all the agency’s charges are sustained, the Board’s authority to
review the penalty is limited. Cantu v. Department of the Treasury , 88 M.S.P.R.
253, ¶ 4 (2001). Specifically, the Board reviews an agency-imposed penalty only
to determine if the agency considered all of the relevant factors and exercised
management discretion within tolerable limits of reasonableness. Id.9
In determining whether the selected penalty is reasonable, the Board gives due
deference to the agency’s discretion in exercising its managerial function of
maintaining employee discipline and efficiency, recognizing that the Board’s
function is not to displace management’s responsibility but to assure that
management judgment has been properly exercised. Id. Thus, the Board will
disturb an agency’s chosen penalty only if it finds that the agency failed to weigh
relevant factors or that the agency’s judgment clearly exceeded the limits of
reasonableness. Id.
In this case, the administrative judge found that the deciding official
appropriately weighed the relevant factors in arriving at his penalty
determination. ID at 13-14. She agreed with the deciding official that the
appellant’s failure to take responsibility for his misconduct reflected poorly on
his rehabilitative potential, particularly in light of his four prior disciplinary
suspensions. ID at 13-14; IAF, Tab 4 at 73-78. She also considered the deciding
official’s loss of trust and confidence in the appellant and the appellant’s status as
a law enforcement officer as aggravating factors. ID at 13-14; see Watson v.
Department of Justice , 64 F.3d 1524, 1530 (Fed. Cir. 1995) (finding that law
enforcement officers are held to a higher standard of conduct than are other
Federal employees). The administrative judge acknowledged the appellant’s
length of service and good work performance, but she found that these mitigating
factors did not outweigh the aggravating ones. ID at 14.
In reaching his penalty determination, the deciding official considered the
appellant’s response to the notice of proposed removal, but he found it
unpersuasive. HR 2, Track 5 at 1:04:00 (testimony of the deciding official).
As explained above, the appellant’s explanation for his action was that his
comment about lynching was a reaction to what he perceived as his
coworker’s death threat. According to the appellant, when his coworker saw his
Trump-related shirt, he asked the appellant whether he wanted to get shot, and
later at the end of the exchange, told the appellant, “Stand by to stand by,” which10
was an allusion to practice at the firing range. IAF, Tab 4 at 44; HR 1, Track 3 at
24:15 (testimony of the Watch Commander). The appellant’s coworker denied
using those words and maintained that he did not threaten the appellant. IAF, Tab
4 at 32; HR 1, Track 1 at 22:00 (testimony of the appellant’s coworker). The
deciding official, who was also the deciding official regarding the coworker’s
14-day suspension, considered both versions of events, but he found the
coworker’s version to be more credible and determined that the appellant was not
responding to a threat. HR 2, Track 5 at 1:04:00, 1:21:30 (testimony of the
deciding official).
On petition for review, the appellant argues that the administrative judge
failed to consider several factors related to penalty. PFR File, Tab 1 at 16-18.
First, the appellant argues that the administrative judge failed to consider several
facts concerning his coworker’s credibility and other facts bearing on whether it
was reasonable for the appellant to feel threatened. Id. at 16-17.
However, regardless of whether the appellant’s coworker actually intended to
make a threat and whether a reasonable person in the appellant’s situation might
have felt threatened, the evidence shows that the appellant did not, in fact, feel
threatened. As the administrative judge explained, the appellant’s actions during
and after the exchange with his coworker were not those of an individual who
actually felt threatened. ID at 9. Rather, we find it most likely that the appellant
made the statement about lynching not out of fear or to deescalate the situation,
but out of anger because he was offended by his coworker’s inappropriate
remarks.
Second, the appellant argues that the administrative judge failed to consider
that his coworker was the instigator of the incident. PFR File, Tab 1 at 17.
The appellant is correct that provocation by others can constitute a mitigating
penalty factor, and we find that it is a mitigating factor in this case. Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 305 (1981). The appellant’s coworker
instigated the altercation, and we find that the appellant was justifiably angry at11
his coworker’s remarks. See, e.g., Wilburn v. U.S. Postal Service , 28 M.S.P.R.
524, 525, 527 (1985) (mitigating a removal for physical assault when, among
other things, the appellant’s misconduct was provoked by a racial slur). There is
no indication that the administrative judge considered this factor in her penalty
analysis, and so we modify the initial decision to account for it.
Third, the appellant argues that the administrative judge failed to consider
that his comments were not racially motivated. PFR File, Tab 1 at 17-18.
We give no credence to the appellant’s assertion that his lynching-related
comment directed at an African American coworker was not racially motivated.
Fourth, the appellant argues that the administrative judge failed to consider
that he and his coworker had previously maintained a professional relationship.
PFR File, Tab 1 at 17. An employee’s past work record, including performance
and ability to get along with fellow workers, is a relevant penalty factor.
Douglas, 5 M.S.P.R. at 305. However, both the deciding official and the
administrative judge considered the appellant’s satisfactory work record and
found that it did not overcome the seriousness of his misconduct, his disciplinary
record, and his lack of rehabilitative potential. ID at 14.
Fifth, the appellant argues that the administrative judge failed to consider
that he had no prior complaints or discipline related to allegations of the same or
similar conduct. PFR File, Tab 1 at 17. We find the appellant’s argument
unpersuasive. The administrative judge correctly found that the appellant’s prior
discipline was an aggravating factor even though it was not based on similar
misconduct. ID at 14. The Board will not discount a prior action considered by
an agency on the basis that the prior action was unrelated in nature to the action
on appeal. Lewis v. Department of the Air Force , 51 M.S.P.R. 475, 484 (1991).
Sixth, the appellant argues that the administrative judge should have
considered the agency’s failure to submit its table of penalties for the record.
PFR File, Tab 1 at 17. We agree with the appellant that the table of penalties was
relevant, but if the appellant believed that information contained in the table of12
penalties might have undermined the agency’s case, he could have sought it
through discovery. Based on the extant record, we see no reason to doubt the
proposing official’s assertion that the table of penalties allows for removal for a
first offense of discourteous or inappropriate comments. IAF, Tab 4 at 27.
Seventh and finally, the appellant argues that the administrative judge
failed to consider that his coworker suffered only a 14-day suspension for his role
in the incident. PFR File, Tab 1 at 6, 16-17. Among the factors an agency should
consider in setting the penalty for misconduct is “consistency of the penalty with
those imposed upon other employees for the same or similar offenses.”
Douglas, 5 M.S.P.R. at 305. When an employee raises an allegation that he
received more severe discipline than another employee, the proper inquiry is
whether the agency knowingly treated employees differently “in a way not
justified by the facts, and intentionally for reasons other than the efficiency of the
service.” Facer v. Department of the Air Force , 836 F.2d 535, 539 (Fed. Cir.
1988). In this case, the appellant’s and his coworker’s misconduct was similar to
the extent that it consisted of inappropriate statements that they made during the
same verbal altercation. In addition, the deciding official was clearly aware that
these two individuals received different penalties because he was the deciding
official in both cases. HR 2, Track 5 at 1:04:00 (testimony of the deciding
official). However, we find that the agency justified the disparity in penalties due
to the appellant’s four prior disciplinary suspensions and the racial nature of his
remarks. Moreover, consistency of the penalty is only one factor among many for
an agency to consider in arriving at a penalty determination. Singh v. U.S. Postal
Service, 2022 MSPB 15, ¶ 18.
Having considered the appellant’s arguments on review, we find
insufficient basis to mitigate the removal penalty. Even considering that the
appellant’s coworker instigated the underlying altercation and was given a lesser
penalty, we find that the appellant’s significant disciplinary record, status as a
law enforcement officer, lack of remorse, and continued attempts to rationalize13
his misbehavior outweigh the mitigating factors, and that the agency’s chosen
penalty is fully supported by the record.
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.14
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on15
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or16
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 17
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.18 | Lybbert_TimothySF-0752-19-0498-I-1_Final_Order.pdf | 2024-11-21 | TIMOTHY D. LYBBERT v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-19-0498-I-1, November 21, 2024 | SF-0752-19-0498-I-1 | NP |
343 | https://www.mspb.gov/decisions/nonprecedential/Martinez_Johanna_E_PH-3443-20-0260-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHANNA ELIZABETH MARTINEZ,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-3443-20-0260-I-1
DATE: November 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert B. Nealon , Esquire, Alexandria, Virginia, for the appellant.
Brian M. Anderson , Esquire, Aberdeen Proving Ground, Maryland, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant reasserts her argument that the Board
has jurisdiction over her claims of prohibited personnel practices under 5 U.S.C.
§ 2302. Petition for Review (PFR) File, Tab 1 at 10-16; Initial Appeal File (IAF),
Tab 11 at 11-13.2 After considering the appellant’s argument, we find that it was
adequately addressed by the administrative judge in the initial decision, and we
discern no basis to disturb her finding that the appellant has failed to assert a
nonfrivolous allegation3 of Board jurisdiction over her appeal. IAF, Tab 18,
Initial Decision at 3-4; see Pridgen v. Office of Management and Budget ,
117 M.S.P.R. 665, ¶ 7 (2012); see also Solamon v. Department of Commerce ,
119 M.S.P.R. 1, ¶ 14 (2012) (finding that, in the absence of an otherwise
2 For the first time on review, the appellant has submitted a copy of an amicus curiae
brief filed by the Office of Special Counsel on January 29, 2020, in a separate Board
proceeding involving different parties. PFR File, Tab 1 at 20-31. Even considering this
documentation, we find that it does not warrant a different outcome of this appeal. See
Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (finding that the Board
generally will not grant a petition for review based on new evidence absent a showing
that it is of sufficient weight to warrant an outcome different from that of the initial
decision).
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).2
appealable action, the Board lacked jurisdiction to review the appellant’s claim
that the agency violated merit system principles). Moreover, the parties’
disagreement on review regarding the merits of the appealed matter is immaterial
to the dispositive jurisdictional issue. PFR File, Tab 3 at 6-9, Tab 4 at 4-6; see
Morrison v. Department of the Navy , 122 M.S.P.R. 205, ¶ 11 (2015) (declining to
reach the appellant’s claim on review of prohibited personnel practices because it
was not relevant to the threshold jurisdictional issue).
Accordingly, we affirm the initial decision dismissing this appeal for lack
of jurisdiction.4
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
4 In reply to the agency’s response to the petition for review, the appellant’s attorney
representative states that the appellant “has sought administrative remedy from the
[Office of Special Counsel (OSC)] by request dated on or about July 14, 2020.” PFR
File, Tab 4 at 8. This Final Order does not preclude the appellant from filing a separate
individual right of action (IRA) appeal with the Board’s regional office after exhausting
her administrative remedies before OSC. See Corthell v. Department of Homeland
Security, 123 M.S.P.R. 417, ¶ 8 (2016) (setting forth the jurisdictional burdens and
elements of proving jurisdiction in a typical IRA appeal), overruled on other grounds
by Requena v. Department of Homeland Security , 2022 MSPB 39. To timely file an
IRA appeal, she must file with the Board within 65 days after the issuance of OSC’s
closure letter or, if no closure letter has been issued, at any time after the expiration of
120 days from when she first sought corrective action from OSC. 5 U.S.C. § 1214(a)
(3); Hamley v. Department of the Interior , 122 M.S.P.R. 290, ¶ 8 (2015); 5 C.F.R. §
1209.5(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.3
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Martinez_Johanna_E_PH-3443-20-0260-I-1_Final_Order.pdf | 2024-11-21 | JOHANNA ELIZABETH MARTINEZ v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-3443-20-0260-I-1, November 21, 2024 | PH-3443-20-0260-I-1 | NP |
344 | https://www.mspb.gov/decisions/nonprecedential/Fox_Sarah_K_DC-1221-23-0122-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SARAH K. FOX,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-1221-23-0122-W-1
DATE: November 20, 2024
THIS ORDER IS NONPRECEDENTIAL1
Sarah K. Fox , Stoughton, Massachusetts, pro se.
Kirsten Z. Kuitu , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
VACATE the initial decision, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2During the period at issue in this appeal, the appellant was employed in
various positions as a Foreign Service Officer within the U.S. and Foreign
Commercial Service (Commercial Service) branch of the International Trade
Administration (ITA). Initial Appeal File (IAF), Tab 1 at 1, Tab 5 at 4-5. In
July 2019, she was assigned as the Principal Commercial Officer, FS-02, at the
U.S. Consulate General in Calgary, Canada. IAF, Tab 1 at 1, 9. In August 2019,
the appellant discovered that the agency’s computer server and server backup
tapes were being housed in an unsecured kitchen area and reported the discovery
to her supervisory chain. IAF, Tab 5 at 18-30. After further discussion with her
supervisory chain and agency information technology (IT) officials, arrangements
were made for the backup tapes to be sent to an agency office in Washington,
D.C., for processing and for the server to be relocated to a secure area. Id.
However, although 35 server tapes were originally sent to Washington D.C., only
27 of the tapes were ever actually received. Id. at 40-65.
¶3On November 30, 2022, the appellant filed the instant IRA appeal alleging
that the agency curtailed her overseas tour of duty, denied her a detail
opportunity, and harassed her in retaliation for her protected disclosures
regarding IT security concerns. IAF, Tab 1 at 4, 6. She requested a hearing on
her appeal. Id. at 2. With her appeal, the appellant provided a copy of a
close-out letter from the Office of Special Counsel (OSC) dated September 26,
2022. Id. at 9.
¶4The administrative judge issued a jurisdictional order apprising the
appellant of the applicable law and burden of proof requirements for an IRA
appeal and instructing her to submit evidence and argument establishing Board
jurisdiction over her appeal. IAF, Tab 3. The administrative judge directed the2
appellant to file a statement that detailed each of her alleged protected disclosures
or activities and retaliatory personnel actions, identified the dates on which she
made the disclosures or engaged in the activities and to whom she made her
disclosures, and provided an explanation for how she exhausted each specific
claim with OSC. Id. at 7.
¶5After the parties submitted their jurisdictional pleadings, IAF, Tabs 5-6, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction, IAF, Tab 8, Initial Decision (ID) at 1, 17. She determined that the
only disclosures that the appellant exhausted were her disclosures of retaliation,
sexism, and racism to OSC and the Equal Employment Opportunity Commission
(EEOC) in December 2019. ID at 6-12. Alternatively, the administrative judge
concluded that even if the appellant exhausted her administrative remedies as to
her remaining alleged protected disclosures with OSC, she failed to
nonfrivolously allege that her disclosures concerned the type of wrongdoing
described under 5 U.S.C. § 2302(b)(8). ID at 13-17. As to the appellant’s
December 2019 OSC and EEOC disclosures, the administrative judge considered
whether these disclosures were protected activities within the scope of 5 U.S.C.
§ 2302(b)(9)(A)(i). ID at 12-13. She concluded that these disclosures were not
protected activities because the appellant did not raise a claim of reprisal for
whistleblowing to OSC or the EEOC. ID at 13.
¶6The appellant has timely filed a petition for review of the initial decision
and a supplement to her petition for review. Petition for Review (PFR) File,
Tabs 1-2. The agency has filed a response in opposition to the petition for
review. PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7On review, the appellant argues that she contacted OSC regarding her
alleged whistleblowing activity in 2019 and exhausted her complaints with OSC
“multiple times at multiple levels,” and that the administrative judge erred by3
finding that she failed to exhaust her administrative remedies. PFR File, Tab 1
at 4-6. The appellant also alleges that the initial decision inaccurately recounted
the timeline of events and requests a “full review” of her claims alleging
retaliation for her disclosures of fraud, waste, abuse, and IT security issues. Id. at
6-7. Finally, the appellant alleges that new and material evidence exists
regarding her claims, and she provides copies of two documents with her petition
for review. Id. at 5, 8-29. She also attaches additional documents with her first
supplemental petition for review pleading and submits a second and third
supplemental petition for review, as well as a motion for leave to file an
additional pleading. PFR File, Tabs 2, 5, 10, 12.
We grant the agency’s motion to strike the appellant’s second supplement to her
petition for review and deny the appellant’s motion for leave to file an
additional pleading.
¶8The agency has filed a motion to strike the appellant’s second supplement to
her petition for review, observing that although the petition for review
acknowledgment letter granted the appellant’s request for an extension of time to
file a second supplement to her petition for review on or before September 1,
2023, the appellant did not do so until September 6, 2023, and did not provide an
explanation for her untimeliness or seek leave from the Clerk of the Board to file
the untimely pleading. PFR File, Tab 3 at 1, Tab 6 at 5. A late filed pleading
must be accompanied by a motion that shows good cause for the untimely filing
unless the Board has specifically granted an extension of time or a motion for an
extension is pending. 5 C.F.R. § 1201.114(g). The party filing the motion must
provide an explanation of the reasons for failing to request an extension,
accompanied by supporting documentation or other evidence. Id. The appellant
has failed to explain why she was unable to timely file or request a further
extension of time to file her second supplement to her petition for review.
Accordingly, we grant the agency’s motion and strike the untimely second4
supplement to the appellant’s petition for review and have not considered it in
reaching our decision in this matter.
¶9Additionally, on April 3, 2024, after the record closed on review, the
appellant filed a request for leave to file an additional pleading alleging that she
had new evidence regarding “adverse actions of intimidation, coercion, and
harassment” by her agency. PFR File, Tab 10 at 3. She alleged that the new
pleading was necessary to “underscore[] and demonstrate[] the unfettered
retaliation of whistleblowers” at the agency and asserted that the evidence was
not available before the record closed in her appeal. Id. Based on the appellant’s
representations in her pleading, it appears that the purportedly new evidence
relates to actions taken by the agency that postdate the filing of her Board appeal
and thus could not have been exhausted in her complaint to OSC at issue in this
IRA appeal. Id. As such, the appellant has not explained how this purportedly
new evidence is relevant to the issue of Board jurisdiction over her IRA appeal.
See Cleaton v. Department of Justice , 122 M.S.P.R. 296, ¶ 7 (2015) (explaining
that the Board will not consider evidence submitted for the first time on review
absent a showing that the evidence is of sufficient weight to warrant an outcome
different from that of the initial decision), aff’d, 839 F.3d (Fed. Cir. 2016).
Consequently, we conclude that she has not demonstrated that any such evidence
is material to her appeal, and we DENY her request for leave to file an additional
pleading. See 5 C.F.R. § 1201.114(a)(5), (k).
The appellant exhausted her remedy with OSC regarding all of her disclosures
and activities and one personnel action.
¶10To establish Board jurisdiction over an IRA appeal, an appellant must
exhaust her administrative remedies before OSC and make nonfrivolous
allegations that (1) she made a protected disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)
(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity was a
contributing factor in the agency’s decision to take or fail to take a personnel5
action as defined by 5 U.S.C. § 2302(a)(2)(A). See Chambers v. Department of
Homeland Security , 2022 MSPB 8, ¶¶ 5, 10, 14. An appellant in an IRA appeal
must prove by preponderant evidence that she exhausted her administrative
remedies by seeking corrective action from OSC before seeking corrective action
from the Board. 5 U.S.C. § 1214(a)(3); Chambers, 2022 MSPB 8, ¶¶ 10-11; 115
C.F.R. § 1201.57(c)(1). “[T]he Board’s jurisdiction . . . is limited . . . to those
issues that were previously raised with OSC.” Chambers, 2022 MSPB, ¶ 10
(quoting Miller v. Merit Systems Protection Board , 626 F. App’x 261, 267 (Fed.
Cir. 2015)).
¶11The substantive requirements of exhaustion are met when an appellant
provides OSC with a sufficient basis to pursue an investigation; however, an
appellant may give a more detailed account of her whistleblowing activity before
the Board than she did to OSC. Chambers, 2022 MSPB 8, ¶ 10 (citing Briley v.
National Archives and Records Administration , 236 F.3d 1373, 1378 (Fed. Cir.
2001)). An appellant may demonstrate exhaustion through her initial OSC
complaint, correspondence with OSC, or other sufficiently reliable evidence, such
as an affidavit or declaration attesting that she raised with OSC the substance of
the facts in the MSPB appeal. Id., ¶ 11. An appellant’s unrebutted attestation on
her Appeal Form that she raised with OSC the substance of the facts in her appeal
is sufficient to prove exhaustion. See id., 2022 MSPB 8, ¶ 11 n.7.
¶12In the initial decision, the administrative judge summarized the appellant’s
appeal as alleging that she was subjected to retaliatory personnel actions in
reprisal for the following protected disclosures or activities: her disclosure of
possible violations of IT security policies to her supervisory chain starting around
August 7, 2019 (disclosure 1); her disclosure of the same possible IT security
issues to the agency’s Office of the Inspector General (OIG) in May 2020
(disclosure 2); her disclosure of the potential theft of the server backup tapes to
her supervisory chain on or around January 23, 2020 (disclosure 3); and her6
complaints to OSC, through the equal employment opportunity (EEO) process,
and to the OIG starting in late 2019 (disclosure/protected activity 4). ID at 5.
Disclosures 1 and 3
¶13For disclosure 1, the administrative judge determined that although the
appellant described the nature of this disclosure in her IRA appeal as alleging
“possible violations of IT security policies . . . to her supervisory chain,” OSC’s
close-out letter identified only OSC, the EEOC, the agency’s EEO office, and the
OIG as the parties to whom she made that disclosure. ID at 6. For disclosure 3,
the appellant’s claim that she disclosed the potential theft of the server backup
tapes to her supervisory chain on or around January 23, 2020, the administrative
judge determined that, as with disclosure 1, the appellant’s OSC complaint did
not include any allegation that she raised this disclosure with her supervisors. As
to both disclosures 1 and 3, the administrative judge also found that the appellant
did not provide evidence demonstrating that she amended her OSC complaint to
include her alleged supervisory disclosures, and OSC’s close-out letter did not
identify them. ID at 6-7, 9-10. As a result, the administrative judge concluded
that the appellant also failed to exhaust these disclosures with OSC. ID at 7, 10.
¶14We disagree with these findings. As the administrative judge observed, the
section of the appellant’s OSC complaint addressing the nature of her disclosures
discuss her allegations of retaliation, sexism, and racism, and wrongdoing in
connection with a monitoring investigation within the agency’s Investigations and
Threat Management Service during the period from May through June 2022. IAF,
Tab 5 at 130-31. However, the appellant also identified that the wrongdoing she
disclosed while serving in her position in Canada concerned “serious IT security
issues and theft (at the very least).” Id. at 132. She also identified several
officials in her supervisory chain as retaliating officials and noted that all of those
officials were accused in, and aware of, her disclosures. Id. at 131-32. Later in
her complaint, she again identified that she disclosed “multiple fraudulent
activities, security issues, and theft at the U.S. Consulate Calgary.” Id. at 135. 7
¶15With her Board appeal, the appellant gave additional context to these claims
by providing emails demonstrating that she had disclosed the unsecured server
and the lost backup tapes to numerous officials in her supervisory chain; and she
reiterated in her jurisdictional response, submitted under penalty of perjury, that
her complaint to OSC concerned these allegations and that agency officials
retaliated against her because of her disclosure of violations of IT regulations and
policies. IAF, Tab 5 at 10, 18-30, 40-65; Chambers, 2022 MSPB 8, ¶¶ 10-11 &
n.7. Finally, as indicated in its notice to the appellant that it was terminating her
inquiry, OSC recognized as one of the core issues of her complaint that she had
alleged retaliation by agency officials for her disclosure of “information
technology concerns at the Consulate General Calgary in 2019.” IAF, Tab 1 at 9.
Based on the foregoing, we find that the appellant proved that she provided OSC
with a sufficient basis to pursue an investigation into her claim that she disclosed
the IT security issues and the lost server backup tapes to her supervisory chain.
We conclude that the appellant exhausted alleged disclosures 1 and 3.
Disclosure 2 and disclosure/protected activity 4
¶16For disclosure/protected activity 4, which concerns the appellant’s
complaints to OSC, the OIG, and the agency’s EEO office and/or the EEOC,
starting in late 2019, the administrative judge determined that the appellant
exhausted her administrative remedies regarding her complaints to OSC and
through the EEO process starting in late 2019. ID at 10-12. We agree. As the
administrative judge correctly noted, the appellant identified in her OSC
complaint that she had made “multiple disclosures to OSC since 2019,” and
identified OSC, the EEOC, and the agency’s EEO office, the Office of Civil
Rights, as parties to whom she made her disclosures “since 2019 when [she]
arrived at U.S. Consulate Calgary.” IAF, Tab 5 at 130-31, 134. OSC also
identified the appellant’s “series of complaints with OSC and [the agency’s]
equal employment opportunity office” beginning in 2019 as matters it
investigated in its September 26, 2022 close-out letter. Id. at 172. Accordingly,8
the administrative judge correctly concluded that the appellant exhausted her
administrative remedies regarding her claim that she engaged in protected activity
under 5 U.S.C. § 2302(b)(9) in connection with these complaints.
¶17Conversely, the administrative judge concluded that the appellant failed to
exhaust her claim that she made a protected disclosure or engaged in a protected
activity in connection with her complaint to the agency’s OIG because she failed
to identify whether she provided a copy of her May 29, 2020 OIG complaint to
OSC or to explain the nature of the information she provided about her OIG
complaint to OSC, and so OSC could not have had a sufficient basis upon which
to pursue an investigation leading to corrective action. ID at 10-11. We disagree
and instead conclude that the evidence the appellant has provided is sufficient for
the purpose of proving that she exhausted this claim with OSC.
¶18In her OSC complaint, the appellant identified the OIG as one of several
entities to whom she made her protected disclosures. IAF, Tab 5 at 131.
Although the appellant did not specify the dates on which she disclosed
information to the OIG in her OSC complaint, she generally identified that she
had been making disclosures to the various entities “since 2019.” Id. at 131, 134.
With her jurisdictional response, the appellant provided a June 2, 2020 email
from the agency’s OIG acknowledging receipt of her OIG hotline complaint on
May 29, 2020, as well as a copy of the interview questions and her responses
pertaining to her complaint. Id. at 66-78. She also clarified in her jurisdictional
response, filed under penalty of perjury, that her complaint to the OIG concerned
possible violations of IT security policies. Id. at 3, 9, 13, 130-36. Although the
administrative judge identified a single reference in the appellant’s jurisdictional
response to an OIG complaint dated May 20, 2020, there is no other indication in
the record that the appellant filed any other complaint with the OIG that was
exhausted by OSC’s September 26, 2022 close-out letter.2 IAF, Tab 5 at 13, 172.
2 Given the closeness in time between the May 20, 2020 and May 29, 2020 dates, as
well as the fact that the disclosures the appellant alleged she raised in relation to the
purported May 20, 2020 complaint concern the exact same IT security failures as were9
Accordingly, we conclude that she exhausted with OSC her protected activity of
filing a complaint with the OIG on or about May 29, 2020.
¶19The administrative judge separately considered the appellant’s claim that
she disclosed the IT security issues to the agency’s OIG as a potential protected
disclosure under 5 U.S.C. § 2302(b)(8) (disclosure 2) and as a protected activity
under 5 U.S.C. § 2302(b)(9)(C) but concluded that the appellant failed to exhaust
both claims. ID at 7-12. Disclosing information to an agency’s OIG is protected
activity under 5 U.S.C. § 2302(b)(9)(C) regardless of its content. Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶ 62. Therefore, we need not
separately consider whether the appellant exhausted the disclosures she made to
the OIG in her May 2020 complaint.
Retaliatory personnel actions
¶20Because the administrative judge determined that the appellant failed to
exhaust her claimed disclosures and activity, she did not address whether the
appellant exhausted any alleged personnel actions. The Board has jurisdiction
when the appellant exhausts her administrative remedies before OSC and makes a
nonfrivolous allegation that at least one alleged personnel action was taken in
reprisal for at least one alleged protected disclosure. Skarada v. Department of
Veterans Affairs , 2022 MSPB 17, ¶ 13. Although the appellant raised a number
of alleged personnel actions to OSC, the only personnel action she has raised
during the course of this appeal is the September 2022 denial of a detail
opportunity by the Acting Director of the U.S. Export Assistance Center (her
then-first-line supervisor), with the input of the Chief of Workforce Relations and
Planning (her former second-line supervisor) and the Mid-Atlantic Regional
Director of ITA (her subsequent second-line supervisor). IAF, Tab 5 at 14-15,
130-36, 172. Therefore, we focus on that alleged personnel action. The appellant
provided copies of emails between herself and OSC dated September 22, 2022,
identified in the copy of the May 29, 2020 OIG complaint the appellant provided with
her jurisdictional response, the reference to May 20, 2020 date is more likely than not
an inadvertent typographical error. IAF, Tab 5 at 9, 13, 68-78.10
identifying that these officials denied her the requested detail opportunity. Id. at
153-56, 164-70. Further, OSC referenced the detail denial in its close-out letter.
Id. at 172. Accordingly, we conclude that the appellant exhausted her
administrative remedy with respect to the denial of a detail.3
¶21In summary, we agree with the administrative judge that the appellant
exhausted her administrative remedies with OSC regarding her claims that she
filed a prior OSC complaint and an EEO complaint. However, we disagree with
the administrative judge’s finding that the appellant failed to exhaust her claim
that she disclosed possible violations of IT security policies to her supervisory
chain in 2019, and the potential theft of the server backup tapes to her
supervisory chain on or around January 23, 2020. We also disagree with her
finding that the appellant failed to exhaust her claim that she made a protected
disclosure or engaged in protected activity in connection with her May 2020 OIG
complaint and instead conclude that she exhausted that claim. Finally, we
conclude that the appellant exhausted her claim that she was subjected to a
personnel action in connection with her nonselection for a detail opportunity in
September 2022.
The appellant nonfrivolously alleged that she was subjected to a personnel action.
¶22Nonselections and decisions on details constitute personnel actions for the
purpose of an IRA appeal. 5 U.S.C. § 2302(a)(2)(A)(i), (iv); see Ruggieri v.
Merit Systems Protection Board , 454 F.3d 1323, 1325-27 (Fed. Cir. 2006)
(holding that a nonselection for a position is a failure to take a personnel action
under 5 U.S.C. § 2302(b)(8) within the scope of the Board’s IRA jurisdiction).
Accordingly, we conclude that the appellant nonfrivolously alleged that she was
3 The issue of jurisdiction is always before the Board and may be raised by either party
or sua sponte by the Board at any time during a Board proceeding. Moncada v.
Executive Office of the President, Office of Administration , 2022 MSPB 25, ¶ 12.
Therefore, the appellant may raise additional alleged personnel actions on remand,
consistent with the administrative judge’s orders. We make no findings here as to the
Board’s jurisdiction over any additional such alleged personnel actions.11
subjected to a retaliatory personnel action when her then-first-line and
second-line supervisors denied her a detail opportunity in September 2022.4
The appellant nonfrivolously alleged that she made protected disclosures and
engaged in protected activity.
The appellant nonfrivolously alleged that her disclosures concerning
IT security failures were protected under 5 U.S.C. § 2302(b)(8)
¶23The administrative judge alternatively found that, even if the appellant
exhausted disclosures 1 and 3 with OSC, she nevertheless failed to nonfrivolously
allege that a reasonable person in her position would have believed her
disclosures evidence any category of wrongdoing described in 5 U.S.C. § 2302(b)
(8). ID at 13-17. Specifically, the administrative judge determined that the
appellant’s alleged disclosures of “violations of IT security policies” to various
agency officials were unprotected for the following reasons: (1) her claims were
broad and generalized and did not clearly implicate an identifiable violation of
law, rule, or regulation, (2) the appellant raised merely hypothetical risks to the
agency, she expressed her concerns equivocally, and her concerns did not rise to
the level of gross mismanagement, (3) the appellant contemplated potential
alternative explanations for the apparent theft of the server backup tapes, and so
her “vague accusation” did not constitute a nonfrivolous allegation of a violation
of a law, rule, or regulation, and (4) the appellant was unable to identify any
agency policy, directive, or regulation that she believed may have been violated
by the IT security issues she identified. ID at 14-17.
4 In framing the allegations in her jurisdictional response, the appellant alleged both
that she was subjected to a personnel action when she was “denied the opportunity to
apply for a detail,” and that her supervisor was personally responsible for the decision
“to deny her the detail. . . .” IAF, Tab 5 at 14-15. It is unclear from the record whether
the appellant actually applied for and was denied this detail opportunity, and whether
her supervisor’s support was required in order for her to apply for the detail. IAF,
Tab 5 at 157-70. This distinction is not dispositive at the jurisdictional stage, but it
may become important in determining whether the appellant proves on the merits that
she suffered a personnel action.12
¶24We disagree and instead conclude that the appellant’s disclosures of the
improperly secured server and lost server backup tapes identified in disclosures 1
and 3 would be, if proven, protected under 5 U.S.C. § 2302(b)(8). See 5 C.F.R.
§ 1201.4(s) (defining a nonfrivolous allegation as an assertion that, if proven,
could establish the matter at issue). A protected disclosure is a disclosure of
information that an appellant reasonably believes evidences a violation of any
law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public health or safety.
Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 12 (2014). A reasonable
belief exists if a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the appellant could reasonably conclude
that the actions of the Government evidence one of the categories of wrongdoing
listed in section 2302(b)(8)(A). Scoggins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 11 (2016).
¶25The appellant alleged in disclosures 1 and 3 that the agency endangered the
security and integrity of its IT systems by maintaining its computer server in an
unsecured location that was accessible to non-citizens employed by the agency
abroad and by handling the server backup tapes in a manner that made them
susceptible to theft, resulting in several tapes being lost while in transit to
Washington, D.C. IAF, Tab 5 at 5-6, 8-9, 18-30, 40-65, 123-46. The appellant
broadly identified these concerns as “serious IT security issues” in her OSC
complaint and provided emails with her jurisdictional response showing that she
expressed similar concerns to her supervisory chain. Id. at 18, 132. The agency
subsequently addressed her concerns by purchasing additional equipment to
properly store and secure the servers and by arranging for transportation of the
server backup tapes to storage for safekeeping. Id. at 20-30.
¶26Although an individual must ordinarily identify the specific law, rule, or
regulation that was violated in order to make a protected disclosure, the Board
has nevertheless held that an individual need not identify a statutory or regulatory13
provision by a particular title or number “when the employee’s statements and the
circumstances surrounding the making of those statements clearly implicate an
identifiable violation of law, rule, or regulation.” Ayers v. Department of the
Army, 123 M.S.P.R. 11, ¶ 24 (2015) (quoting, as corrected here, Langer v.
Department of the Treasury , 265 F.3d 1259, 1266 (Fed. Cir. 2001)). The Board
has held that disclosures of similar allegations of wrongdoing so obviously
implicated a violation of law, rule, or regulation that the appellant was not
required to identify any specific law, rule, or regulation that was violated. See
Daniels v. Department of Veterans Affairs , 105 M.S.P.R. 248, ¶¶ 10, 12 (2007)
(concluding that an appellant’s disclosures outlining a number of IT security
problems in her office, including password sharing, unauthorized use of data and
information systems, access to the computer room by unauthorized persons, and
falsification of security reports “so obviously implicate[d] a violation of law,
rule, or regulation” that the appellant did not have to identify any specific law,
rule, or regulation that was violated to meet her jurisdictional burden in an IRA
appeal), disagreed with on other grounds by Delgado v. Merit Systems Protection
Board, 880 F.3d 913, 923 (7th Cir.), as amended on denial of reh’g and reh’g en
banc (7th Cir. 2018) ; DiGiorgio v. Department of the Navy , 84 M.S.P.R. 6, ¶ 14
(1999) (acknowledging that some allegations of wrongdoing, such as theft of
Government property, so obviously implicated a violation of law, rule, or
regulation, that an appellant need not identify any particular law, rule, or
regulation). Accordingly, we conclude that the appellant could have reasonably
believed that her disclosures concerning the improper storage and transportation
of the agency’s IT systems described in disclosures 1 and 3 evidenced potential
violations of laws, rules, or regulations, and so she nonfrivolously alleged that
she made protected disclosures under 5 U.S.C. § 2302(b)(8) in connection with
these claims.14
The appellant nonfrivolously alleged that her December 2019 OSC
complaint and her May 2020 OIG complaint constituted protected
activity under 5 U.S.C. § 2302(b)(9)(C)
¶27In concluding that the appellant failed to meet her jurisdictional burden
regarding her claim that the agency retaliated against her because of her OIG and
OSC complaints, the administrative judge considered the content of those
disclosures. ID at 10-13. We reach a different conclusion. It is a prohibited
personnel practice under 5 U.S.C. § 2302(b)(9)(C) to take a personnel action
against an employee because that employee engaged in the protected activity of
“cooperating with or disclosing information to the [OIG] . . . of an agency, or
[OSC], in accordance with applicable provisions of law.” As noted above, the
Board has concluded that disclosures under section 2302(b)(9)(C) are protected
regardless of their content. Pridgen, 2022 MSPB 31, ¶ 62. Therefore, the
appellant nonfrivolously alleged that she engaged in protected activity under
5 U.S.C. § 2302(b)(9)(C) by filing complaints with OSC in December 2019 and
the OIG in May 2020.
The appellant failed to nonfrivolously allege that she engaged in
protected activity in connection with her December 2019
EEO complaint
¶28The administrative judge determined that, as with the appellant’s
December 2019 OSC complaint, she exhausted her administrative remedies
regarding her complaint to the agency’s EEO office in December 2019, but the
complaint was not protected because it concerned allegations of discrimination
and did not seek to remedy a violation of 5 U.S.C. § 2302(b)(8). ID at 10-11.
We agree.
¶29In Edwards v. Department of Labor , the Board reaffirmed the longstanding
principle that disclosures protected under Title VII are not protected under
5 U.S.C. § 2302(b)(8) because employees seeking to remedy reprisal for such
disclosures have the right to seek redress through the EEO process. See Edwards,
2022 MSPB 9, ¶¶ 10-23, aff’d, No. 22-1967 (Fed. Cir. July 7, 2023); see also15
Young v. Merit Systems Protection Board , 961 F.3d 1323, 1329 (Fed. Cir. 2020)
(explaining that the Board lacks jurisdiction in an IRA appeal over a claim of
reprisal for filing an EEO complaint). Further, the Board found that an EEO
complaint that does not seek to remedy a violation of 5 U.S.C. § 2302(b)(9)(8) is
not protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) and thus is not within the
Board’s jurisdiction over activities falling within the scope of that provision.
Edwards, 2022 MSPB 9, ¶¶ 24-25. In describing the nature of the claims in her
December 2019 EEO complaint, the appellant alleged that she raised claims of
“retaliation . . . that was blatantly interwoven with sexism and racism.” IAF,
Tab 5 at 8, 130, 135. We agree with the administrative judge that because the
appellant did not allege that she sought to remedy whistleblower reprisal in her
EEO complaint, it was not within the scope of the Board’s IRA jurisdiction.
The appellant nonfrivolously alleged that disclosure 1 was a contributing factor in
the denied detail opportunity, and she is entitled to a hearing on the merits of
that claim.
Disclosure 1
¶30We now turn to the question of whether the appellant nonfrivolously alleged
that a disclosure or activity was a contributing factor in the agency’s decision not
to select her for a detail. See Skarada, 2022 MSPB 17, ¶ 19. To satisfy the
contributing factor criterion, an appellant need only raise a nonfrivolous
allegation that the fact of, or content of, the disclosure or activity was one factor
that tended to affect the personnel action in any way. Id. Whether the appellant’s
allegations can be proven on the merits is not part of the jurisdictional inquiry.
Lane v. Department of Homeland Security , 115 M.S.P.R. 342, ¶ 12 (2010).
Generally, the Board will consider an allegation nonfrivolous when, under oath or
penalty of perjury, an individual makes an allegation that is more than
conclusory, plausible on its face, and material to the legal issues in the appeal.
5 C.F.R. § 1201.4(s). 16
¶31One way to establish the contributing factor criterion is the
knowledge/timing test, under which an appellant may nonfrivolously allege that
the disclosure or activity was a contributing factor in the personnel action through
circumstantial evidence, such as evidence that the official taking the personnel
action knew of the disclosure or activity, and that the personnel action occurred
within a period of time such that a reasonable person could conclude that the
disclosure or activity was a contributing factor in the personnel action. 5 U.S.C.
§ 1221(e)(1); see Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 13
(2016). Regarding the knowledge prong of the 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 actual or constructive knowledge of the disclosure or
activity. See Wells v. Department of Homeland Security , 102 M.S.P.R. 36, ¶ 8
(2006). An appellant may establish an official’s constructive knowledge of a
protected activity by demonstrating that an individual with actual knowledge of
the disclosure or activity influenced the official accused of taking the retaliatory
action. Id. Also, at the jurisdictional stage, the appellant may be able to establish
the knowledge prong even if she did not specifically identify the agency official
responsible for a personnel action. See Cahill v. Merit Systems Protection Board ,
821 F.3d 1370, 1373-76 (Fed. Cir. 2016) (finding that, given the contextual clues
in the record, the petitioner made a nonfrivolous allegation of contributing factor
even though he did not specifically identify the agency officials who heard his
disclosures); see also Bradley v. Department of Homeland Security , 123 M.S.P.R.
547, ¶¶ 15-16 (2016) (finding that when the action at issue is a nonselection, an
appellant can satisfy her jurisdictional burden regarding contributing factor
without specifically identifying which management officials were responsible for
the decision).
¶32Concerning the knowledge prong of the test as applied to disclosure 1, the
appellant alleged in her jurisdictional response that she personally informed her17
former second-line supervisor about the unsecured server and server backup tapes
during the supervisor’s in-person visit to the U.S. Consulate in Calgary in
December 2019, and that this supervisor was involved in the decision to deny her
the detail opportunity. IAF, Tab 5 at 8, 14-15. Accordingly, she has met the
knowledge prong of the test.
¶33Regarding the timing prong of the test, personnel actions that occurred more
than 2 years after the alleged disclosure or activity are too remote in time to
satisfy the timing prong of the test. Pridgen, 2022 MSPB 31, ¶ 63. Accordingly,
the appellant has not satisfied the knowledge/timing test as to disclosure 1, which
occurred in August 2019, because it was too remote in time to the decision to
deny her the detail opportunity over 3 years later, in September 2022.
¶34However, the knowledge/timing test is not the only way to prove
contributing factor. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14
(2012). If an appellant fails to satisfy the knowledge/timing test, the Board must
consider other evidence, such as evidence pertaining to the strength or weakness
of the agency’s reasons for taking the personnel action, whether the
whistleblowing was personally directed at the proposing or deciding officials, and
whether these individuals had a desire or motive to retaliate against the appellant.
Chambers, 2022 MSPB 8, ¶ 15; Dorney, 117 M.S.P.R. 480, ¶ 15.
¶35Here, the appellant argued that in addition to her former second-line
supervisor to whom she made disclosure 1, her current first- and second-line
supervisors were also involved in the decision to deny her the detail opportunity.
IAF, Tab 5 at 14-15. She also argued that the evidence supporting her
supervisors’ stated reasons for denying her the detail opportunity were weak,
observing that her first-line supervisor offered several different explanations as to
why she was not eligible for the detail even though the external contact for the
detail position strongly encouraged her to apply for the position. Id. at 15,
158-70. The appellant also noted that her first-line supervisor involved her
former second-line supervisor (who was aware of disclosure 1) in the discussion18
about the detail opportunity and suggests that her former second-line supervisor
may have influenced her first-level supervisor in deciding to deny the appellant
the detail opportunity. Id. at 15. These assertions challenging the justifications
given for denying her the detail opportunity and questioning her second-line
supervisor’s motives for involving herself in that decision are relevant to the
non-knowledge/timing methods for establishing contributing factor. See
Chambers, 2022 MSPB 8, ¶ 15; Dorney, 117 M.S.P.R. 480, ¶ 15.
¶36Although the agency disputes the appellant’s characterization of the
importance of the inclusion of her second-line supervisor on these emails and
suggests that the appellant’s claims amount to “unsubstantiated speculation,”
IAF, Tab 6 at 10, we disagree. At the jurisdictional stage, an appellant does not
need to prove her allegations. Hessami v. Merit Systems Protection Board ,
979 F.3d 1362, 1367-69 (Fed. Cir. 2020). Rather, she need only allege sufficient
facts which, taken as true, “state a claim plausible on its face.” Id. at 1369.
Taking the appellant’s allegations as true, and with the recognition that her
burden at the jurisdictional stage is a low one, we conclude that she has
nonfrivolously alleged that her disclosure of the unsecured server and server
backup tapes in disclosure 1 was a contributing factor in the decision to deny her
the detail opportunity. 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
making a nonfrivolous allegation is low and requires only a minimally sufficient
allegation). Accordingly, remand of this appeal for a hearing on the merits of this
claim is appropriate. Although the appellant’s allegations are sufficient to meet
her jurisdictional burden, we emphasize that, on remand, she must prove by
preponderant evidence that this disclosure was a contributing factor in the single
covered personnel action. See generally Salerno , 123 M.S.P.R. 230, ¶ 5.19
Disclosure 3
¶37Regarding the knowledge prong of the knowledge/timing test as it relates to
disclosure 3, which concerned the appellant’s disclosure of the potential theft of
the server backup tapes on or around January 23, 2020, the appellant has not
alleged that she informed any of the officials responsible for denying her the
detail opportunity of this disclosure, and so she cannot meet the knowledge prong
of the knowledge/timing test.5 Additionally, the more than 2½-year period
between when the appellant disclosed the potential mishandling of the tapes in
January 2020 and when she was denied the opportunity to apply for the detail
position in September 2022 does not meet the timing prong of the test. See
Pridgen, 2022 MSPB 31, ¶ 63.
¶38We look now for other evidence, such as evidence pertaining to the strength
or weakness of the agency’s reasons for taking the personnel action, whether the
whistleblowing was personally directed at the proposing or deciding officials, and
whether these individuals had a desire or motive to retaliate against the appellant.
Although we have acknowledged the appellant’s argument that the agency’s
stated reasons for denying her the detail opportunity are weak, she has not
otherwise alleged that any of the officials involved in the decision to deny her the
detail opportunity had any awareness of the fact that the tapes were mishandled at
the time they made their decision—much less that they were involved in the
mishandling of the tapes or had any other desire or motive to retaliate against her
in connection with this disclosure. Dorney, 117 M.S.P.R. 480, ¶ 15.
Accordingly, we conclude that she has failed to nonfrivolously allege that this
disclosure was a contributing factor in the detail denial decision, and so she has
failed to meet her jurisdictional burden for this claim.
May 2020 OIG complaint (disclosure 2 and disclosure/protected activity 4)
5 Additionally, the tapes were not lost or potentially stolen until January 23, 2020, after
the date of the appellant’s in-person meeting with her former second-line supervisor in
December 2019, and so the misplaced tapes could not have been the subject of that
in-person conversation. IAF, Tab 5 at 14-15, 40-43. 20
¶39Regarding the timing prong of the test as to the appellant’s OIG complaint,
the more than 2-year gap between when the appellant contacted the OIG in
May 2020 and when she was denied the detail opportunity in September 2022 is
too remote to establish contributing factor. See Pridgen, 2022 MSPB 31, ¶ 63.
With respect to the knowledge prong of the test, the appellant broadly alleged in
her OSC complaint that agency officials “intensified retaliation” against her after
she engaged in protected activity by, among other things, filing her OIG
complaint, but she did not specifically allege that any of the agency officials
responsible for denying the detail opportunity were aware of her OIG complaint.
IAF, Tab 5 at 8, 134-36. She also does not allege or provide evidence in her
jurisdictional response that any of the officials involved in denying the detail
opportunity were aware of her OIG complaint. Id. at 4-15. Accordingly, the
appellant has failed to meet her burden of nonfrivolously alleging that her
complaint to OIG was a contributing factor in the decision to deny her the detail
opportunity based on the knowledge/timing test.
¶40The appellant also has not pointed to any other evidence that would support
a finding of contributing factor. Dorney, 117 M.S.P.R. 480, ¶ 15. None of the
officials she identified in her OIG complaint were involved in the decision to
deny her the detail opportunity, and she does not allege in her jurisdictional
response that any of those officials influenced any of the supervisors responsible
for the decision to deny her the detail opportunity, or that any official involved in
the detail decision had any motive to retaliate against her because of her
disclosure to the OIG. IAF, Tab 5 at 14-15, 66-78; cf. Cassidy v. Department of
Justice, 118 M.S.P.R. 74, ¶¶ 6, 9-11, 14 (2012) (concluding that the appellant
nonfrivolously alleged contributing factor by showing that the official to whom
he allegedly made a protected disclosure influenced the officials who made the
nonselection determination at issue). Accordingly, we conclude that the appellant
has also failed to establish contributing factor based on evidence other than21
knowledge/timing evidence, and so she failed to meet her jurisdictional burden
over this claim. See Dorney, 117 M.S.P.R. 480, ¶ 15.
December 2019 OSC complaint
¶41As with the other alleged disclosures and activities, the nearly 3-year gap
between when the appellant filed her December 2019 OSC complaint and when
the agency officials denied her the detail opportunity in September 2022 is too
remote to satisfy the timing prong of the knowledge/timing test. See Pridgen,
2022 MSPB 31, ¶ 63. With respect to the knowledge prong of the test, as with
her OIG complaint, the appellant broadly alleged to OSC that agency officials
“intensified retaliation” against her after she filed her prior December 2019 OSC
complaint but did not specifically allege that any of the agency officials
responsible for denying the detail opportunity were aware of her prior OSC
complaint. IAF, Tab 5 at 8, 134-36. Additionally, in her jurisdictional response,
the only official that the appellant appears to allege was implicated in her prior
OSC complaint is not one of the officials she alleged denied her the detail
opportunity. Id. at 8. Accordingly, she has failed to meet the knowledge prong
of the test.
¶42Regarding other types of evidence, the appellant has not provided a copy of
her December 2019 complaint to OSC, and the only information she has provided
about the nature of her prior OSC complaint is her assertion that it concerned
alleged harassment by the Counsel General of the Calgary Consulate, who she has
not alleged was involved in the decision to deny her the detail opportunity. Id.
at 8, 14-15. We note, however, that with her jurisdictional response, the
appellant has provided an email she sent to OSC dated September 16, 2022,
stating that her former second-line supervisor (one of the individuals she alleged
was responsible for the decision to deny her the detail opportunity) was “named
in [the appellant’s] . . . OSC matters” and was retaliating against her by asking
her to provide medical documentation for appointments. Id. at 153. The
appellant does not identify whether the former second-line supervisor was named22
in her then-ongoing OSC complaint, or her prior December 2019 OSC complaint,
and so it is difficult to discern whether she was alleging to OSC that her former
second-line supervisor retaliated against her because of her December 2019 OSC
complaint.6 Accordingly, the vagueness of the appellant’s allegations regarding
this alleged protected activity and her failure to provide additional context to her
claims makes this analysis of the Dorney factors difficult.
¶43As previously noted, the appellant has the burden of establishing
jurisdiction over her IRA appeal, which includes the burden of meeting the
contributing factor requirement. Although this is a lower burden than that
required to prove the merits of her claim, we nevertheless find that she has failed
to meet her burden here. Accordingly, we conclude that the appellant has failed
to nonfrivolously allege that her December 2019 OSC complaint was a
contributing factor in the decision to deny her the detail opportunity.
¶44In sum, we have made the following findings: the appellant exhausted her
administrative remedies regarding her disclosures about the unsecured computer
server and server backup tapes in August 2019 (disclosure 1), and the potentially
lost or stolen server backup tapes in January 2020 (disclosure 3), as well as her
protected activities of filing complaints through the EEO process in
December 2019, and with OSC in 2019 and the OIG in May 2020; and she has
also exhausted her administrative remedies regarding her claim that she was
denied a detail opportunity in September 2022. Further, she has nonfrivolously
alleged that she was subjected to a covered personnel action in connection with
her nonselection for the detail opportunity and that her disclosures about the
unsecured server and backup tapes were protected under 5 U.S.C. § 2302(b)(8),
and her complaints to OSC and the OIG were protected under 5 U.S.C. § 2302(b)
(9)(C). Additionally, the appellant nonfrivolously alleged that her disclosure of
the unsecured server and server backup tapes was a contributing factor in the
6 As we previously noted, however, the appellant did not identify her former
second-line supervisor by name in her July 2022 OSC complaint. IAF, Tab 5 at 123-46.23
detail nonselection decision, thereby meeting her jurisdictional burden in this IRA
appeal. However, the appellant has failed to nonfrivolously allege that her
remaining disclosures and protected activities were contributing factors in the
decision to deny her the detail opportunity.
¶45Because the appellant has met her jurisdictional burden with respect to
disclosure 1, remand is necessary to provide the appellant with her requested
hearing on the merits. On remand, the appellant must prove, by a preponderance
of the evidence, that disclosure 1 was a contributing factor in the agency’s
decision to deny her the detail opportunity. If the appellant makes such a
showing, the agency will have the opportunity to prove by clear and convincing
evidence that it would have denied her the detail opportunity even in the absence
of the appellant’s protected disclosure. 5 U.S.C. § 1221(e); Salerno,
123 M.S.P.R. 230, ¶ 5.24
ORDER
¶46For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.7
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
7 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.25 | Fox_Sarah_K_DC-1221-23-0122-W-1_Remand_Order.pdf | 2024-11-20 | SARAH K. FOX v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-1221-23-0122-W-1, November 20, 2024 | DC-1221-23-0122-W-1 | NP |
345 | https://www.mspb.gov/decisions/nonprecedential/Cincotta_Douglas_J_PH-0841-21-0025-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOUGLAS JAMES CINCOTTA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0841-21-0025-I-1
DATE: November 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Catherine Tierney , Arnold, Maryland, for the appellant.
Tanisha Elliott Evans , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying his application for Federal Employees’ Retirement System
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
(FERS) survivor annuity benefits. For the reasons discussed below, we GRANT
the appellant’s petition for review, VACATE the initial decision, and REVERSE
OPM’s reconsideration decision. For the reasons set forth below, we FIND that
the appellant is entitled to FERS survivor annuity benefits.
BACKGROUND
¶2The appellant and the decedent were married in a ceremony in the state of
Maryland on August 26, 2019, soon after the decedent was diagnosed with a
terminal illness. Initial Appeal File (IAF), Tab 6 at 27-28. Effective
September 30, 2019, the decedent retired under FERS from his position with the
General Services Administration. Id. at 29-42. In his retirement application, the
decedent indicated that he was electing a reduced retirement annuity to provide
the maximum survivor benefit to his spouse, the appellant. Id. at 29. On
January 25, 2020, the decedent passed away from his terminal illness. Id.
at 13, 26.
¶3On March 12, 2020, the appellant filed an application for FERS survivor
annuity benefits with OPM. IAF, Tab 6 at 21-25. On July 1, 2020, OPM denied
the appellant’s application, concluding that he was not entitled to an annuity
because he and the decedent were not married for at least 9 months prior to the
decedent’s death. Id. at 15-16; see 5 U.S.C. §§ 8441(2)(A), 8442(a)(1), (e);
5 C.F.R. § 843.303(a)(1). The appellant requested reconsideration, noting that
Federal law did not permit him and his husband to legally marry for the majority
of their relationship and that they had cohabited and lived together as a married
couple and considered each other life partners for the past 30 years. IAF, Tab 6
at 10-14. The appellant noted that when they completed their ceremonial
marriage in 2019, it was only so that the appellant could make medical care
decisions concerning his husband’s terminal illness. Id. The appellant also
provided OPM with documentary evidence of their lengthy relationship and joint
financial decision-making over their 30 years together. Id. at 14. On2
September 30, 2020, OPM issued a final decision denying the appellant’s
application on the same basis, concluding that the 4 month and 29-day2 duration
of the appellant’s marriage to the decedent prior to his death fell short of the
9-month minimum required by Federal statute. Id. at 8-9.
¶4The appellant timely filed the instant appeal challenging OPM’s denial of
his application for a survivor annuity and requested a hearing on his appeal. IAF,
Tab 1. After holding the appellant’s requested hearing, IAF, Tab 12, Hearing
Compact Disc (HCD), the administrative judge issued an initial decision
affirming OPM’s reconsideration decision denying the appellant’s application for
survivor annuity benefits, IAF, Tab 14, Initial Decision (ID) at 1, 5. In the initial
decision, the administrative judge acknowledged that the appellant had provided a
plethora of evidence that he and the decedent had cohabitated and considered
themselves married since approximately 1996 but concluded that these equitable
considerations could not outweigh the statutory 9-month marriage requirement
because the Federal government cannot be equitably estopped from denying
benefits not otherwise provided by law. ID at 3-4 (citing Office of Personnel
Management v. Richmond , 496 U.S. 414, 424 (1990)); see 5 U.S.C.
§§ 8441(2)(A), 8442(a)(1), (e); 5 C.F.R. § 843.303(a)(1). The administrative
judge also observed that the instant case was not one in which the appellant could
not meet the statutory 9-month marriage requirement because he and the decedent
could not be legally married for the requisite amount of time, noting that the
appellant’s home state, Maryland, had legalized same-sex marriage in 2013. ID
at 4. Finally, the administrative judge considered the appellant’s argument that
he and the decedent created a common-law marriage in Pennsylvania prior to
2005 during one of their several overnight trips to the state but determined that
the appellant failed to establish that they formed a valid common-law marriage in
Pennsylvania on this basis. ID at 4.
2 Elsewhere in the decision, OPM incorrectly identifies the length of the marriage as
7 months and 28 days. IAF, Tab 6 at 8.3
¶5The appellant has filed a petition for review challenging the administrative
judge’s finding that he failed to prove that he and the decedent entered into a
valid common-law marriage under Pennsylvania law prior to 2005. Petition for
Review (PFR) File, Tab 1. The agency has filed a response in opposition to the
petition for review, and the appellant has filed a reply. PFR File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6On review, the appellant does not appear to challenge the administrative
judge’s finding that, at the time of the decedent’s death, he and the decedent had
not been married for the 9 months required by statute for entitlement to a survivor
annuity, based on their August 26, 2019 ceremonial marriage. PFR File, Tabs 1,
5. Instead, the appellant argues that the administrative judge misapplied
Maryland law in determining that he failed to establish that he and the decedent
formed a valid common-law marriage in Pennsylvania prior to 2005. PFR File,
Tab 1 at 4-5. The appellant also rejects the administrative judge’s assertion that
he conceded that he could not establish the existence of a common -law marriage
under Pennsylvania law, arguing that the administrative judge mischaracterized
statements made by his representative during the hearing. PFR File, Tab 1 at 4,
Tab 5 at 5; ID at 4.
Applicable legal standard
¶7An individual seeking retirement benefits bears the burden of proving his
entitlement to those benefits by preponderant evidence. Cheeseman v. Office of
Personnel Management , 791 F.2d 138, 140-41 (Fed. Cir. 1986); 5 C.F.R.
§ 1201.56(b)(2)(ii). Under 5 U.S.C. § 8442(a)(1), if a decedent dies and is
survived by a widower, that widower is generally entitled to a survivor annuity.
Pursuant to 5 U.S.C. § 8441(2)(A), a “widower” is defined as the surviving
husband of an employee for at least 9 months immediately before his death.3 The
3 Pursuant to 5 U.S.C. § 8442(e), a widower is not required to prove that he satisfied the
9-month marriage requirement if the decedent’s death was “accidental.” See 5 C.F.R.
§ 843.303(d)(1) (explaining the circumstances in which a death would be deemed4
statute does not further define “marriage” or “husband.” 5 U.S.C. § 8441. When
the question of marriage is in doubt, OPM’s regulations refer to state law for
resolution. See Donati v. Office of Personnel Management , 106 M.S.P.R. 508,
¶ 6 (2007). To that end, OPM’s implementing regulations define “marriage” as
“a marriage recognized in law or equity under the whole law of the jurisdiction
with the most significant interest in the marital status of the employee . . . .”
5 C.F.R. § 843.102; see Charmack v. Office of Personnel Management ,
93 M.S.P.R. 667, ¶ 11 (2003). Additionally, the Board has held that “[a]
common-law marriage is given effect under [F]ederal law retirement statutes if it
is recognized under the relevant state law and meets the 9-month duration
requirement.” Moore-Meares v. Office of Personnel Management , 105 M.S.P.R.
613, ¶ 5 (2007). A party seeking to prove the elements of a common-law
marriage may do so through either direct or circumstantial evidence. Id., ¶ 6.
The appellant cannot establish that he meets the 9-month marriage requirement
based on his August 26, 2019 ceremonial marriage in Maryland under OPM’s
expanded interpretation of the relevant statutes and regulations.
¶8Before addressing the appellant’s arguments on review, we must first
consider what effect, if any, a recent notice issued by OPM has on the outcome of
this appeal. During the pendency of this appeal, OPM issued a notice regarding
awards of a survivor annuity or basic employee death benefits (BEDB) under the
Civil Service Retirement System (CSRS) and FERS for same-sex spouses of
deceased Federal employees or annuitants whose spouses died prior to meeting
the 9-month marriage requirement identified in the relevant statutes. Civil
Service Retirement System and Federal Employees’ Retirement System; Notice to
Same-Sex Spouses of Deceased Federal Employees or Annuitants Whose
Marriages Lasted Less Than Nine Months (OPM Notice), 86 Fed. Reg. 64234-02
accidental for the purpose of satisfaction of the 9-month marriage requirement). The
administrative judge did not make any findings on this point. Based on our review of
the record, we clarify that the exception set forth at 5 U.S.C. § 8442(e) is not applicable
here.5
(Nov. 17, 2021). In the notice, OPM determined that, in light of the U.S.
Supreme Court decisions in United States v. Windsor , 570 U.S. 744 (2013), and
Obergefell v. Hodges , 576 U.S. 644 (2015), it would deem same-sex surviving
spouse applicants of deceased Federal employees or annuitants to have satisfied
the 9-month marriage requirement under 5 U.S.C. §§ 8431(a) and 8441(1)-(2) for
the purposes of determining their entitlement to survivor annuity benefits or
BEDB in the following circumstances: (1) if the applicant was in a same-sex
marriage with the deceased employee or annuitant; and (2) but for the 9-month
marriage requirement, the applicant would be eligible or a survivor annuity
benefit/BEDB; and (3) the applicant was married to the deceased employee or
annuitant prior to the Supreme Court’s issuance of Windsor on June 26, 2013; or
(4) the applicant was married to the deceased employee or annuitant within 1 year
from the date of the Supreme Court’s issuance of Windsor on June 26, 2013; or
(5) the applicant was married to the deceased employee or annuitant within 1 year
after the Supreme Court’s issuance of Obergefell on June 26, 2015, when the
couple resided in a jurisdiction that prohibited same-sex marriages at any time
after Windsor. Id.
¶9Applying OPM’s revised interpretation of the statutes and regulations
governing the awarding of survivor annuity benefits, in this case the appellant has
established that (1) he was in a same-sex marriage with the decedent annuitant,
and (2) but for the 9-month marriage requirement, he would have been eligible for
a survivor annuity. OPM Notice, 86 Fed. Reg. 64234-02; IAF, Tab 6 at 27-29;
see 5 U.S.C. §§ 8441(2)(A), 8442(a)(1), (e); 5 C.F.R. § 843.303(a)(1).
Consequently, whether the appellant qualifies for a survivor annuity based on
OPM’s expanded interpretation of the 9-month rule turns on whether the appellant
and the decedent were married prior to one of three milestones: (3) the issuance
of Windsor on June 26, 2013; (4) within 1 year after the issuance of Windsor (that
is, on or before June 26, 2014); or (5) within 1 year after the issuance of
Obergefell (that is, on or before June 26, 2016), if they resided in a jurisdiction6
that prohibited same-sex marriage at any time after Windsor was decided on
June 26, 2013. OPM Notice, 86 Fed. Reg. at 64234-02, 64235 -02. Based on the
appellant’s August 26, 2019 ceremonial marriage, he does not meet the
requirements of (3) or (4). See id.; IAF, Tab 6 at 27-28. Additionally, because
same-sex marriage has been legally recognized in Maryland since January 1, 2013
—the relevant jurisdiction in this case—(5) is inapplicable here. See Civil
Marriage Protection Act, 2012 MD H.B. 438, § 2 (as recognized in Conover v.
Conover, 146 A.3d 433, 448 (Md. 2016)); see also MD Code, Family Law,
§§ 2-201, 2-202 (2013), amended by 2012 MD H.B. 438. Accordingly, we
conclude that OPM’s November 17, 2021 notice does not change the result here
with respect to the appellant’s August 26, 2019 ceremonial marriage and that the
appellant failed to establish that he meets the 9 -month marriage requirement
under OPM’s expanded interpretation of the relevant statutes and regulations.
The appellant and the decedent formed a common-law marriage in Pennsylvania
prior to 2005 that Maryland would recognize as valid, and the appellant is entitled
to a survivor annuity.
¶10The appellant argues on review that the administrative judge misapplied
Maryland law in concluding that he and the decedent failed to prove that they
formed a common-law marriage in Pennsylvania. PFR File, Tabs 1, 5.
Specifically, the appellant notes that he had provided a “plethora of evidence”
showing that he and the decedent had “lived together for over three decades and
were considered by their relatives/friends to be married” long before their August
2019 ceremonial marriage in Maryland. PFR File, Tab 1 at 4-5. He argues that
the administrative judge erred by failing to consider the significant evidence of
the existence of a common-law marriage prior to the ceremonial marriage and by
failing to credit the record and testimonial evidence showing that he and the
decedent completed several overnight trips to Pennsylvania prior to 2005 in
concluding that they failed to form a common-law marriage in that state. Id.;
PFR File, Tab 5 at 4-5. For the following reasons, we agree with the appellant7
that the administrative judge erred by concluding that the appellant failed to
prove that he and the decedent formed a valid common-law marriage under
Pennsylvania law that Maryland would recognize, and we reverse the initial
decision and order OPM to grant the decedent’s election to provide a survivor
annuity for the appellant.
¶11As the administrative judge correctly observed, Maryland “does not
recognize, and never has recognized, the institution of common law marriages.”
John Crane, Inc. v. Puller , 899 A.2d 879, 910 (Md. Ct. Spec. App. 2006).
Nevertheless, Maryland has “continuously held that a common-law marriage,
valid where contracted, is recognized in the state.” Id. at 912 (quoting Goldin v.
Goldin, 426 A.2d 410, 413 (Md. Ct. Spec. App. 1981)). As the administrative
judge also correctly noted, although Pennsylvania has abolished the doctrine of
common-law marriage, common-law marriages contracted on or before January 1,
2005, remain valid in the state.4 23 Pa. Stat. and Const. Stat. Ann. § 1103 (West
2005); Elk Mountain Ski Resort, Inc. v. Workers’ Compensation Appeal Board ,
114 A.3d 27, 32-33 (Pa. Commw. Ct. 2015). Under Pennsylvania law, the burden
of proving a common-law marriage is on the party alleging the marriage. PPL v.
Workers’ Compensation Appeal Board , 5 A.3d 839, 843 (Pa. Commw. Ct. 2010).
A common-law marriage can only be created by verba in praesenti (i.e., an
exchange of words in the present tense) spoken with the specific purpose of
creating the legal relationship of husband and wife. Elk Mountain Ski Resort ,
4 We note that although the appellant indicated in a pleading below and during the
hearing that he and the decedent had at least one overnight stay in Washington, D.C., he
does not appear to allege that they formed a common-law marriage in the District of
Columbia that Maryland would recognize, and the administrative judge also did not
consider the appellant’s arguments as alleging that he formed a common-law marriage
in the District of Columbia. IAF, Tab 9 at 90-94; HCD (testimony of appellant) (noting
that the appellant and the decedent cohabited overnight in the District of Columbia on
New Year’s Eve in 1989); ID at 4; see Gill v. Nostrand , 206 A.3d 869, 874 (App. D.C.
2019) (acknowledging that the District of Columbia has “long recognized common -law
marriages”). The appellant has not challenged this characterization of his argument on
review, and so we have limited our discussion here to the appellant’s claim that he and
the decedent formed a valid common -law marriage in Pennsylvania.8
114 A.3d at 32; see In Re: Estate of Carter , 159 A.3d 970, 979-82 (Pa. Super. Ct.
2017) (applying the same standard to evaluate the common-law marriage claim of
a same-sex couple). Although no magic words are required, proof of the actual
intention of the parties to form a marriage contract is indispensable to the
existence of a common-law marriage under Pennsylvania law. PPL, 5 A.3d
at 843. If a putative spouse “who is able to testify and fails to prove, by clear and
convincing evidence, the establishment of the marriage contract through the
exchange of verba in praesenti , then that party has not met its ‘heavy’ burden to
prove a common -law marriage.” Elk Mountain, 114 A.3d at 33.
¶12However, when one party is unable to testify regarding the exchange of
verba in praesenti , Pennsylvania law applies a rebuttable presumption in favor of
a common-law marriage based on proof of: (1) constant cohabitation; and (2) a
reputation of marriage “which is not partial or divided but is broad and general.”
In Re: Estate of Carter , 159 A.3d at 979 (quoting Staudenmayer v. Staudenmayer ,
714 A.2d 1016, 1020 -21 (Pa. Supr. Ct. 1998)). Such rebuttable presumption is
“one of necessity” to be applied only in cases of the party’s “inability to present
direct testimony regarding the exchange of verba in praesenti.” Elk Mountain Ski
Resort, 114 A.3d at 33 (quoting Staudenmayer, 714 A.2d at 1021). Nevertheless,
“[c]ohabitation and reputation are not a marriage; they are but circumstances
from which a marriage may be presumed, and such presumption may always be
rebutted and will wholly disappear in the face of proof that no marriage has
occurred.” PPL, 5 A.3d at 843. There is no basis to resort to the presumption if
the claimant is available to directly testify to the words allegedly exchanged with
the decedent. Id. Stated differently, “common law marriage will still be
recognized without use of verba de praesenti , where the intention of the parties[,]
as expressed by their words, is that they were married.” In Re: Estate of Carter ,
159 A.3d at 979 (quoting Cann v. Cann, 632 A.2d 322, 325 (Pa. Super. Ct.
1993)). 9
¶13Because the decedent in this case is unable to testify regarding the exchange
of verba in praesenti , we must evaluate whether the appellant can establish a
rebuttable presumption that a common-law marriage exists by proving “constant
cohabitation” between he and the decedent and “a broad and general reputation of
marriage.” PPL, 5 A.3d at 843. The administrative judge concluded that the
appellant could not establish the elements of “constant cohabitation” and “a broad
and general reputation of marriage” required to create a rebuttable presumption of
a valid common-law marriage in Pennsylvania based on their several overnight
stays in the state prior to 2005. ID at 4. Specifically, the administrative judge
concluded that the evidence was insufficient to establish a common-law marriage
in Pennsylvania because the appellant and the decedent had not provided any
evidence that they expressed a “present intent to marry” while in Pennsylvania or
that they had a general reputation as being married within Pennsylvania. ID at 4.
He also highlighted testimony from the appellant’s stepdaughter acknowledging
that neither the appellant nor the decedent ever used the term “husband” in
describing each other while in Pennsylvania.
¶14However, both conclusions miss the mark. As previously set forth, the
condition that a putative common-law spouse establish the exchange of verba in
praesenti, or “words in the present tense” evidencing an intent to be married, is
only required when the parties are able to testify as to the exchange of words. Elk
Mountain, 114 A.3d at 33. Here, by contrast, when one of the parties is unable to
testify, Pennsylvania applies a rebuttable presumption that a common-law
marriage exists when a party can show constant cohabitation and a broad and
general reputation of marriage, without requiring more. In Re: Estate of Carter ,
159 A.3d at 979. Consequently, the administrative judge misapplied the
applicable standard by finding that the appellant was required to prove that he and
the decedent “expressed a present intent to marry in Pennsylvania” to prove that
they established a common-law marriage in the state. ID at 4.10
¶15Regarding the first element, constant cohabitation, the evidence of the
appellant and the decedent’s long period of constant cohabitation is plentiful.
With his application for a survivor annuity, the appellant provided numerous
documents evidencing his enduring commitment to the decedent for over
30 years, including a purchase and sale agreement for the home where he and the
decedent resided, an executed home insurance policy identifying himself and the
decedent as “domestic partners,” Thrift Savings Program (TSP) Designation of
Beneficiary forms executed by the appellant5 and the decedent naming each other
as primary beneficiaries, advance health directives, durable power of attorney
agreements, last will and testament documents executed by the appellant and the
decedent for the benefit of each other, joint bills listing both the appellant and the
decedent, sworn affidavits from the couple’s friends and family members, and
numerous photographs of the appellant and the decedent together on trips to
several states during the period from 1989 to 2002.6 IAF, Tab 6 at 14, Tab 9
at 12-116; see In re Estate of McNeil , 56 Pa. D. & C. 4th 77, 81-82 (Com. Pl.
2001) (noting that test for assessing the evidence supporting a common-law
marriage claim “is a practical one requiring as much corroborative documentation
and evidence as possible,” and identifying additional evidence that could support
such a claim, including the following: “(1) the execution of deeds as husband and
wife; (2) the establishment of joint bank accounts; (3) the woman’s use of the
man’s surname; (4) the parties’ filing status on tax returns; (5) the wearing of
wedding rings; (6) taking out of life insurance naming each other as spouse;
5 The appellant is also a Federal employee with over 30 years of service. IAF, Tab 6
at 10.
6 The appellant also testified at the hearing that he and the decedent purchased a
vacation property in Pennsylvania in 2010 and spent significant time and money
renovating and staying at the property. HCD at 13:15-15:10 (testimony of the
appellant). Although not relevant to the issue of whether the appellant and the decedent
created a valid common -law marriage in Pennsylvania prior to 2005, this provides
additional evidence of their contacts to the state and of the long-lasting and continuous
nature of their cohabitation.11
(7) registering at a hotel as husband and wife; and (8) introducing one another as
husband and wife.”) (internal citations omitted).
¶16The record also contains evidence that the appellant and the decedent
cohabited in Pennsylvania as a couple prior to 2005, including photographs of
their overnight trips to Hershey, Pennsylvania, in July 1997 and October 2002,
and West Chester, Pennsylvania, in December 1997, and affidavits from the
appellant’s stepdaughter7, the decedent’s father, a neighbor and longtime friend,
and the couple’s realtor attesting to the fact that the appellant and the decedent
frequently traveled to Pennsylvania on overnight trips and cohabited together
during those trips, and that they understood the couple to be living together as a
married couple. IAF, Tab 9 at 83-85, 89, 103-04, 107-09, 111-16. Additionally,
the appellant’s stepdaughter testified at the hearing that she often accompanied
the appellant and the decedent during their frequent overnight trips to
Pennsylvania and that during those trips, the couple stayed in a room together and
viewed and understood the dynamics of their relationship as that of a married
couple. IAF, Tab 12, Hearing Compact Disc (HCD) at 4:45-5:50 (testimony of
appellant’s stepdaughter).
¶17Regarding the administrative judge’s observation that Maryland legalized
same-sex marriage in 2013 but the appellant and decedent chose not to marry
until 2019, we find that this fact does not undermine the appellant’s claim that he
and the decedent considered themselves as married for many years prior to their
2019 ceremonial marriage. ID at 4. As one Pennsylvania court observed in the
context of assessing a pre- Obergefell same-sex common-law marriage claim,
“context matters” in common-law marriage cases, and consideration must be
given to the fact that a same-sex couple alleging that they formed a common-law
marriage on or before January 1, 2005, would not have had the right to have that
union recognized as legal at that time. See In re Estate of Carter , 159 A.3d
7 As the appellant notes on review, the administrative judge incorrectly identified the
appellant’s stepdaughter (the decedent’s daughter) as the appellant’s niece. Petition for
Review (PFR) File, Tab 1 at 4; ID at 4.12
at 974-980. The appellant testified during the hearing that he and the decedent
consistently refereed to each other as “life partners” in describing the nature of
their relationship together to others, and that they only decided to ceremonially
marry in 2019 after the decedent received a terminal diagnosis that year and the
appellant needed to be able to make certain decisions regarding the decedent’s
medical care. HCD at 19:35-22:30 (testimony of the appellant). Despite this, the
appellant reaffirmed that nothing changed in his and the decedent’s minds about
the nature of their relationship with the 2019 ceremonial marriage, and that they
had considered each other to be in a committed relationship akin to a marriage for
decades prior to their ceremonial marriage—during the vast majority of which
they were not legally permitted to marry in their state of residence. HCD
at 23:00-23:50 (testimony of the appellant); IAF, Tab 6 at 11.
¶18Additionally, as the appellant correctly notes on review, Maryland has
viewed its obligation to recognize common-law marriages created in other states
broadly, observing that Maryland “will, when the occasion demands, bend over
backward to find a way around the ceremonial breach” to find that a common-law
marriage contracted in another state was valid. John Crane, Inc. , 899 A.2d
at 913. Indeed, Maryland courts have recognized a Pennsylvania common-law
marriage as valid in instances when the couple’s connections to Pennsylvania
were even more remote than the appellant and the decedent’s were here. See
Blaw-Knox Construction Equipment Company v. Morris , 596 A.2d 679, 685-86
(Md. Ct. Spec. App. 1991) (finding that the complainant had presented sufficient
evidence of a valid common-law marriage under Pennsylvania law to create a jury
question on the issue where she established the following: she and the decedent
took a single trip to the state in order to attend a funeral; the two spent two nights
alone together in a motel in the state; the complainant met a number of the
decedent’s family members who “greeted and treated [the complainant]” as his
wife during the trip; and by the time they took the trip, the complainant and the13
decedent had been living together and holding themselves out as husband and
wife for more than 30 years).
¶19There is also some indication that Maryland courts may view the
“reputation for marriage” element for establishing a Pennsylvania common-law
marriage permissively and that the reputation for marriage need not be
constrained to a Pennsylvania community. See John Crane, Inc. , 899 A.2d at 914
(finding sufficient evidence of a common-law marriage based on the facts of that
case for a jury question on the issue, acknowledging that based on the court’s
prior decision in Blaw-Knox, “[e]ven the element of ‘reputation in Pennsylvania’
may not be an irreducable [sic] sine qua non,” noting that the Blaw-Knox court
“quoted with approval” a New York state court opinion finding that cohabitation
and reputation in the state of New York was sufficient to establish a common-law
marriage under Pennsylvania law) (quoting Blaw-Knox Construction Equipment
Company, 596 A.2d at 687).
¶20Finally, other states to have considered this issue have similarly interpreted
Pennsylvania’s recognition of common-law marriages broadly. See Renshaw v.
Heckler, 787 F.2d 50, 52-54 (2d Cir. 1986) (finding sufficient evidence of
cohabitation and a reputation for marriage to establish a common-law marriage in
Pennsylvania based on the New York couple’s eight out-of-state trips to Virginia
and North Carolina over the course of 9 years that included overnight stays in
Pennsylvania, when the couple cohabitated during their stays in Pennsylvania and
their interactions with the local Pennsylvania community were limited to making
dinner reservations as a married couple and a coincidental meeting with a family
member); McCullon v. McCullon , 410 N.Y.S.2d 226 (N.Y. Sup. Ct.1978) (finding
a valid common-law marriage between two New York residents who vacationed
in Pennsylvania for two to four weeks at a time over nearly 30 years); Skinner v.
Skinner, 150 N.Y.S.2d 739 (N.Y. Sup. Ct. 1956) (finding that two New York
residents formed a valid common -law marriage under Pennsylvania law on the
basis of a three week visit to the state); cf. Charmack, 93 M.S.P.R. 667, ¶¶ 8, 1614
(finding insufficient evidence of a broad and general reputation for marriage in
Pennsylvania where the evidence supporting the common-law marriage claim was
limited to testimony from the appellant’s son stating that the appellant had
introduced the decedent to him as “his ‘girl’” during an overnight stay in
Pennsylvania in 1992, but that the son did not know whether the appellant and the
decedent were regarded as husband and wife in the community or whether they
came in contact with anyone else during their stay in Pennsylvania).
¶21Based on the foregoing, we conclude that the administrative judge erred by
finding that the appellant failed to establish that he and the decedent had formed a
common-law marriage in Pennsylvania prior to 2005 based on their repeated and
frequent overnight trips to the state, and that Maryland would recognize that
common-law marriage as valid. The record is replete with evidence that the
appellant and the decedent were in a lengthy and committed relationship and that
they publicly and repeatedly reaffirmed their commitment to that relationship on
numerous occasions in Pennsylvania prior to 2005, and they therefore have
established that they formed a valid common-law marriage under applicable
Pennsylvania law. The fact that the law precluded them from marrying and
enjoying the shared title of “husband” for the vast majority of their lengthy and
committed relationship is ultimately immaterial to the question of whether they
viewed their relationship as one that was on equal footing to that of a married
couple.
ORDER
¶22Accordingly, we ORDER OPM to award the appellant survivor annuity
benefits. OPM must complete this action within 20 days of the date of this
decision.
¶23We also ORDER OPM to inform the appellant of all actions taken to
comply with the Board’s order and of the date on which it believes it has fully
complied. See 5 C.F.R. § 1201.181(b). We ORDER the appellant to provide all15
necessary information that the agency requests in furtherance of compliance. The
appellant should, if not notified, inquire about the agency’s progress.
¶24Within 30 days of the agency’s notification of compliance, the appellant
may file a petition for enforcement with the regional office to resolve any
disputed compliance issue or issues. The petition should contain specific reasons
why the appellant believes there is insufficient compliance and should include the
dates and results of any communications with the agency about compliance. See
5 C.F.R. § 1201.182(a).
¶25This 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)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
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 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).
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.16
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 17
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the18
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.9 The court of appeals must receive your
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 of19
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 20
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.21 | Cincotta_Douglas_J_PH-0841-21-0025-I-1_Final_Order.pdf | 2024-11-20 | DOUGLAS JAMES CINCOTTA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0841-21-0025-I-1, November 20, 2024 | PH-0841-21-0025-I-1 | NP |
346 | https://www.mspb.gov/decisions/nonprecedential/Paulson_Jeff_P_SF-0845-20-0645-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFF P. PAULSON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0845-20-0645-I-1
DATE: November 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeff P. Paulson , Colville, Washington, pro se.
Karen Silveira and Tanisha Elliott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision by the Office of Personnel Management
(OPM) finding that the appellant received an annuity overpayment and was not
entitled to a waiver of the overpayment. For the reasons discussed below, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
GRANT the appellant’s petition for review, REVERSE the initial decision, and
FIND that the appellant sufficiently demonstrated his entitlement to a waiver of
the overpayment.
BACKGROUND
The appellant was employed by the National Park Service with the
Department of the Interior. Initial Appeal File (IAF), Tab 9 at 61-63. In June
2008, OPM approved his application for disability retirement under the Federal
Employees’ Retirement System (FERS). Id. at 69. In lieu of retirement benefits
from OPM, the appellant received benefits through the Office of Workers’
Compensation Programs (OWCP) until May 30, 2016. Id. at 51-54. He then
switched from OWCP benefits to receiving a disability retirement annuity through
OPM. However, a processing error delayed payment until February 2017, when
the appellant was placed in an interim status while OPM calculated his exact
annuity. Id. at 38, 55-57. His annuity fluctuated several times while OPM
recalculated his entitlement. Id. at 38-39.
In July 2019, OPM informed the appellant that errors in its calculation of
his monthly annuity resulted in an overpayment. Id. at 24. The overpayment
involved the incorrect over-calculation of the appellant’s interim annuity in
addition to OPM’s failure to reduce his annuity for his elected survivor benefits
and failure to make insurance deductions. Id. at 24-32. According to OPM, the
total overpayment amount was $8,694.19. Id. at 31-32. The appellant sought
reconsideration of the amount, waiver of the overpayment, and lower installments
of recovery. Id. at 17-20. On July 9, 2020, OPM issued a reconsideration
decision affirming its initial decision. Id. at 7-10. Although it found that the
appellant was not at fault, OPM nonetheless denied his request for a waiver of the
overpayment because he had not shown that recovery would be against equity and
good conscience. Id. at 9. However, it altered the collection schedule to
115 months of $75.00 installments and a final installment of $69.19. Id. at 10. 2
The appellant filed an appeal of this reconsideration decision with the
Board. IAF, Tab 1. The record contains multiple Financial Resource
Questionnaires (FRQs) submitted by the appellant, which set forth his monthly
income and expenses in support of a waiver of the overpayment as of February
2017, April 2020, and December 2020. IAF, Tab 9 at 11-16, Tab 26 at 4. OPM
additionally submitted its assessment of the appellant’s monthly income and
expenses. IAF, Tab 24 at 6. In its closing statement, OPM adjusted the total
overpayment amount to $5,424.87, based largely on the appellant’s claim that he
did not receive Federal health insurance during the relevant period and thus
OPM’s failure to deduct insurance payments was not erroneous. Id. at 4. OPM
set forth a new collection plan of 72 monthly installments of $75.00 and a final
installment of $24.87. Id.
The appellant did not request a hearing, and thus, the administrative judge
issued an initial decision on the written record. IAF, Tab 1 at 1, Tab 27, Initial
Decision (ID) at 1. The administrative judge found that OPM sufficiently proved
the existence and amount of the adjusted overpayment of $5,424.87. ID at 5-7.
She then found that the appellant failed to establish his entitlement to a waiver of
the overpayment. ID at 7-13. In so holding, the administrative judge found that
the appellant was not at fault for the overpayment but nonetheless failed to
establish entitlement to a waiver due to unconscionability or financial hardship.
Id.
The appellant has filed a petition for review, largely arguing that the
administrative judge erred in calculating his monthly expenses in the financial
hardship analysis. Petition for Review (PFR) File, Tab 1 at 4-5. The agency has
responded to the petition for review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge found that OPM sufficiently proved the existence
and amount of the overpayment. ID at 5-7. The parties do not challenge this3
finding on review, and we see no reason to disturb it. The administrative judge
additionally found that the appellant was not entitled to a waiver of the
overpayment based on financial hardship because, as calculated by the
administrative judge, the appellant’s monthly income exceeded his monthly
expenses by $236.20. ID at 13. In so holding, the administrative judge lowered
the appellant’s monthly calculated expenses for medical/dental and transportation
by $100.00 and $123.25, respectively. ID at 12-13. The appellant challenges the
reduction of these expenses in the financial hardship analysis and argues that he
is entitled to a waiver of the overpayment. PFR File, Tab 1 at 4-5. We agree
with the appellant.
The appellant bears the burden of proving by substantial evidence that he is
eligible for a waiver of the overpayment.2 5 C.F.R. §§ 845.301, 845.307(b).
Recovery of an overpayment may be waived when the annuitant is without fault
and recovery would be against equity and good conscience.3 5 U.S.C. § 8470(b);
Vojas v. Office of Personnel Management , 115 M.S.P.R. 502, ¶ 18 (2011).
Recovery is against equity and good conscience when, as relevant here, it would
cause financial hardship. See Vojas, 115 M.S.P.R. 502, ¶ 22; 5 C.F.R.
§ 845.303(a). Financial hardship is deemed to exist when the annuitant from
whom collection is sought needs substantially all of his current income and liquid
assets to meet current ordinary and necessary living expenses and liabilities.4
5 C.F.R. § 845.304.
For purposes of determining whether an annuitant is entitled to a waiver of
recovery of the overpayment on grounds of financial hardship, the annuitant’s
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 reasonable persons might disagree. 5 C.F.R. § 1201.4(p). This is a
lower standard of proof than preponderance of the evidence. Id.
3 The administrative judge found, and the parties do not dispute, that the appellant was
not at fault in the creation of the overpayment. ID at 7; IAF, Tab 9 at 9.
4 The administrative judge found, and the parties do not dispute, that no liquid assets
should be considered as available for recovery of the overpayment here. ID at 10 n.3.4
monthly expenses are calculated by adding the annuitant’s ordinary and necessary
monthly expenses and $50.00 for emergency expenses, as allowed by OPM.
Spinella v. Office of Personnel Management , 109 M.S.P.R. 185, ¶ 11 (2008). The
total monthly expense figure is then subtracted from total monthly income to
ascertain the annuitant’s income/expense margin. Id. Once an annuitant’s
income/expense margin is determined, the Board will consider the annuitant’s
total financial condition and determine whether the annuitant needs substantially
all his current income and liquid assets to meet current and ordinary living
expenses and liabilities. Id. In calculating monthly expenses, the Board will give
the appellant the benefit of the doubt unless the expense clearly constitutes an
extravagance or a luxury. Malone v. Office of Personnel Management ,
113 M.S.P.R. 104, ¶ 7 (2010). In the absence of a specific challenge by OPM, an
appellant seeking a waiver of an annuity overpayment should not be required to
substantiate his expenses and income unless the information appears incomplete
or unreasonable on its face. Spinella, 109 M.S.P.R. 185, ¶ 11.
The administrative judge found the appellant’s monthly income for
purposes of the financial hardship calculation to be $3,155.00. ID at 11. The
parties do not challenge this calculation, and we see no reason to disturb it. The
administrative judge then found that the appellant’s ordinary and necessary
monthly expenses totaled $2,918.80, resulting in a monthly surplus of $236.20.
ID at 13. The administrative judge largely relied on the appellant’s most recent
December 2020 FRQ in determining his total expenses. ID at 12-13; IAF, Tab 26
at 4.
In calculating the allowable expenses, the administrative judge reduced the
appellant’s claimed expense of $223.25 per month for transportation expenses,
which includes gas, oil, and maintenance, finding that the appellant did not
provide a basis for the amount and surmising that this was not an ordinary and
necessary living expense because neither the appellant nor his spouse were
currently employed. ID at 12. The administrative judge reduced the expense to5
$100.00 per month without further explanation. Id. The record reflects that OPM
acquiesced to the appellant’s claim of $225.00 in monthly transportation
expenses.5 IAF, Tab 24 at 6. Thus, the appellant was not on notice of the need to
further substantiate this expense, which on its face is not unreasonable. See
Spinella, 109 M.S.P.R. 185, ¶ 11 (stating that, in the absence of a specific
challenge from OPM, an appellant should not be required to substantiate expenses
unless the information submitted appears incomplete or unreasonable on its face).
Under the circumstances, we find that the fact that the appellant and his spouse
are not employed is not sufficient justification for reducing this expense to
$100.00. Further, after the initial decision put this expense at issue, the appellant
provided more detail of his transportation expenses with his petition for review.
PFR File, Tab 1 at 4-5. For example, he explained that he and his spouse both
provide care to their elderly parents, which entails numerous visits per month,
including 40-mile round trip visits to care for his father and several trips to
Spokane, Washington, which is roughly 75 miles away one way. Id. The
appellant further explained that he lives 15 miles outside of town, where he
travels to several times monthly for food and supplies. Id. In addition to gas
expenses, the appellant explained that he and his spouse both drive vehicles over
15 years old, which require various maintenance and upkeep throughout the year.
Id. In light of the additional details provided on review and given that the Board
generally gives the appellant the benefit of the doubt, we find that the appellant’s
claimed expense of $223.25 is not unreasonable. OPM’s apparent concurrence
further bolsters this conclusion.
The administrative judge also rejected the appellant’s claimed expense of
$200.00 a month for household medical and dental expenses, and she lowered this
amount to $100.00. ID at 12. The record reflects that the appellant’s estimates of
5 The appellant’s FRQ from April 2020 listed his transportation expenses as $225.00,
but his subsequent financial statement submitted to the Board claimed $223.25 (i.e.,
$350.00 less $126.75 in automobile insurance premiums). IAF, Tab 24 at 6, Tab 26
at 4. We find for purposes of this analysis that the marginal difference is immaterial. 6
this expense have varied from $100.00 to $275.00 monthly in his FRQs submitted
at different times in the processing of this matter. IAF, Tab 24 at 6, Tab 26 at 4.
In his last FRQ, the appellant estimated $200.00 per month for these expenses,
naming prescription and doctor co-payments and recurring installments on a
medical bill. IAF, Tab 26 at 4. This amount does not appear unreasonable on its
face, and we find that the appellant’s overall claimed expenses do not reflect
extravagant or luxurious expenditures. Id.; see Malone, 113 M.S.P.R. 104, ¶ 7.
On review, the appellant has provided updated information and additional detail,
which we find appropriate to consider. PFR File, Tab 1 at 4-5; see 5 C.F.R.
§ 845.304(a)(1) (stating that a consideration in a financial hardship determination
is “[t]he individual’s financial ability to pay at the time collection is scheduled to
be made”). For example, the appellant avers that both he and his spouse now
have separate $450.00 yearly deductibles for medical expenses, $70.00 in
monthly prescription co-payment obligations, and $15 co-payment obligations for
doctors’ visits, which are often monthly. He further describes costs associated
with dental and vision care. Id. Although OPM has filed a general opposition to
the petition for review, it has not made a specific challenge to these claimed
expenses, which appear reasonable on their face. PFR File, Tab 4. Accordingly,
we conclude that $200.00 per month is an ordinary and necessary expense.
Considering the remaining expenses as approved by the administrative
judge, with the two alterations set forth above, the appellant’s monthly expenses
are $3,142.05. Factoring in his $3,155 monthly income, the appellant’s monthly
income/expense margin is $12.95. The Board has held that an appellant needs
substantially all of his current income to meet current ordinary and necessary
living expenses and liabilities in similar situations. See Niemi v. Office of
Personnel Management , 69 M.S.P.R. 549, 553 (1996) (finding that an appellant
established financial hardship when she demonstrated that she had only $7.94 per
month after expenses); see also Wheelahan v. Office of Personnel Management ,
28 M.S.P.R. 427, 429 (1985) (finding that an appellant needed nearly all of his7
current income to meet expenses, thus entitling him to a waiver of the
overpayment, when his monthly surplus was $106.15). Accordingly, we find that
the appellant needs substantially all of his current income to meet expenses, and
thus he is entitled to a waiver of the overpayment based on financial hardship.
ORDER
We ORDER OPM to waive collection of the overpayment of the appellant’s
disability retirement annuity in the amount of $5,424.87. OPM must complete
this action no later than 20 days after the date of this decision.
We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it took to
carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS6
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,
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
the Merit Systems Protection Board does not provide legal advice on which
option is most appropriate for your situation and the rights described below do
not represent a statement of how courts will rule regarding which cases fall within
their jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at9
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,10
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.7 The court of appeals must receive your
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,11
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Paulson_Jeff_P_SF-0845-20-0645-I-1_Final_Order.pdf | 2024-11-19 | JEFF P. PAULSON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0845-20-0645-I-1, November 19, 2024 | SF-0845-20-0645-I-1 | NP |
347 | https://www.mspb.gov/decisions/nonprecedential/Bonfilio_RonSF-0831-21-0355-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONALD BONFILIO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0831-21-0355-I-1
DATE: November 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronald Bonfilio , Humble, Texas, pro se.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed an Office of Personnel Management (OPM) final decision denying the
appellant retirement credit for his service as a reemployed annuitant with the
Department of State. On petition for review, the appellant argues, among other
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
things, that the administrative judge erred in not finding that he entered a verbal
contract with the Federal Government granting him retirement credit for his
reemployed annuitant service, that the Department of State failed to provide him
required retirement guidance, and that he should be allowed to make a deposit for
retirement credit for his reemployed annuitant service. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to VACATE the administrative judge’s findings related to
the appellant’s reemployed annuitant service with the Department of the Army,
we AFFIRM the initial decision.
The appellant did not raise his service with the Department of the Army as
an issue before OPM, and OPM’s decision does not address that service.
Therefore, the Board lacks jurisdiction over that subject. Reid v. Office of
Personnel Management , 120 M.S.P.R. 83, ¶ 6 (2013) (finding that, absent
circumstances not present here, the absence of an OPM final decision precludes
Board jurisdiction over a retirement matter); see 5 U.S.C. § 8347(d)(1); 5 C.F.R.
§ 831.110. Thus, we vacate the portion of the initial decision addressing the2
appellant’s service with the Department of the Army.2 However, the exclusion of
this issue does not affect the remainder of the administrative judge’s analysis and
does not alter the outcome of this appeal.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 To the extent that the appellant seeks service credit for his reemployed annuitant
service with the Department of the Army, nothing in this decision prevents the appellant
from raising that matter with OPM consistent with OPM’s regulations. If the appellant
disagrees with OPM’s final decision regarding that service, he may file an appeal with
the Board, consistent with the Board’s regulations. 5 U.S.C. § 8347(d)(1), 5 C.F.R.
§ 831.110.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Bonfilio_RonSF-0831-21-0355-I-1_Final_Order.pdf | 2024-11-19 | RONALD BONFILIO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-21-0355-I-1, November 19, 2024 | SF-0831-21-0355-I-1 | NP |
348 | https://www.mspb.gov/decisions/nonprecedential/Vose_CarltonPH-0714-20-0252-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARLTON VOSE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0714-20-0252-I-1
DATE: November 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marc J. Levy , Esquire, Sudbury, Massachusetts, for the appellant.
Michael Potter , Providence, Rhode Island, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction based on the waiver provision of a
last chance agreement (LCA). Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain3
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 4
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Vose_CarltonPH-0714-20-0252-I-1_Final_Order.pdf | 2024-11-19 | CARLTON VOSE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0714-20-0252-I-1, November 19, 2024 | PH-0714-20-0252-I-1 | NP |
349 | https://www.mspb.gov/decisions/nonprecedential/Mowery_Steven_D_DC-315H-21-0510-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN D. MOWERY,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-315H-21-0510-I-1
DATE: November 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven D. Mowery , Virginia Beach, Virginia, pro se.
Christopher Dopke , Suffolk, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
We have examined the documents the appellant submitted on review, but
we find that they do not warrant a different result. See Schoenig v. Department of
Justice, 120 M.S.P.R. 318, ¶ 7 (2013) (holding that the Board may consider
evidence submitted for the first time on petition for review if it implicates the
Board’s jurisdiction and warrants an outcome different from that in the initial
decision). The appellant’s prior service with the Department of Homeland
Security was followed by a break of service of more than 1 workday, and
therefore it does not count toward the current continuous service requirement of
5 U.S.C. § 7511(a)(1)(A). See Wilder v. Merit Systems Protection Board ,
675 F.3d 1319, 1322-23 (Fed. Cir. 2012) (holding that the term “current
continuous service” means a period of employment or service immediately
preceding an adverse action without a break in Federal civilian employment of a
workday). The appellant’s prior military service also does not count toward the
current continuous service requirement. See id. Furthermore, in the absence of
an appealable action, the Board lacks jurisdiction to consider the appellant’s
possible claim of disability discrimination. See Pridgen v. Office of Management
and Budget, 117 M.S.P.R. 665, ¶ 7 (2012). 2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Mowery_Steven_D_DC-315H-21-0510-I-1_Final_Order.pdf | 2024-11-19 | STEVEN D. MOWERY v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-315H-21-0510-I-1, November 19, 2024 | DC-315H-21-0510-I-1 | NP |
350 | https://www.mspb.gov/decisions/nonprecedential/Mechanik_Frederick_S_DE-0752-20-0177-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FREDERICK S. MECHANIK,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-0752-20-0177-I-1
DATE: November 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Southworth , Esquire, and Ianna Richardson , Esquire, Atlanta,
Georgia, for the appellant.
Stephen Coutant , Honolulu, Hawaii, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s removal. On petition for review, he challenges the
administrative judge’s findings on the merits of the charge and on certain of the
appellant’s affirmative defenses. Generally, we grant petitions such as this one
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the appellant
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify the legal standards applicable to the appellant’s claims of
reprisal for protected equal employment opportunity (EEO) activity and
discrimination, and to address the appellant’s claim that he was perceived as a
whistleblower, we AFFIRM the initial decision.
BACKGROUND
The agency removed the appellant from his Podiatrist position based on a
charge of delay in patient care. Initial Appeal File (IAF), Tab 8 at 10-14. In
addition to disputing the charge, the appellant alleged that the agency’s action
was due to religious discrimination, as well as retaliation for his prior EEO
activity and protected whistleblowing disclosures. IAF, Tab 34. Following the
requested hearing, the administrative judge issued an initial decision in which he
sustained the charge. IAF, Tab 43, Initial Decision (ID) at 10-14. He also found
that the appellant did not prove any of his affirmative defenses. ID at 16-18, 21-
28. Finally, the administrative judge found that the agency established a nexus
between the sustained charge and the efficiency of the service, ID at 28, and that2
removal was a reasonable penalty, ID at 28-32. Accordingly, he affirmed the
agency action. ID at 1, 32.
The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 3.
ANALYSIS
In his petition for review, the appellant disagrees with the administrative
judge’s findings on the merits of the charge but does not explain why those
findings are incorrect or otherwise establish error. PFR File, Tab 1 at 5-7. The
Board has held that when, as here, the administrative judge thoroughly addressed
the issues, the appellant’s mere disagreement with the initial decision does not
provide a basis for granting the petition for review.2 Yang v. U.S. Postal Service ,
115 M.S.P.R. 112, ¶ 12 (2010); see also Broughton v. Department of Health &
Human Services , 33 M.S.P.R. 357, 359 (1987) (finding no reason to disturb the
administrative judge’s conclusions when the initial decision reflects that the
administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility).
The appellant did not prove his claim of retaliation for EEO activity.
The administrative judge considered the appellant’s claim that he was
retaliated against because he sought EEO counseling. During counseling, the
appellant claimed that his supervisor subjected him to a hostile work
environment3 based on his religion and sex. IAF, Tab 1 at 14-15. The
administrative judge found that the appellant participated in protected activity of
2 Among other things, the appellant argues on review that the administrative judge
misconstrued the charge by not requiring the agency to prove actual harm to the patient.
PFR File, Tab 1 at 5-6. Nothing in the charge required the agency to prove actual harm
to the patient. IAF, Tab 8 at 10-14. We also discern no error in the administrative
judge’s decision to credit the testimony of the Chief of Surgery, and nothing required
the administrative judge to qualify her as an expert witness. ID at 10. Finally, we
discern no error in the administrative judge’s decision to credit the appellant’s initial
written statements admitting that he should have evaluated the patient over the
appellant’s hearing testimony in which he backed away from those prior statements. ID
at 13-14. 3
which the proposing and deciding officials were aware but that the appellant
failed to show that his EEO activity was a factor in the agency’s decision to
remove him. ID at 17-18. In this regard, the administrative judge found that the
appellant’s supervisor was neither the proposing nor the deciding official, that
there was no evidence of any animus on the part of either of those officials, that
both denied that the appellant’s EEO activity had any bearing on their respective
decisions, and that there was also no evidence of any comparator employees. ID
at 17-18.
The appellant contends on review that the proposing official set him up by
not fairly investigating the situation; that the deciding official sustained the
charge, even though he knew of the protected activity; and that there was “no
actual or proximate causation” from his actions that led to a delay in the patient’s
care. PFR File, Tab 1 at 7. These claims fall well short of establishing that
retaliation was a motivating factor in the appellant’s removal.4 See Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶¶ 30-31. On review, the
appellant argues that the administrative judge erred by failing to apply Babb v.
Wilkie, 589 U.S. 399 (2020), which, he claims, “would require reversal if there
was any tainting.” PFR File, Tab 1 at 7. On the contrary, the administrative
judge’s analysis of this claim comports with the Supreme Court’s decision in
Babb and the Board’s decision in Pridgen. ID at 14-18. Because the
administrative judge found, and we agree, that the appellant failed to prove that
retaliation for his EEO activity played any part in the agency’s decision, he
3 According to the appellant, his supervisor changed the on-call protocol for weekends
and scheduled the appellant to work more holidays, required him to write an excessive
amount of memoranda, denied him an assistant, charged him as absent without leave,
issued him a reprimand, and ordered him to remove a cartoon he had taped to the back
of his door. IAF, Tab 1 at 14-15.
4 The administrative judge relied on Savage v. Department of the Army , 122 M.S.P.R.
612, ¶ 41 (2015), in addressing this claim. ID at 14-18. After the issuance of the initial
decision, the Board clarified the applicable standards in Pridgen v. Office of
Management and Budget , 2022 MSPB 31.4
necessarily failed to meet the more stringent “but-for” standard.5 Desjardin v.
U.S. Postal Service , 2023 MSPB 6, ¶ 31; Haas v. Department of Homeland
Security, 2022 MSPB 36, ¶ 32; ID at 17-18.
The appellant did not establish his claim of whistleblower retaliation.
The administrative judge considered the appellant’s claim that he made
three protected disclosures: (1) sending an email to the proposing official stating
that, on two specific occasions, he was denied a medical assistant and/or tech
support; (2) complaining to several non-commissioned officers regarding certain
enlisted personnel and their poor performance as medical technicians; and
(3) disclosing to “Dr. R.” that the appellant had not been placed on an alternate
work schedule, despite Dr. R. and the appellant’s supervisor having approved him
for it. ID at 21. As to the first alleged disclosure, the administrative judge found
that it was not protected and that, at best, it disclosed only de minimis
wrongdoing. ID at 21-23. As to the second alleged disclosure, the administrative
judge found that, because the complaints were too vague, they were not protected,
but that, even if they were, the appellant did not show that they were a
contributing factor in the agency’s decision to remove him. ID at 23-27.
Regarding the third alleged disclosure, after noting that the appellant had not
testified as to this matter, the administrative judge found that the allegation was
too vague and a reasonable person in the appellant’s position would not have
believed that it was protected. ID at 25.
Regarding the first alleged protected disclosure, the appellant argues on
review that he reasonably believed that arbitrarily denying him a medical
5 The appellant does not challenge on review the administrative judge’s finding that the
appellant failed to prove his allegation of discrimination based on religion. PFR File,
Tab 1. Based on our review, we discern no basis upon which to disturb the
administrative judge’s well-supported finding that the appellant did not establish that
his religion was a motivating factor in his removal. Pridgen, 2022 MSPB 31, ¶¶ 20-21;
ID at 16. As with the appellant’s claim of retaliation for protected EEO activity, the
administrative judge’s analysis of the appellant’s claim of religious discrimination
comports with Babb and Pridgen.5
assistant reflected an abuse of authority by his supervisor, pointing out that there
is no de minimis requirement for claims of an abuse of authority, PFR File, Tab 1
at 8, and that he also reasonably believed that the disclosure evidenced a
substantial and specific danger to public health and safety, id. at 9. A reasonable
belief exists if a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the appellant could reasonably conclude
that the action of the Government evidences a category of wrongdoing, here, an
abuse of authority or a substantial or a specific danger to public health or safety.
Lachance v. White , 174 F.3d 1378, 1381 (Fed. Cir. 1999).
An abuse of authority is an arbitrary and capricious exercise of power by a
Federal official or employee that adversely affects the rights of any person or
results in personal gain or advantage to himself or preferred other persons and, in
fact, there is no de minimis standard. Herman v. Department of Justice ,
115 M.S.P.R. 386, ¶ 11 (2011). Notwithstanding this definition, we agree with
the administrative judge that the appellant did not show that he reasonably
believed, or that a disinterested observer would believe, that his supervisor
abused his authority by denying the appellant an assistant on two instances.
Rather, the appellant’s email reflected his opinion that providing him an assistant
would have improved the quality of patient care and indicated that he had
declined an opportunity to speak with a supervisor to obtain more information
about the reasons for the decision. IAF, Tab 32 at 40-41; see e.g., Webb v.
Department of the Interior , 122 M.S.P.R. 248, ¶ 10 n.3 (2015) (finding that the
appellant’s disclosure expressing his view concerning the best way to restructure
an agency department was not protected as evidencing an abuse of authority
because it constituted his disagreement with a debatable management decision).
Regarding the appellant’s claim that this disclosure also reflected a danger
to public health or safety, the following three considerations are relevant in
determining whether a disclosure evidences a substantial and specific danger to
public health or safety: (1) the likelihood of harm resulting from the danger;6
(2) when the alleged harm may occur; and (3) the nature of the harm, i.e., the
potential consequences. Chambers v. Department of the Interior , 602 F.3d 1370,
1376 (Fed. Cir. 2010). Despite t he appellant’s stated belief that denying him a
medical assistant on two occasions “puts all parties including the patient, myself,
the entire clinic and the Hospital in jeopardy,” IAF, Tab 32 at 40, he has not
shown by his unsupported claim that a disinterested observer would perceive that
denying him an assistant on two occasions would result in a substantial and
specific danger to public health or safety.6
As to the second alleged protected disclosure, the appellant argues on
review that he testified that he also shared with the proposing official his
concerns regarding the poor performance of certain enlisted personnel, and that
the proposing official influenced the deciding official, allowing for an “inference
of causation.” PFR File, Tab 1 at 9. As noted, the administrative judge found
that, even if the appellant’s disclosure was a claimed violation of the Health
Insurance Portability and Accountability Act ( HIPAA) by the enlisted personnel
due to their failure to close computer screens after entering information, the
appellant did not establish that the disclosure was a contributing factor in the
agency’s decision to remove the appellant. ID at 26-27.
As the administrative judge correctly found, an employee can establish the
contributing factor part of his burden by showing that the official who took the
action had knowledge of the disclosure and that the personnel action occurred
6 Regarding this alleged protected disclosure, the appellant states on review that “[a]t a
minimum, [he] was perceived as a whistleblower in this area.” PFR File, Tab 1 at 9.
He raised the issue below, but with no further explanation, IAF, Tab 32 at 5, and the
administrative judge did not address it in the initial decision. To show that the
appellant was perceived as a whistleblower, he must show that an agency official
involved in his removal believed that he made or intended to make a disclosure that
evidenced the type of wrongdoing listed in 5 U.S.C. § 2302(b)(8). King v. Department
of the Army, 116 M.S.P.R. 689, ¶ 8 (2011). To the extent the administrative judge erred
in this regard, the appellant has not shown by this bare claim that his substantive rights
were thereby prejudiced. Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282
(1984) (finding that an adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision).7
within a period of time such that a reasonable person could conclude that the
disclosure was a contributing factor in the personnel action (the
knowledge/timing test). Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 26 (2011); ID at 25-26. Here, the administrative judge found
that there was no evidence that the deciding official had actual knowledge of this
disclosure. The deciding official testified that, although the appellant did share
with her certain problems he was encountering with the support staff, she did not
recall him raising any concerns regarding the actions of enlisted personnel.
Hearing Recording (HR) (testimony of the deciding official); ID at 27. Given this
testimony, and the fact that the appellant did not show or even allege that he
brought this information directly to the deciding official’s attention, HR
(testimony of the appellant), we find no error in the administrative judge’s
conclusion that the appellant failed to show that the deciding official had actual
knowledge of the disclosure.
The administrative judge further correctly found that the knowledge portion
of the knowledge/timing test can be satisfied by showing that an individual with
actual knowledge of the disclosure influenced the individual accused of taking the
retaliatory action. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 11
(2012); ID at 26. Here, the administrative judge considered the appellant’s claim
that he made this disclosure to the proposing official, who then influenced the
deciding official. However, while the administrative judge found that the
appellant made a number of specific complaints to the proposing official about
the enlisted personnel, the proposing official was not questioned during the
hearing about the appellant raising with her any alleged HIPAA violations that
those personnel may have committed. HR (testimony of the proposing official);
ID at 27. The administrative judge concluded, and we agree, that because the
appellant did not establish that the proposing official was aware of this
disclosure, no finding could be made that the deciding official was constructively
aware of it through the proposing official. ID at 27.8
The administrative judge also correctly found that, when the
knowledge/timing test is not satisfied, it is necessary to consider other evidence,
such as evidence pertaining to the strength or weakness of the agency’s reasons
for taking the action, whether the whistleblowing was personally directed at the
official taking the action, and whether these individuals had a desire or motive to
retaliate against the appellant. Dorney, 117 M.S.P.R. 480 ¶ 15; ID at 26. The
administrative judge did not, however, consider any such evidence. Because the
record is complete, we do so here. The reasons for the appellant’s removal are
strong, given the supporting testimonial and documentary evidence, as well as the
appellant’s contemporaneous admissions of wrongdoing, which the administrative
judge credited. The appellant’s disclosure implicated the non -commissioned
officers who supervised the enlisted personnel, not the proposing or the deciding
official. The appellant has not shown or even alleged that those officials had a
motive to retaliate against him or that they influenced in any way the personnel
action at issue. Therefore, after considering these other factors, we agree with the
administrative judge that the appellant has not established that his protected
disclosure was a contributing factor in his removal.7
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
7 The appellant has not challenged on review the administrative judge’s finding that the
appellant’s third disclosure, his reporting that he was not placed on an alternative work
schedule after having been approved for it, was not protected. PFR File, Tab 1; ID at 5.
We discern no basis upon which to disturb this finding.
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.9
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 10
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the11
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of12
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 13
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | Mechanik_Frederick_S_DE-0752-20-0177-I-1_Final_Order.pdf | 2024-11-19 | FREDERICK S. MECHANIK v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-0752-20-0177-I-1, November 19, 2024 | DE-0752-20-0177-I-1 | NP |
351 | https://www.mspb.gov/decisions/nonprecedential/Lamb_Jeffery_C_AT-0752-21-0381-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFERY C. LAMB,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0752-21-0381-I-1
DATE: November 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Esquire, Atlanta, Georgia, for the appellant.
John Timothy Mitchell and Stephen Geisler , Esquire, Anniston, Alabama,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his chapter 75 removal appeal as untimely filed. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
On petition for review, the appellant argues that: (1) he timely appealed
the agency’s removal action “within the 180 day[] time frame;” and (2) the
agency failed to timely provide him with a copy of the notice of proposed
removal. Petition for Review (PFR) File, Tab 1 at 1.2 We find these assertions
unavailing. Indeed, the appellant misstates the timeframe within which he could
have permissibly appealed the agency’s removal action. See 5 C.F.R.
2 Shortly after the issuance of the initial decision, the appellant’s wife filed a petition
for review on behalf of the appellant. PFR File, Tab 1. The Office of the Clerk of the
Board informed the appellant that the filing did not meet the Board’s requirements
because it did not contain an official designation of representative. PFR File, Tab 2
at 1. Thereafter, the appellant properly designated an attorney to represent him. PFR
File, Tab 4 at 1. The appellant’s attorney representative thereafter submitted a filing
indicating that the appellant had intended for his wife’s filing to serve as his petition for
review. PFR File, Tab 6 at 4. We find that this submission perfected the petition for
review filed by the appellant’s wife. Because we find that the appellant’s petition for
review does not provide a basis to disturb the initial decision, we need not address
issues of timeliness associated with the same.
The attorney representative’s filing also states as follows: “[the a]ppellant filed his
petition for review on July 31, 2021 without legal counsel, and respectfully requests
[that OCB] grant the [a]ppellant leave to file an additional pleading in support of his
petition for review.” Id. The appellant’s late retention of legal counsel does not
provide a basis for granting this request; accordingly, we deny the motion. 2
§ 1201.22(b)(1) (stating that an appeal of an agency’s action must be filed no
later than 30 days after the effective date, if any, of the action being appealed, or
30 days after the date of the appellant’s receipt of the agency’s decision,
whichever is later). Moreover, the date on which appellant received the agency’s
notice of proposed removal is not relevant to the timeliness of his Board appeal.
Id.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Lamb_Jeffery_C_AT-0752-21-0381-I-1_Final_Order.pdf | 2024-11-18 | JEFFERY C. LAMB v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-21-0381-I-1, November 18, 2024 | AT-0752-21-0381-I-1 | NP |
352 | https://www.mspb.gov/decisions/nonprecedential/Carvajal_RaulDA-0752-21-0334-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAUL CARVAJAL,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DA-0752-21-0334-I-1
DATE: November 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michelle Powell , Dallas, Texas, for the appellant.
Bridgette Gibson , Esquire, and Kayla Fecke , Esquire, Dallas, Texas, for
the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for failure to prosecute after he failed to comply
with three separate orders. On petition for review, the appellant argues, in part,
that he failed to comply with the orders because he did not always have access to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
a computer, and he needed more time to respond.2 Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 The appellant elected to register as an e-filer when he first filed his appeal. Initial
Appeal File, Tab 1 at 2. An individual who registers as an e-filer is responsible for
monitoring the e-Appeal Repository to keep abreast of developments in his case. Mills
v. U.S. Postal Service , 119 M.S.P.R. 482, ¶ 6 (2013); 5 C.F.R. § 1201.14(j)(3) (2021).
Having elected to register as an e-filer at the time, the appellant’s complaints about
lacking consistent computer and internet access are not an excuse for failing to comply
with the administrative judge’s orders. Regarding his claims that he needed more time
to reply to the administrative judge’s orders, the appellant did not file a request for an
extension of time to file a response, nor is there any evidence in the record that he
contacted the Board by some other method to request such an extension.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation3
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Carvajal_RaulDA-0752-21-0334-I-1_Final_Order.pdf | 2024-11-18 | RAUL CARVAJAL v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DA-0752-21-0334-I-1, November 18, 2024 | DA-0752-21-0334-I-1 | NP |
353 | https://www.mspb.gov/decisions/nonprecedential/Suggs_Dwight_A_SF-0714-19-0052-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DWIGHT A. SUGGS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0714-19-0052-I-1
DATE: November 18, 2024
THIS ORDER IS NONPRECEDENTIAL1
Dwight A. Suggs , Gary, Indiana, pro se.
Cheri Thanh M Hornberger and Mickel-Ange Eveillard , Los Angeles,
California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat 862, 869-73 (codified
as amended at 38 U.S.C. § 714). For the reasons discussed below, we GRANT
the appellant’s petition for review, VACATE the initial decision, and REMAND
the case to the Washington Regional Office for further adjudication in accordance
with this Remand Order.
BACKGROUND
The appellant was employed as a WG-3 Housekeeping Aid. Initial Appeal
File (IAF), Tab 4 at 27. On August 27, 2018, the agency proposed his removal
pursuant to 38 U.S.C. § 714 based on the following charges: (1) conduct
unbecoming a Federal employee, with four specifications; (2) absence without
leave (AWOL), with three specifications; (3) failure to follow instructions, with
one specification; (4) and failure to follow procedures, with three specifications.
Id. at 96-101. After considering the appellant’s written response to the proposal,
id. at 47-94, the deciding official issued a decision letter dated October 15, 2018,
sustaining the charges and the removal penalty, id. at 30-33. The appellant was
removed from his position effective October 17, 2018. Id. at 30.
The appellant filed a Board appeal challenging his removal and requested a
hearing. IAF, Tab 1. He raised affirmative defenses of disability discrimination,
retaliation for his prior equal employment opportunity (EEO) activity, and
retaliation for protected whistleblowing activity. IAF, Tabs 16, 25, 39.
After a hearing, IAF, Tabs 42, 44, the administrative judge issued an initial
decision sustaining the removal, IAF, Tab 47, Initial Decision (ID) at 1, 48.
Specifically, the administrative judge determined that the agency proved by
substantial evidence all four specifications of conduct unbecoming, all three
specifications of AWOL, the single specification of failure to follow instructions,
and specifications 1 and 3 of failure to follow procedures. ID at 4-27. She
further concluded that the appellant did not prove any of his affirmative defenses.
ID at 27-46. Finally, the administrative judge determined that, because the action2
was taken pursuant to 38 U.S.C. § 714, the agency was not required to establish
the efficiency of the service or the reasonableness of the penalty. ID at 46-48.
The appellant has filed a petition for review of the initial decision.2
Petition for Review (PFR) File, Tab 1. The agency has filed a response in
opposition to the petition, and the appellant has filed a reply. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved all of its charges.
The administrative judge correctly concluded that the agency proved the
charges of conduct unbecoming and AWOL .
On review, the appellant argues that the agency did not prove the fourth
specification of conduct unbecoming or the first specification of AWOL. PFR
File, Tab 4 at 6. These specifications concern the same incident, during which
the appellant allegedly accompanied an employee to an administrative
investigative board (AIB) interview during duty hours even though he was not an
approved attendee and had not received permission to attend the meeting as the
employee’s representative. IAF, Tab 4 at 97, 120, 123. The gravamen of the
conduct unbecoming specification was that the appellant appeared as another
employee’s official representative even though he had not been designated as
such, and he refused to leave the area outside of the meeting room even after
another agency employee and an agency police officer instructed him to do so.
ID at 11. Regarding the AWOL specification, the administrative judge found
that, although the appellant submitted an unsworn written statement from an
agency employee stating that the appellant had informed him that he was “going
2 The appellant asserts on review that new and material evidence exists that was not
available when the record closed below, and he provides a number of documents with
his petition for review. PFR File, Tab 1 at 1, 3-30, Tab 4 at 6-7, 10-11. We have
reviewed the provided documents and conclude that none of them are new or material.
See Okello v. Office of Personnel Management , 112 M.S.P.R. 563, ¶ 10 (2009) (noting
that under 5 C.F.R. § 1201.115(d), the Board will not consider evidence submitted for
the first time with a petition for review absent a showing that it is both new and
material). 3
to a hearing,” it was unclear what role that employee had in the leave approval
process. The administrative judge further found that the appellant had not
provided any evidence that, even if he had requested to attend the meeting, his
request was granted by an agency official with the authority to grant the request
for leave. ID at 13-14; see Wilson v. Small Business Administration , 2024 MSPB
3, ¶ 7 (explaining that, 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); IAF, Tab 12 at 21.
On review, the appellant asserts that the administrative judge erred in
determining that the agency proved these specifications, and he provides a second
unsworn statement from the same agency employee referenced in the above
paragraph. PFR File, Tab 1 at 29, Tab 4 at 6. However, the content of that
statement is substantially similar to the one included in the record below, which
the administrative judge considered but gave little weight to because it was vague
and uncorroborated. ID at 14. Additionally, as the administrative judge noted,
the agency contends that the appellant did not submit a leave request to an agency
official responsible for granting leave, and the appellant has not provided any
evidence that he submitted a leave request and that the agency approved any such
request. ID at 14; IAF, Tab 12 at 21. Accordingly, we find no reason to disturb
the administrative judge’s findings on these specifications.
The administrative judge also correctly determined that the agency proved
the charges of failure to follow instructions and failure to follow
procedures.
Under the failure to follow instructions charge, the agency alleged that, on
the morning of August 21, 2018, the appellant’s first -line supervisor instructed
him to clean the canteen area and to complete an inspection report, but the
appellant refused to do so. IAF, Tab 4 at 98. The specification states that the
appellant refused a second instruction to section off and clean the area and that,4
when his supervisor performed a second inspection of the canteen area later the
same morning, it still had not been cleaned. Id.
The first specification of the charge of failure to follow procedures alleged
that, on that same day, the appellant informed the Canteen Chief that he would
not clean behind the appliances or mop and sweep the checkered floors in the
canteen because it was not a part of his regular duties and because he was not
paid overtime to do so. Id. at 98-99. The second specification of the failure to
follow procedures charge alleged that, on May 22, 2018, the appellant failed to
move two linen carts from a food preparation area after being instructed to do so
by the Regional Manager of the Veterans Canteen Service (VCS). Id. at 99. The
third specification of the failure to follow procedures charge alleged that, on
May 23, 2018, the appellant entered the kitchen area of the canteen without a
beard net and refused to put on a beard net even after the Regional Manager of
VCS provided him with one and instructed him to put it on. Id.
On review, the appellant argues that the agency did not prove these charges
and specifications. PFR File, Tab 4 at 5; IAF, Tab 4 at 98-99. The appellant
argues that these duties were not his responsibility and that he therefore could not
have failed to follow instructions or procedures when he failed to complete them.
PFR File, Tab 4 at 5.
The administrative judge considered the appellant’s argument that these
duties were not his responsibility, but she credited the testimony of the VCS
Service Chief, who testified that these duties were part of the appellant’s regular
duties. ID at 20-21 (citing IAF, Tabs 42-6 to 42-7, Hearing Recording (testimony
of the VCS Service Chief)). The administrative judge noted that the VCS Service
Chief and the appellant’s first-line supervisor testified credibly and consistently
that the appellant’s position description required that he sweep and mop the
floors, including the checkered floor that he refused to clean. ID at 21-23 (citing
IAF, Tabs 42-6 to 42-7, Hearing Recording (testimony of the VCS Service
Chief)); IAF, Tabs 44-5 to 44-6, Hearing Recording (testimony of the appellant’s5
first-line supervisor)); see Hillen v. Department of the Army , 35 M.S.P.R. 453,
458 (1987) (finding that consistency of the evidence is an important factor in
assessing credibility). Accordingly, we similarly find no error in the
administrative judge’s findings regarding these charges and specifications.
The appellant has not challenged the administrative judge’s findings
concerning the remaining specifications, and we discern no basis to disturb them.
Accordingly, we also agree with the administrative judge that the agency proved
all four charges. See Burroughs v. Department of the Army , 918 F.2d 170, 172
(Fed. Cir. 1990) (holding that, when more than one event or factual specification
supports a single charge, proof of one or more, but not all, of the supporting
specifications is sufficient to sustain the charge).
The appellant did not prove his disability discrimination claims.
The appellant raised disability discrimination defenses under both disparate
treatment and retaliation theories.3 To prove disparate treatment disability
discrimination, an appellant must show that he was a qualified individual with a
disability and that disability discrimination was at least a motivating factor in the
action under appeal. Haas v. Department of Homeland Security , 2022 MSPB 36,
¶ 28; Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 40.
Applying the burden-shifting framework of McDonnell Douglas Corp. v. Green ,
411 U.S. 792, 802 (1973), the administrative judge found that, although the
appellant was disabled within the meaning of the Rehabilitation Act, and that he
suffered an adverse employment action, he did not offer evidence sufficient to
raise an inference of discrimination. ID at 30-36.
On review, the appellant reiterates that he is an individual with a disability,
but he has not identified any error in the administrative judge’s determination that
3 The appellant also claimed disability discrimination under a disparate impact theory.
IAF, Tab 16 at 3, Tab 25 at 5; see generally Watson v. Fort Worth Bank and Trust ,
487 U.S. 977, 993-95 (1988) (setting forth the elements of a disparate impact claim).
The administrative judge found that the appellant failed to prove this affirmative
defense. ID at 37-38. The appellant does not contest this finding on review, and for the
reasons stated in the initial decision, we agree with the administrative judge.6
his disability was not a motivating factor in his removal. PFR File, Tab 1 at 1,
Tab 4 at 4, 7-9. We clarify that the appellant has established that he not only is
disabled but also is a qualified individual with a disability, i.e., one who can
perform the essential functions of his position with or without reasonable
accommodation. See 42 U.S.C. § 12111(8). However, we find that the
administrative judge considered the relevant evidence as a whole and accurately
characterized that evidence in deciding the motivating factor issue. ID at 32-36.
For the reasons explained in the initial decision, we agree with the administrative
judge that disability was not a motivating factor in the removal. Id.
To prove an affirmative defense of retaliation under the Rehabilitation Act,
an appellant must show that he engaged in activity protected under the
Rehabilitation Act and that retaliation for the activity was a but-for cause of the
agency’s action. Pridgen, 2022 MSPB 31, ¶¶ 46-47. The administrative judge
found that the appellant engaged in protected activity by filing a request for
reasonable accommodation and by filing a disability discrimination complaint
with the Department of Health and Human Services’ Office of Civil Rights. ID
at 40. However, she found that the appellant did not prove that his removal was
motivated by retaliatory animus for these activities. ID at 40-41. Specifically,
she found no evidence that any of the responsible management officials were
aware of the appellant’s disability discrimination complaint, and although the
appellant’s supervisors probably could have inferred that the appellant had
requested reasonable accommodation sometime in the past, there was no evidence
that they harbored any animus against him for it. Id. Although the administrative
judge applied the motivating factor causation standard instead of the but-for
standard, we agree with her ultimate conclusion. See Williams v. Department of
Commerce, 2024 MSPB 8, ¶ 17 n.7 (“The administrative judge’s finding that the
appellant failed to prove motivating factor causation necessarily means that he
failed to prove but-for causation.”). Under the circumstances of this case, the
mere fact that the appellant engaged in protected activity of which some of the7
responsible management officials may have been aware is insufficient to establish
that retaliation was a but-for cause of his removal. See Carter v. Department of
the Army, EEOC Appeal No. 0120061789, 2007 WL 1320653 at *3 (Apr. 27,
2007).
On remand, the administrative judge should make findings as to whether the
appellant’s protected whistleblowing activity was a contributing factor in his
removal.
The appellant raised a whistleblower reprisal affirmative defense, which
the administrative judge found that the appellant failed to prove. IAF, Tab 16
at 9; ID at 41-46. To establish an affirmative defense of reprisal for protected
whistleblowing activity, the appellant must prove that he made a protected
disclosure under 5 U.S.C. § 2302(b)(8) or participated in protected activity under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D) and that the protected disclosure or
activity was a contributing factor in the agency’s personnel action. Ayers v.
Department of the Army , 123 M.S.P.R. 11, ¶ 12 (2015); Alarid v. Department of
the Army, 122 M.S.P.R. 600, ¶¶ 12-13 (2015).
We agree with the administrative judge that the appellant engaged in the
protected activity of contacting the agency’s Office of Inspector General.
The appellant alleged below that he engaged in protected activity when he
attempted to accompany another employee to an AIB interview on June 15, 2018,
and when he contacted the agency’s Office of the Inspector General (OIG) hotline
on October 11, 2018, alleging that the agency had been training its employees on
“how to avoid whistleblowing laws” and “persecute whistleblowers.” IAF, Tab 4
at 51, 120-21, 123, Tab 8 at 21-23, Tab 31. The administrative judge also
considered as potential whistleblowing disclosures emails in which the appellant
raised complaints about his work environment and safety, including claims that
he had been provided inadequate cleaning supplies and had not been supplied
safety shoes, that a customer threw a heavy metal object at him, and that other
agency employees failed to adequately provide coverage or clean required areas8
of the agency’s facilities. IAF, Tab 9 at 6-7, 14-15, Tab 10 at 15-20. The
administrative judge found that the appellant’s emails about his lack of safety
shoes and the inadequate coverage and insufficient cleaning at agency facilities
were vague, conclusory, and unsupported, and lacked sufficient detail to evidence
wrongdoing under 5 U.S.C. § 2302(b)(8). ID at 44-45. She concluded that, other
than his complaint to OIG, the appellant failed to establish that he made protected
disclosures or engaged in protected activity. ID at 43-45. On review, the
appellant generally reasserts that he engaged in protected whistleblowing activity
in connection with his unsuccessful effort to attend an AIB interview on June 15,
2018. PFR File, Tab 1 at 2.
The administrative judge considered the appellant’s claim that he attempted
to accompany another agency employee to an AIB interview in addressing
specification 4 of the conduct unbecoming charge and specification 1 of the
AWOL charge. ID at 9-14. However, she did not consider this claim as a
potential affirmative defense of retaliation for activity protected under 5 U.S.C.
§ 2302(b)(9)(B), nor did she apprise the appellant of his burden of establishing
such a claim. ID at 9-14. Therefore, we address this potential protected activity
here.
Under 5 U.S.C. § 2302(b)(9)(B), protected activity includes “testifying for
or otherwise lawfully assisting any individual in the exercise” of any appeal,
complaint, or grievance right. 5 U.S.C. § 2302(b)(9)(A)-(B); McCray v.
Department of the Army , 2023 MSPB 10, ¶ 23. As the administrative judge
observed, although the appellant attempted to accompany the employee during his
AIB interview, he was not assisting or representing the employee as a union
representative or in any other capacity. ID at 9-11; IAF, Tab 4 at 50-51, 120,
123, Tabs 8-9, 31. Nor was the employee’s participation in an AIB investigation
the exercise of an appeal, complaint, or grievance right. Graves v. Department of
Veterans Affairs, 123 M.S.P.R. 434, ¶¶ 14-19 (2016). We therefore agree find9
that the appellant’s activity in the regard was not protected under the
Whistleblower Protection Act.
On remand, the administrative judge must consider whether the appellant
established that his OIG complaint was a contributing factor in his removal
by means other than the knowledge/timing test.
To prove that whistleblowing activity was a contributing factor in a
personnel action, an appellant need only demonstrate that the protected activity
was one of the factors that tended to affect the personnel action in any way.
Ayers, 123 M.S.P.R. 11, ¶ 25; Dorney v. Department of the Army , 117 M.S.P.R.
480, ¶ 14 (2012). The most common way of proving contributing factor is the
knowledge/timing test of 5 U.S.C. § 1221(e)(1). See Wadhwa v. Department of
Veterans Affairs , 110 M.S.P.R. 615, ¶ 12, aff’d per curiam , 353 F. App’x 435
(Fed. Cir. 2009). Under that test, an appellant can prove the contributing factor
element through evidence showing that the official taking the personnel action
knew of the activity and that the personnel action occurred within a period of
time such that a reasonable person could infer that the activity was a contributing
factor in the personnel action. Wadhwa, 110 M.S.P.R. 615, ¶ 12. For the reasons
explained in the initial decision, we agree with the administrative judge that the
appellant did not prove contributing factor under the knowledge/timing test. ID
at 45-46.
However, the Board has held that the knowledge/timing test is not the only
way an appellant can establish that his protected activity was a contributing factor
in the agency’s personnel action. If an appellant fails to satisfy the
knowledge/timing test, the Board must consider other evidence, such as that
pertaining to the strength or weakness of the agency’s reasons for taking the
personnel action, whether the whistleblowing was personally directed at the
proposing or deciding official, and whether those individuals had a desire or
motive to retaliate against the appellant. Rumsey v. Department of Justice ,
120 M.S.P.R. 259, ¶ 26 (2013); Dorney, 117 M.S.P.R. 480, ¶ 15 (2012). These10
factors are a nonexhaustive list of the types of evidence that may be relevant to a
contributing factor determination. See Dorney, 117 M.S.P.R. 480, ¶15 (reflecting
that the listed factors are the types of factors to be considered). The
administrative judge did not address the factors set forth in Dorney. Therefore,
we must remand this issue for a determination.
The administrative judge who oversaw the proceedings below and issued
the initial decision is no longer employed by the Board. When there is conflicting
testimony on a material issue, and a new administrative judge will decide the
case, the testimony should be heard again to permit her to make credibility
determinations based on witness demeanor. Lin v. Department of the Air Force ,
2023 MSPB 2, ¶ 24. On remand, the assigned administrative judge must
reconsider whether the appellant has established that his protected activity of
filing an OIG complaint was a contributing factor in the removal action based on
the considerations set forth in Dorney, 117 M.S.P.R. 480, ¶ 15. In doing so, the
administrative judge should permit the parties to submit evidence and argument
and hold a supplemental hearing on the issue. Lin, 2023 MSPB 2, ¶ 24. If, after
conducting this analysis, the administrative judge finds that the appellant has
proven contributing factor, then the administrative judge must proceed to
determining whether the agency has proven by clear and convincing evidence that
it would have taken the same personnel action in the absence of the protected
disclosures. See Ayers, 123 M.S.P.R. 11, ¶¶ 12, 27.
We remand the appeal for further adjudication consistent with Semenov v.
Department of Veterans Affairs , 2023 MSPB 16.
The deciding official sustained the appellant’s removal based on his
conclusion that substantial evidence supported the charges. IAF, Tab 4 at 30.
After the initial decision in this case was issued, the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) issued its decision in Rodriguez v. Department
of Veterans Affairs , 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), in which it
determined that the agency erred by applying a substantial evidence burden of11
proof to its internal review of a disciplinary action taken under 38 U.S.C. § 714.4
Substantial evidence is the standard of review to be applied by the Board, not the
agency; an agency’s deciding official must apply the preponderance of the
evidence burden of proof. Semenov v. Department of Veterans Affairs ,
2023 MSPB 16, ¶ 21 (citing Rodriguez, 8 F.4th at 1298-1301). The Board
analyzes under a harmful error standard a deciding official’s review of a proposed
action for substantial evidence. Semenov, 2023 MSPB 16, ¶¶ 22-24.
As previously noted, the decision letter states that the deciding official
sustained the appellant’s removal based on his conclusion that the charges were
supported by substantial evidence. IAF, Tab 4 at 30. During the hearing, neither
party elicited any clarifying testimony concerning the burden of proof that the
deciding official applied in sustaining the charges. IAF, Tabs 44-8 to 44-9,
Hearing Recording (testimony of the deciding official). The administrative judge
and the parties did not have the benefit of Rodriguez, and they were therefore
unable to address its impact on this appeal. Accordingly, we remand this case for
the assigned administrative judge to decide whether the agency’s apparent error
in applying the substantial evidence burden of proof was harmful. On remand,
the administrative judge should provide the parties with an opportunity to present
evidence and argument, including holding a supplemental hearing and addressing
whether the agency’s use of the substantial evidence standard in the removal
decision constituted harmful error. Semenov, 2023 MSPB 16, ¶ 24. The
administrative judge should then address this affirmative defense in the remand
initial decision. Id. Regardless of whether the appellant proves harmful error in
the agency’s application of the substantial evidence burden of proof in the
removal decision, if any argument or evidence on remand affects the analysis of
4 The VA Accountability Act was signed into law on June 23, 2017, prior to all of the
events at issue in this appeal, and so retroactivity considerations are not implicated
here. See Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1374, 1380-82
(Fed. Cir. 2020) (concluding that applying 38 U.S.C. § 714 to conduct that occurred
prior to its June 23, 2017 enactment would have an impermissible retroactive effect). 12
the appellant’s affirmative defenses or the agency’s penalty, the administrative
judge should address such argument or evidence in the remand initial decision.
Id., ¶ 25.
On remand, the administrative judge should review the agency’s selected penalty
of removal under Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06
(1981).
The administrative judge did not review the reasonableness of the agency’s
penalty. Rather, she concluded that the Board lacked the authority to mitigate the
agency’s chosen penalty in actions taken under 38 U.S.C. § 714 and that the
Douglas factors were immaterial in appeals of such actions. ID at 45-47. After
the initial decision was issued, the Federal Circuit held in Connor v. Department
of Veterans Affairs , 8 F.4th 1319, 1325-26 (Fed. Cir. 2021), that the agency and
the Board must consider and apply the nonexhaustive factors set forth in Douglas
v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), to its review of an
agency’s penalty selection under 38 U.S.C. § 714. See Semenov, 2023 MSPB 16,
¶¶ 44-49 (citing Connor, 8 F.4th at 1325-26). The court held that, although
section 714 precludes the Board from mitigating the agency’s chosen penalty, “if
the Board determines that the [agency] failed to consider the Douglas factors or
that the chosen penalty is unreasonable, the Board must remand to the [agency]
for a redetermination of the penalty.” Connor, 8 F.4th at 1326-27 (citing Brenner
v. Department of Veterans Affairs , 990 F.3d 1313, 1325 (Fed. Cir. 2021)
(explaining that, “if the [Board] concludes that the [agency’s] removal decision is
unsupported by substantial evidence, the [Board] should remand to the [agency]
for further proceedings”)).
The administrative judge and the parties did not have the benefit of Connor
and therefore were unable to address its impact on this appeal. As the
administrative judge noted in the initial decision, the deciding official appears to
have indicated in his testimony that he considered at least some of the relevant
Douglas factors in deciding to sustain the removal action, including the13
appellant’s past work record and length of service, his prior disciplinary record,
and his rehabilitative potential. ID at 47 n.11; IAF, Tab 44-8, Hearing Recording
(testimony of the deciding official). However, he did not explain the weight he
gave to these factors or indicate that he considered any other relevant Douglas
factors. Thus, the record is unclear as to whether he properly considered the
Douglas factors in deciding to remove the appellant. Accordingly, we must
remand for further adjudication of this issue.
On remand, the assigned administrative judge should permit the parties to
submit additional evidence and argument on the penalty issue, including
accepting testimony on this issue at the supplemental hearing. See Semenov,
2023 MSPB 16, ¶ 50. In reviewing the penalty, the administrative judge should
determine whether the agency proved by substantial evidence that it properly
applied the relevant Douglas factors and whether the agency’s penalty selection
was reasonable and, if not, should remand the appellant’s removal to the agency
for a new decision on the appropriate penalty. Id. (citing Connor, 8 F.4th
at 1326-27; Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1375-76,
1379 (Fed. Cir. 2020)).14
ORDER
For the reasons discussed above, we vacate the initial decision and remand
this appeal to the Western Regional Office for further adjudication in accordance
with this Remand Order. As outlined above, the assigned administrative judge
will allow for further development of the record on the appellant’s whistleblower
defense, the harmful error issue, and the issue of penalty. The administrative
judge shall then issue a new initial decision addressing these matters. The
administrative judge may incorporate into the remand decision the remaining
findings, as modified above, into the remand initial decision.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15 | Suggs_Dwight_A_SF-0714-19-0052-I-1_Remand_Order.pdf | 2024-11-18 | DWIGHT A. SUGGS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0714-19-0052-I-1, November 18, 2024 | SF-0714-19-0052-I-1 | NP |
354 | https://www.mspb.gov/decisions/nonprecedential/Ware_Damien_L_CH-1221-20-0344-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAMIEN LAMONT WARE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-20-0344-W-1
DATE: November 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Damien Lamont Ware , Cleveland, Ohio, pro se.
Beth K. Donovan , St. Louis, Missouri, for the agency.
Nick Pasquarella , Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A, Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in his individual right of action (IRA)
appeal, finding that the agency proved by clear and convincing evidence that it
would have removed him absent his whistleblower activities. On petition for
review, the appellant argues that the administrative judge erred by (1) ignoring
the agency’s pattern of retaliation; (2) failing to consider evidence or argument
about his equal employment opportunity (EEO) complaints and other complaints;
and (3) not addressing several procedural errors committed by the agency in his
removal.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
2 As for the appellant’s claims of harmful procedural error, we cannot address these
allegations because any allegations of harmful error by the agency are not within the
authority of the Board to adjudicate in an IRA appeal. Hooker v. Department of
Veterans Affairs , 120 M.S.P.R. 629, ¶ 5 (2014). Regarding the failure of the
administrative judge to consider the facts of the appellant’s EEO complaints or his other
complaints, we agree with the administrative judge’s handling of the matter. Initial
Appeal File (IAF), Tab 13 at 4-5, Tab 32 at 6-7. It is well established that allegations
of retaliation for exercising a Title VII right do not fall within the scope of an IRA
appeal. Young v. Merit Systems Protection Board , 961 F.3d 1323, 1329 (Fed. Cir.
2020); Redschlag v. Department of the Army , 89 M.S.P.R. 589, ¶ 84 (2001) (the Board
will not consider disclosures involving alleged discrimination or reprisal for engaging
in activities protected by Title VII even if the disclosures were made outside of the
grievance or EEO process in an IRA appeal). Further, the administrative judge
extensively reviewed and considered the appellant’s previous complaints in finding that
he established by preponderant evidence that he engaged in protected disclosures and
activities and that he established the contributing factor element. IAF, Tab 52, Initial
Decision (ID) at 2-11, 19-20. To the extent the appellant argues that the administrative
judge should have made new findings or conclusions on the facts underlying these
previous complaints, the only action at issue here is the removal, and thus any findings
not related to the removal would be outside the scope of this appeal.2
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that 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).
Upon review of the record, we agree with the administrative judge’s
finding that the agency demonstrated by clear and convincing evidence that it
would have removed the appellant absent his protected disclosures and activities.
Initial Appeal File, Tab 52, Initial Decision (ID) at 29. In determining whether
the agency met its burden, the administrative judge properly considered all
relevant factors, including the following: (1) the strength of agency’s evidence in
support of its action; (2) the existence and strength of any motive to retaliate on
the part of the agency officials who were involved in the decision; and (3) any
evidence that the agency takes similar actions against employees who do not
engage in such protected activity, but who are otherwise similarly situated. Carr
v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999).
The U.S. Court of Appeals for the Federal Circuit has articulated a broader
and more flexible approach to the second Carr factor, i.e., the agency’s motive to
retaliate. See Miller v. Department of Justice , 842 F.3d 1252, 1261-62 (Fed. Cir.
2016) (explaining that the second Carr factor should be evaluated “more
generally” because the factor is directed at agency officials involved in making
the decision, not just at the employee’s direct supervisor); Whitmore v.
Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012) (finding that those
responsible for the agency’s performance overall may be motivated to retaliate
even if they were not directly implicated by the disclosures or did not personally
know the whistleblower because the criticism could reflect on them in their
capacities as managers and employees). Based on this language, we acknowledge3
that the administrative judge’s findings that there was “no evidence” that the
agency’s decision makers had a motive to retaliate or that the appellant’s
whistleblowing was “not a factor” in his removal may have been an overstatement
of the record because the deciding official and the Human Resources (HR)
Specialist involved in the removal process had knowledge of the appellant’s
protected disclosures and activities. ID at 28; Hearing Recording (testimony of
the deciding official, testimony of the appellant, testimony of the HR Specialist).
Thus, consistent with Miller, Whitmore, and similar cases, a motive to retaliate
may have existed. Nevertheless, we find no other evidence of a motive to
retaliate absent basic knowledge of the appellant’s whistleblowing, and thus, any
motive to retaliate, if it existed here, was slight and does not outweigh the other
factors, especially the strength of the agency’s evidence in support of the removal
action. Thus, we agree with the administrative judge’s conclusion that the agency
proved by clear and convincing evidence that it would have removed him absent
his whistleblower status. ID at 29.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 6
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Ware_Damien_L_CH-1221-20-0344-W-1_Final_Order.pdf | 2024-11-18 | DAMIEN LAMONT WARE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-20-0344-W-1, November 18, 2024 | CH-1221-20-0344-W-1 | NP |
355 | https://www.mspb.gov/decisions/nonprecedential/Fertil_JeanineNY-0752-22-0035-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEANINE FERTIL,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-0752-22-0035-I-1
DATE: November 18, 2024
THIS ORDER IS NONPRECEDENTIAL1
Jeanine Fertil , Fleetwood, New York, pro se.
Erica Holder , Esquire, Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal as untimely filed. For the reasons discussed below,
we GRANT the appellant’s petition for review, VACATE the initial decision, and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
REMAND the case to the Northeastern Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
On November 3, 2021, the agency issued a decision removing the appellant
from her GS-9 Program Analyst position, effective November 8, 2021. Initial
Appeal File (IAF), Tab 10 at 13, 15-22. According to the parties’ submissions
below, the appellant received the decision on November 18, 2021. IAF, Tab 1
at 1, Tab 10 at 7. The appellant filed an appeal of her removal on December 21,
2021, IAF, Tab 1, and the administrative judge ordered the appellant to submit
evidence and argument showing that her appeal was timely filed or that good
cause existed for the delay in filing, IAF, Tab 3 at 2-4. After considering the
appellant’s response, the administrative judge issued an initial decision
dismissing the appeal as untimely filed, finding that the appeal was 1 day
untimely without good cause shown. IAF, Tab 29, Initial Decision (ID) at 5-6.
The initial decision stated that it would become final on March 14, 2022,
unless a petition for review was filed by that date. ID at 6. On March 15, 2022,
the appellant filed a petition for review of the initial decision. Petition for
Review (PFR) File, Tab 1 at 3, Tab 2 at 1. She alleges for the first time that she
did not receive the removal decision on November 18, 2021, but rather she
received it on November 21, 2021. PFR File, Tab 1 at 4. She also alleges that
she drafted and thought she had submitted her initial appeal on December 20,
2021, but submitted it the following day after she received an e-Appeal email
informing her that her appeal had not yet been submitted. Id. The Acting Clerk
of the Board subsequently notified the appellant that her petition for review
appeared to be untimely and provided her with an opportunity to submit a motion
requesting either to accept the filing as timely or waive the time limit for good
cause. PFR File, Tab 2 at 2. The appellant has not provided a response. The
agency has responded to the petition for review. PFR File, Tab 3. 2
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has demonstrated good cause for her untimely filed petition
for review.
The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the date of issuance,
within 30 days after the date she received the initial decision. 5 C.F.R.
§ 1201.114(e). The appellant was registered as an e-filer at the time, and,
therefore, is deemed to have received the administrative judge’s orders on the
date of electronic submission. IAF, Tab 1 at 2, Tab 15; Rivera v. Social Security
Administration, 111 M.S.P.R. 581, ¶ 5 (2009); 5 C.F.R. § 1201.14(m)(2) (2022).
We therefore deem the appellant to have received the initial decision on
February 7, 2022, the date it was electronically submitted. ID at 1; IAF, Tab 15.
Thus, her deadline for filing a petition for review was 35 days later, on
March 14, 2022. ID at 6. The appellant filed her petition for review on
March 15, 2022 at 12:07 a.m., 7 minutes after the deadline. PFR File, Tab 1.
Accordingly, the appellant’s March 15, 2022 petition for review was
untimely filed.
However, the Board will waive its filing deadline upon a showing of good
cause for the delay in filing. 5 C.F.R. §§ 1201.114(f)-(g). As here, when there is
an absence of a motion showing good cause for an untimely filing, the Board may
nevertheless exercise its discretion to decide the issue based on the existing
record. Wiggins v. Department of the Air Force, 113 M.S.P.R. 443, ¶ 8 (2010);
5 C.F.R. § 1201.114(f). 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 the case. Alonzo v. Department of the Air Force,
4 M.S.P.R. 180, 184 (1980). 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 whether she has presented evidence of the existence of3
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 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).
The pro se appellant alleges in her petition for review that her untimeliness
should be waived because she is unfamiliar with the Board’s appeal process and
encountered difficulties with the Board’s e-Appeal system when submitting her
initial appeal. PFR File, Tab 1 at 4. Under certain circumstances, the Board has
excused delays in filing caused by difficulties encountered with the Board’s
e-Appeal system. See, e.g., Salazar v. Department of the Army, 115 M.S.P.R.
296, ¶¶ 6-8 (2010) (excusing a filing delay when the appellant alleged that he
attempted to electronically file his petition for review on time, and once the
appellant became aware that his petition had not been filed, he contacted the
Board and submitted a petition for review that included an explanation of his
untimeliness); Lamb v. Office of Personnel Management, 110 M.S.P.R. 415, ¶ 9
(2009) (excusing the untimely filing of an appeal when the appellant reasonably
believed he filed timely by completing all the questions on the on-line appeal
form and exited the website without receiving a clear warning that his appeal was
not filed).
Based on the facts of this case, we conclude that the appellant has
established good cause for her untimeliness. Here, the appellant is pro se and her
approximate 7-minute delay is minimal. See Wiggins, 113 M.S.P.R. 443, ¶¶ 7, 9
(finding good cause when the pro se appellant created his petition for review in
e-Appeal before the deadline, but did not complete the electronic submission until
4 minutes after the filing deadline). She is also not familiar with the e-Appeal
system, having only filed a total of 3 pleadings electronically during her initial
appeal and petition for review proceedings. E.g., IAF, Tabs 1, 13; PFR File,
Tab 1. Moreover, as explained below, the appellant has shown that she4
encountered similar difficulty submitting her appeal with the Board’s e-Appeal
system. See Social Security Administration v. Price, 94 M.S.P.R. 337, ¶ 7 (2003)
(finding good cause when agency counsel began sending the petition via facsimile
on the due date but, due to technical problems, failed to complete the submission
until 34 minutes past the filing deadline), aff’d, 398 F.3d 1322 (Fed. Cir. 2005).
In light of our finding that the appellant has established good cause for her
untimely filing, and because the agency has not alleged that it was prejudiced by
the approximate 7-minute delay, we find that waiver of the filing deadline is
appropriate. See Wiggins, 113 M.S.P.R. 443, ¶ 9.
The appellant has also demonstrated good cause for her untimely filed appeal.
On review, the appellant challenges the administrative judge’s finding that
her appeal was untimely and alleges for the first time that she did not receive the
agency’s removal decision until November 21, 2021. PFR File, Tab 1 at 4.
She submits a waterpark receipt that she claims shows that she was traveling from
November 18-20, 2021 and, therefore, did not receive the agency’s removal
decision until her return home on November 21, 2021. Id. at 4-5. She also
submits a copy of the United Parcel Service (UPS) Next Day Air envelope from
the agency’s removal decision containing a tracking number and a sticker dated
November 18, 2021, which the appellant explains was the reason she indicated on
her initial appeal form that she received the decision on November 18, 2021. Id.
at 4, 6.
Under 5 C.F.R. § 1201.22(b)(3), an appellant is deemed to have received an
agency decision letter on the date it was received at the address the appellant
provided to the agency, even if the appellant received it later. Marcantel v.
Department of Energy, 121 M.S.P.R. 330, ¶¶ 5-9 (2014); see also Little v. U.S.
Postal Service, 124 M.S.P.R. 183, ¶ 9 (2017) (finding that an appellant who fails
to pick up mail delivered to her post office box is deemed to have constructively
received the mail the date it was delivered to her post office box). Even assuming5
that the November 18, 2021 date on the UPS Next Day Air envelope was the date
that the package was mailed to the appellant, and not the date of delivery, the
appellant would have received the decision the following day on November 19,
2021. PFR File, Tab 1 at 4, 6. Therefore, her deadline to file her appeal would
have still been December 20, 2021, and her December 21, 2021 appeal would still
be untimely by 1 day.2
On review, the appellant alleges for the first time that she encountered
difficulties with the Board’s e-Appeal system when submitting her initial appeal.
PFR File, Tab 1 at 4. Specifically, she asserts that she thought she had submitted
her appeal on December 20, 2021, until she received an email from e-Appeal on
December 21, 2021, at 2:52 p.m. informing her that she had not submitted her
appeal, at which point she submitted it at 3:27 p.m. IAF, Tab 1 at 1; PFR File
Tab 1 at 4, 7. The Board’s records reflect that emergency maintenance was
performed on December 20, 2021, from 9:00 p.m. to 10:30 p.m., at which time
e-Appeal was down, which supports the appellant’s claims of technical
difficulties. See Boykin v. U.S. Postal Service, 104 M.S.P.R. 460, ¶ 6 (2007)
(excusing a 1-day delay in filing when an appellant’s representative reported
making multiple attempts to timely file and the Board’s records reflected a high
incidence of users reporting problems with the e-Appeal system during the date in
question). Therefore, we find that the appellant has established good cause for
the untimely filing of her appeal.3
2 Thirty days from November 19, 2021, was Sunday, December 19, 2021. Therefore,
the filing deadline was the next business day, Monday, December 20, 2021. See
5 C.F.R. § 1201.23.
3 Because we find that the appellant established good cause for her untimely filed
appeal, we need not consider any remaining arguments she re-raises on review,
including for example that her untimeliness should be excused because she “had to tend
to sick family members.” PFR File, Tab 1 at 4. 6
ORDER
For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
On remand, the administrative judge should further develop the record as to the
merits of the appeal and hold the appellant’s requested hearing. IAF, Tab 1 at 2.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Fertil_JeanineNY-0752-22-0035-I-1_Remand_Order.pdf | 2024-11-18 | JEANINE FERTIL v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-0752-22-0035-I-1, November 18, 2024 | NY-0752-22-0035-I-1 | NP |
356 | https://www.mspb.gov/decisions/nonprecedential/Ware_Damien_L_CH-0752-20-0473-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAMIEN LAMONT WARE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0752-20-0473-I-1
DATE: November 18, 2024
THIS ORDER IS NONPRECEDENTIAL1
Damien Lamont Ware , Cleveland, Ohio, pro se.
Nick Pasquarella , Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as untimely filed . For the reasons discussed below,
we GRANT the appellant’s petition for review, VACATE the initial decision, and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
BACKGROUND
¶2The appellant was a GS-09 Legal Administrative Specialist for the agency.
Initial Appeal File (IAF), Tab 5 at 10. By letter dated March 10, 2020, the
agency notified the appellant that he was being removed under the authority of
38 U.S.C. § 714, effective March 16, 2020. Id. at 10-16. The decision letter
informed the appellant of the various avenues available for contesting his
removal, how to elect a remedy, the preclusive consequences of electing a
remedy, and the time limits applicable to each forum, including the statutory
10-day deadline for filing an appeal directly with the Board. Id. at 14-15; see
38 U.S.C. § 714(c)(4)(B).
¶3The appellant attempted to use three different avenues to contest his
removal. First, on March 10, 2020, the appellant amended a pending equal
employment opportunity (EEO) complaint to include the removal decision. Ware
v. Department of Veterans Affairs , MSPB Docket No. CH-1221-20-0344-W-1,
Appeal File (0344 AF), Tab 6 at 86-89. Second, on March 19, 2020, the appellant
filed a complaint with the Office of Special Counsel (OSC), alleging that the
agency had removed him in retaliation for protected whistleblowing. Ware v.
Department of Veterans Affairs , MSPB Docket No. CH-0714-20-0313-I-1, Appeal
File (0313 AF), Tab 8 at 8-9. Third, the appellant filed an appeal directly with
the Board on April 8, 2020. 0313 AF, Tab 1.
¶4In that Board appeal, the administrative judge notified the appellant that his
appeal appeared have been filed outside the 10-day statutory deadline, and she
apprised him of how to prove that the appeal was timely or that the deadline
should be equitably tolled. 0313 AF, Tab 4. Shortly thereafter, the appellant
manifested his intent to withdraw his Board appeal in favor of the other avenues
of relief that he was pursuing. 0313 AF, Tab 12. The administrative judge2
dismissed the appeal as withdrawn in an initial decision that became final when
neither party petitioned for review. 0313 AF, Tab 13, Initial Decision; see
5 C.F.R. § 1201.113. Meanwhile, the processing of the appellant’s EEO and OSC
complaints continued.
¶5On April 16, 2020, OSC closed its investigation into the appellant’s
whistleblower complaint, without taking corrective action. 0344 AF, Tab 5. On
April 23, 2020, the appellant filed an individual right of action (IRA) appeal,
which the Board has adjudicated separately. 0344 AF, Tab 1. Then, on July 21,
2020, the appellant filed the instant appeal and requested a hearing. IAF, Tab 1.
He indicated that he intended to challenge both the merits of his removal and
pursue the discrimination claims that he had made in his EEO complaint. IAF,
Tabs 1, 6. The administrative judge, however, dismissed the appeal as res
judicata or, in the alternative, as untimely filed. IAF, Tab 7 at 7, Initial
Decision (ID).
¶6The appellant has filed a petition for review, disputing the administrative
judge’s analysis. Petition for Review (PFR) File, Tab 1. The agency has
responded to the petition for review, and the appellant has filed a reply to the
agency’s response. PFR File, Tabs 2, 4.
ANALYSIS
¶7This appeal presents a multiplicity of procedural and jurisdictional issues.
However, as set forth below, we have considered them all and find that none
provide a basis to dismiss the appeal on the current record.
Election of Remedies
¶8Depending on his status and the claims that he is raising, there are several
avenues available for a Federal employee to contest his removal. Generally
speaking, however, an employee like the appellant, who is covered under a
collective bargaining agreement, may elect one and only one of these options.
His choice to file first in one forum will preclude him from subsequently3
contesting his removal in a different forum. See generally, 5 U.S.C.
§ 7121(d)-(g). As explained above, the appellant first elected to contest his
removal by amending his formal complaint of discrimination under 29 C.F.R.
§ 1614.302(b). See 29 C.F.R. § 1614.106(d) (concerning amendments to
complaints). The appellant then elected to file a whistleblower complaint with
OSC under 5 U.S.C. § 1214(a)(1)(A). We find that the appellant’s election to file
a mixed-case EEO complaint did not preclude him from subsequently filing an
OSC whistleblower complaint on the same matter.
¶9Under 5 U.S.C. § 7121(d), an employee who alleges that he was subjected
to a prohibited personnel practice under 5 U.S.C.§ 2302(b)(1) must choose
between filing a mixed-case Board appeal, a mixed-case EEO complaint, or a
grievance under negotiated grievance procedures. Kazowski v. Department of the
Air Force, 2023 MSPB 15, ¶ 5 n.1. Under 5 U.S.C. § 7121(g), an employee who
alleges that he was subjected to a prohibited personnel practice under 5 U.S.C.
§ 2302(b)(8) or (9) must choose between filing an appeal to the Board under
5 U.S.C. § 7701, a complaint seeking corrective action from OSC, or a grievance
under the applicable negotiated grievance procedures.2 Id. The statute does not
directly address the situation presented in this case, i.e., where the employee
alleges that he was subjected to prohibited personnel practices under both
5 U.S.C. § 2302(b)(1) and 5 U.S.C. § 2302(b)(8) or (9). However, reading the
statute as a whole, we find that it permits an employee to raise the 2302(b)(1)
claim in a mixed-case complaint of discrimination and the 2302(b)(8) claim
separately in an OSC whistleblower complaint. Specifically, the elections for (b)
(1) claims are addressed in a separate subsection than elections for (b)(8) and (b)
(9) claims. Under the plain language of 5 U.S.C. § 7121(d), the appellant’s
election to contest his removal through an EEO mixed-case complaint precluded
him from subsequently contesting his removal through a grievance or a Board
2 Section 7121(g) applies to all claimed prohibited personnel practices apart from those
covered under 5 U.S.C. § 2302(b)(1). This includes 5 U.S.C. § 2302(b)(8) and (9),
which are provisions implicated in the appellant’s whistleblower complaint.4
appeal. Nothing in that subsection limited his right to contest his removal
through a subsequent OSC complaint. Conversely, under the plain language of
5 U.S.C. § 7121(g), the appellant’s OSC complaint precluded him from
subsequently contesting his removal through a grievance or a Board appeal.
Nothing in that subsection limited his right to contest his removal through an
EEO mixed-case complaint. In other words, when, as here, an employee claims
prohibited personnel practices under both 2302(b)(1) and 2302(b)(8) or (9), the
statute permits him to pursue those claims separately, through the EEO process,
and the OSC process respectively.
¶10That being said, we find that the removal decision letter adequately apprised
the appellant of the election of remedies issues, IAF, Tab 5 at 14-15, and that on
March 10, 2020, he made a valid, binding election to contest his removal through
the EEO mixed-case complaint process.3 Although this election did not preclude
his subsequent OSC complaint, it did preclude his April 8, 2020 Board appeal.
See 5 U.S.C. § 7121(d); 29 C.F.R. § 1614.302(b).
Res Judicata
¶11Res judicata, or claim preclusion, prevents parties from litigating issues that
could have been raised in a prior action. Carson v. Department of Energy ,
398 F.3d 1369, 1375 (Fed. Cir. 2005). It applies if (1) the prior decision was
rendered 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.
¶12In this case, the administrative judge dismissed the instant appeal as res
judicata on the basis that the appellant had voluntarily withdrawn his previous
appeal. ID at 2-3. However, this dismissal did not amount to a “final decision on
the merits.” Because the merits of the appellant’s removal were not examined in
that appeal, the doctrine of res judicata does not apply . See Williams v.
3 The appellant’s March 19, 2020 OSC complaint would likewise have precluded a
direct Board appeal. See 5 U.S.C. § 7121(g); 5 C.F.R. § 1209.2(d).5
Department of Health and Human Services , 112 M.S.P.R. 628, ¶ 9 (2009) (finding
the doctrine of res judicata inapplicable because the appellant’s original appeal
was dismissed as settled without examining the merits of the removal action);
Brown v. Department of the Navy , 102 M.S.P.R. 377, ¶ 12 (finding res judicata
inapplicable because there had not been an examination of the merits of the
agency’s action after the appeal was withdrawn as part of a settlement), review
dismissed, 199 F. App’x. 949 (Fed. Cir. 2006).
Timeliness
¶13It is undisputed that the appellant did not file his removal appeal within
10 business days of the date of his removal, as required for an appeal to be timely
under 38 U.S.C. § 714(c)(4)(B). Therefore, the administrative judge found that
the appeal was untimely. ID at 4. However, after the initial decision was issued,
the Board clarified that the 10-day deadline of 38 U.S.C. § 714(c)(4)(B) does not
apply to cases like this one, in which the appellant elected to contest his removal
through the mixed-case complaint process. Wilson v. Department of Veterans
Affairs, 2022 MSPB 7, ¶¶ 15-25. Rather, when an employee elects to contest his
section 714 removal through a mixed-case complaint, the procedures and time
limits of 5 U.S.C. § 7702(e)(2), 5 C.F.R. § 1201.154(b)(2), and 29 C.F.R.
§ 1614.302(d) apply. Id., ¶ 25.
¶14Under 5 C.F.R. § 1201.154(b)(2), a Board appeal must be filed within
30 days after the appellant receives the agency resolution or final agency decision
on the discrimination issue, or if the agency has not resolved the matter or issued
a final decision within 120 days, the appellant may appeal directly to the Board.
See Gray v. U.S. Postal Service , 93 M.S.P.R. 161, ¶ 10 (2002). In this case, the
record is not sufficiently developed for the Board to make a determination on the
timeliness issue. Specifically, there is no evidence of whether or when the agency
issued a final decision on the appellant’s complaint. If the agency issued such a
decision, depending on the date that the agency issued it and when the appellant6
received the decision, the appeal may be untimely. If the agency did not issue a
final decision, then the appeal was prematurely filed, i.e., less than 120 days after
the appellant amended his EEO complaint to include his removal. See Ayer v.
Department of Veterans Affairs , 54 M.S.P.R. 638, 640 (1992). Nevertheless,
under this latter scenario, the appeal would now be ripe for adjudication because
the 120-day mark has passed during the pendency of the appeal. See id.
¶15Prior to the initial decision, the appellant did not receive specific notice of
the particular timeliness issues involved in his appeal. See Bell v. Department of
Homeland Security , 95 M.S.P.R. 580, ¶¶ 8-9 (2004). Therefore, the appellant will
be afforded the opportunity on remand to prove that his appeal was timely filed
under 5 C.F.R. § 1201.154(b).
Withdrawal
¶16 Withdrawal of an appeal is an act of finality, and in the absence of unusual
circumstances such as misinformation or new and material evidence, the Board
will not reinstate an appeal once it has been withdrawn. Scarboro v. Department
of the Navy, 55 M.S.P.R. 494, 496 (1992). Furthermore, the voluntary withdrawal
of one appeal generally precludes an appellant from filing a subsequent appeal
based on the same cause of action. See Lapedis v. Department of Health and
Human Services , 47 M.S.P.R. 337, 342, aff’d, 949 F.2d 403 (Fed. Cir. 1991)
(Table). However, as explained above, the appellant’s previous appeal of April 8,
2020, was not filed pursuant to a proper election. Supra ¶ 10. The Board has
found that the withdrawal of such an appeal does not prevent an appellant from
filing a subsequent Board appeal of the same action under the provisions of
5 U.S.C. § 7702. Dawson v. U.S. Postal Service , 45 M.S.P.R. 194, 196-97
(1990). In other words, we find that the appellant’s withdrawal of his previous
appeal, which was not properly before the Board in the first place, has no effect
on the instant appeal, which is properly before the Board.7
ORDER
¶17For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. On remand, the
administrative judge shall notify the appellant of the particular timeliness issues
in his case and allow the parties to file evidence and argument on the issue. If the
administrative judge finds that the appeal is timely, or that there is good cause for
any delay, the administrative judge shall adjudicate the appeal on the merits.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Ware_Damien_L_CH-0752-20-0473-I-1_Remand_Order.pdf | 2024-11-18 | DAMIEN LAMONT WARE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0752-20-0473-I-1, November 18, 2024 | CH-0752-20-0473-I-1 | NP |
357 | https://www.mspb.gov/decisions/nonprecedential/Demartino_Michael_E_NY-0841-21-0083-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL E. DEMARTINO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-0841-21-0083-I-1
DATE: November 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael E. Demartino , Staten Island, New York, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) concluding that his Federal Employees’ Retirement System (FERS)
annuity supplement was correctly computed. On petition for review, the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appellant restates his argument that OPM should have calculated his FERS
annuity supplement payment amount based on the total career earnings figures
identified in detailed earnings reports from the Social Security Administration
and on Standard Form (SF) 50 and SF-3100 documents he submitted to OPM,
instead of based on the contribution figures provided to OPM by the appellant’s
former employing agencies.2 Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.3
2 We note that in the initial decision, the administrative judge identified the amount the
appellant alleged he was owed for his FERS supplemental annuity payment was
“$1,288/month, which is equal to 62 ½ % of $2,077 (the Social Security
Administration’s (SSA) computation of his income at the age of 62).” Initial Appeal
File (IAF), Tab 17, Initial Decision (ID) at 11 (citing IAF, Tab 15, Hearing Compact
Disc (testimony of appellant’s representative); IAF, Tab 14). However, this appears to
be an inadvertent typographical error, as 62 ½ % of $2,077 is $1,2 9 8. The appellant
also identifies this calculation and the correct resulting amount in his correspondences
with OPM. IAF, Tab 9 at 125; see id. at 129 (identifying $2,077 as the amount of the
appellant’s estimated SSA benefits at retirement age). Nevertheless, this typographical
error is inadvertent, and this misstatement was harmless and did not affect the outcome
of the decision in any way. See Panter v. Department of the Air Force , 22 M.S.P.R.
281, 282 (1984) (finding that an adjudicatory error that was not prejudicial to a party’s
substantive rights provided no basis for reversal of an initial decision).
3 With respect to the differing FERS annuity supplement payment figures identified by
the appellant, OPM maintained below that the final monthly FERS annuity supplement
amount owed to the appellant is $1,191, and not the $1,180, $1,182, and $1,192 figures
identified in various OPM letters. See IAF, Tab 9 at 7. We take this opportunity to2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
identify and clarify the source of the apparent confusion. It appears that OPM initially
determined that the appellant’s monthly FERS annuity supplement amount was $1,180,
but on July 19, 2019, OPM acknowledged that the correct figure was $1,182 and
retroactively repaid the appellant the underpayment difference. IAF, Tab 9 at 214.
Following a routine post-court order review of the appellant’s case, OPM issued a letter
dated December 23, 2019, stating that the appellant’s 1996 FERS contributions should
reflect a full year of contributions and that the appellant’s monthly annuity supplement
amount was corrected to $1,192, and the appellant was retroactively paid the difference.
IAF, Tab 9 at 171. However, the $1,192 figure in that letter appears to be a
typographical error by OPM, because in a letter dated that same day, OPM identified
the appellant’s corrected FERS annuity supplement amount as $1,191. See id. at 170.
Further, the $1,180 figure identified as the prior FERS annuity supplement amount also
appears to be a typographical error, as it represented the annuity supplement payment
amount prior to OPM’s July 19, 2019 letter acknowledging that the correct amount was
$1,182. Id. at 170-71; see id. at 214. This also comports with the amount of the
overpayment OPM issued, since $1,191 (the correct, updated annuity amount) minus
$1,182 (the correct, prior annuity amount) equals $9 per month, or $162 over the course
of the 18-month adjustment period identified in OPM’s December 23, 2019 letter. See
IAF, Tab 9 at 171.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Demartino_Michael_E_NY-0841-21-0083-I-1_Final_Order.pdf | 2024-11-18 | MICHAEL E. DEMARTINO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0841-21-0083-I-1, November 18, 2024 | NY-0841-21-0083-I-1 | NP |
358 | https://www.mspb.gov/decisions/nonprecedential/Howell_Mona_D_CH-0845-21-0316-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MONA DERICO HOWELL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0845-21-0316-I-1
DATE: November 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mona Derico Howell , Hobart, Indiana, pro se.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction because the Office of Personnel
Management (OPM) had rescinded its reconsideration decision regarding an
overpayment of retirement benefits. Generally, we grant petitions such as this
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
2 If OPM completely rescinds a reconsideration decision, the rescission divests the
Board of jurisdiction over the appeal in which the reconsideration decision is at issue,
and the appeal must be dismissed. Moore v. Office of Personnel Management ,
114 M.S.P.R. 549, ¶ 4 (2010); see Frank v. Office of Personnel Management ,
113 M.S.P.R. 164, ¶ 7 (2010). Because OPM rescinded the reconsideration decision at
issue, the Board does not have jurisdiction over this appeal. Initial Appeal File, Tab 10
at 4. However, upon receipt of a new reconsideration decision affecting her rights and
interests under the Federal Employees’ Retirement System, the appellant may file
another appeal with the appropriate regional office consistent with the Board’s
regulations. 5 U.S.C. § 8461(e)(1); 5 C.F.R. § 841.308.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case,
you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Howell_Mona_D_CH-0845-21-0316-I-1_Final_Order.pdf | 2024-11-18 | MONA DERICO HOWELL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0845-21-0316-I-1, November 18, 2024 | CH-0845-21-0316-I-1 | NP |
359 | https://www.mspb.gov/decisions/nonprecedential/Grady_Ellen_T_DC-831M-21-0277-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELLEN T. GRADY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-831M-21-0277-I-1
DATE: November 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Allan E. Grady , Fredericksburg, Virginia, for the appellant.
Karla W. Yeakle , Washington,, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the agency’s reconsideration decision finding that the appellant had been
overpaid $6,860.00 in annuity supplement benefits under the Federal Employees’
Retirement System. On petition for review, the agency argues that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative judge erred in finding that it failed to prove the existence and
amount of the overpayment by preponderant evidence. Petition for Review File,
Tab 1 at 4-12. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Grady_Ellen_T_DC-831M-21-0277-I-1_Final_Order.pdf | 2024-11-18 | ELLEN T. GRADY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-831M-21-0277-I-1, November 18, 2024 | DC-831M-21-0277-I-1 | NP |
360 | https://www.mspb.gov/decisions/nonprecedential/Kelly_Kristopher_D_AT-0752-15-0064-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KRISTOPHER D. KELLY,
Appellant,
v.
TENNESSEE VALLEY AUTHORITY,
Agency.DOCKET NUMBERS
AT-0752-15-0064-X-1
AT-0752-15-0064-C-1
DATE: November 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Morton , Esquire, and Pat Kelly , Knoxville, Tennessee, for the
appellant.
Courteney M. Barnes-Anderson , and Kathleen Keough Griebel , Knoxville,
Tennessee, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The agency filed a petition for review of the compliance initial decision in
this appeal. We denied the petition and ordered the agency to submit evidence of
compliance. For the reasons set forth below, we DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
¶2After the Board’s decision to deny the agency petition for review of the
compliance initial decision, the parties submitted a document entitled
“SETTLEMENT AGREEMENT AND RELEASE,” which was signed by the
parties between September 20 and 25, 2024. Kelly v. Tennessee Valley Authority ,
MSPB Docket No. AT-0752-15-0064-C-1, Compliance Petition for Review
(CPFR) File, Tab 26; Kelly v. Tennessee Valley Authority , MSPB Docket No. AT-
0752-15-0064-X-1, Compliance Referral File (CRF), Tab 5. The document
provides, among other things, for the dismissal of this appeal.2 CRF, Tab 5 at 7.
¶3Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ).
¶4Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. CRF, Tab 5 at 7. Accordingly, we find that
dismissing the appeal with prejudice to refiling (i.e., the parties normally may not
refile this appeal) is appropriate under these circumstances. In addition, we find
that the agreement is lawful on its face and freely entered into, and we accept the
settlement agreement into the record for enforcement purposes.
2 Inter alia, the settlement agreement states as follows: “Appellant agrees to withdraw
any and all pending MSPB appeals, claims, or concerns with prejudice, and does so by
signing this Agreement, including but not limited to MSPB Docket No. AT-00752-15-
0064-I-1, P-1, A-1, B-1, C-1, and X-1.” CRF, Tab 5 at 7 (typo in original). We
recognize that some of the referenced docket numbers implicate matters that were
already closed, rather than pending. We do not construe the settlement agreement’s
references to those matters as a request to reopen them. We instead construe the
settlement agreement as intending to bring a close to those matters that were still
pending, i.e., Docket Nos. AT-0752-15-0064-C-1 and AT-0752-15-0064-X-1.2
¶5This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a courtappointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Kelly_Kristopher_D_AT-0752-15-0064-X-1_Final_Order.pdf | 2024-11-18 | KRISTOPHER D. KELLY v. TENNESSEE VALLEY AUTHORITY, MSPB Docket No. AT-, November 18, 2024 | AT- | NP |
361 | https://www.mspb.gov/decisions/nonprecedential/MacLean_Robert_J_DC-1221-20-0235-W-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT J. MACLEAN,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-1221-20-0235-W-2
DATE: November 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David A. Karman , Esquire, Gary M. Gilbert , Esquire, and
Kevin L. Owen , Esquire, Silver Spring, Maryland, for the appellant.
Thomas Devine , Esquire, Washington, D.C., for the appellant.
Agatha Swick , Esquire, and Steven Lewengrub , Esquire, Atlanta, Georgia,
for the agency.
Daniel Collado , White Plains, New York, for the agency.
Kelleen O’Fallon , Philadelphia, Pennsylvania, for the agency.
Michael W. Gaches , Esquire, and Christina Bui , Esquire,
Springfield, Virginia, for the agency.
Sarah I. Grafton , Esquire, Arlington, Virginia, for the agency.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
F. Douglas Hartnett , Esquire, Washington, D.C., for amicus curiae,
Government Accountability Project.
Ned Miltenberg , Bethesda, Maryland, for amicus curiae, Government
Accountability Project.
Paula Dinerstein , Silver Spring, Maryland, for amicus curiae, Public
Employees for Environmental Responsibility.
Scott Amey , Washington, D.C., for amicus curiae, Project on Government
Oversight.
Frederic Whitehurst , Esquire, Bethel, North Carolina, for amicus curiae,
Flyers Rights.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.2
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
denied corrective action in his individual right of action (IRA) appeal. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
2 The agency filed a motion seeking Member Kerner’s recusal based on his involvement
in the appellant’s case while he was the Special Counsel. Petition for Review File,
Tab 29. Because Member Kerner has recused himself, the agency’s motion is moot.2
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review. We AFFIRM the administrative judge’s finding that the
Board lacks jurisdiction over one of the appellant’s purported disclosures, and we
VACATE her alternative finding regarding that disclosure. We MODIFY the
initial decision to FIND that the third factor enumerated in Carr v. Social Security
Administration, 185 F.3d 1318 (Fed. Cir. 1999) (the Carr factors), does not weigh
in the agency’s favor and otherwise AFFIRM the administrative judge’s
conclusion that the agency proved by clear and convincing evidence that it would
have taken the same personnel actions in the absence of the appellant’s protected
whistleblowing. We AFFIRM the denial of corrective action in this IRA appeal.
¶2To start, we address the appellant’s August 13, 2024 motion to add
purported new evidence to the record, filed approximately 15 months after his
petition for review. MacLean v. Department of Homeland Security , MSPB
Docket No. DC-1221-20-0235-W-2, Petition for Review (PFR) File, Tab 23. The
agency has opposed his motion. PFR File, Tabs 26, 32. The appellant asserts in
his motion that, “after the issuance of the initial decision,” he learned of facts that
led him to reasonably question the impartiality of the administrative judge. PFR
File, Tab 23 at 4, 6; see 28 U.S.C. § 455(a). Pursuant to the Board’s regulations
at 5 C.F.R. § 1201.114(a), (k), once the record closes on review, no new evidence
will be accepted unless it is new and material, as defined by 5 C.F.R.
§ 1201.115(d), and the party submitting it shows that the evidence was not readily
available before the record closed. However, the appellant has been asserting the
same or similar facts regarding the impartiality of the administrative judge, based
on her employment with the Department of Homeland Security (DHS)3
approximately 20 years ago, in another appeal pending before the Board since as
early as April 2023, before the record on petition for review closed. MacLean v.
Department of Homeland Security , MSPB Docket No. DC-1221-22-0590-W-3,
Appeal File (0590 W-3 AF), Tabs 3, 14. The appellant has not explained why he
did not include this argument or evidence in his petition for review. We therefore
deny the appellant’s motion and all related motions. PFR File, Tabs 23, 26, 28.
¶3Notwithstanding the Board’s denial of the appellant’s August 13 motion, we
acknowledge that similar arguments about the administrative judge were made by
amici in this case. PFR File, Tab 17 at 19-21, Tab 18 at 9-11. Although an
amicus is not a party to the proceeding, 5 C.F.R. § 1201.34(e)(5), we exercise our
discretion to address these arguments. The amici state, without evidentiary
support, that the administrative judge was a “Deputy Chief” with DHS’s “[Federal
Air Marshal Services] headquarters” between 2003 and 2005. PFR File, Tab 17
at 19, Tab 18 at 9. One amici states, without citation, that the administrative
judge’s former office recommended proposing the appellant’s removal in 2005.
PFR File, Tab 18 at 9. The agency has responded to the amicus briefs, disputing
the administrative judge’s former job title and asserting that there is no evidence
that the administrative judge ever worked for the component of DHS that
employed the appellant,3 the Transportation Security Agency, knew any of the
witnesses in this litigation, or represented a party in any litigation against the
appellant.4 PFR File, Tab 20 at 14 & n.2, 15. In the absence of any evidence that
the administrative judge was involved in any prior litigation involving the
appellant, much less the personnel actions at issue in this appeal, which occurred
in or after 2016, we find that her employment with the agency approximately
20 years ago would not cause a reasonable person to question her impartiality.
3 DHS employs over 260,000 employees. Department of Homeland Security, About
DHS, https://www.dhs.gov/about-dhs (last visited Nov. 12, 2024).
4 Amici’s assertion that the administrative judge was involved in the litigation
concerning the appellant’s 2006 removal while previously employed in another capacity
at the Board is similarly without evidentiary support. PFR File, Tab 17 at 20. 4
See 28 U.S.C. § 445(a), (b)(3) (explaining that a presiding official should
disqualify herself, among other things, when she has served in Government
employment and, in such capacity, participated as counsel, adviser, or material
witness concerning the proceeding or expressed an opinion concerning the merits
of the particular case or controversy).
¶4We next address another motion filed by the appellant on August 29, 2024,
wherein he seeks to add purported new evidence to the record. PFR File, Tab 30.
The agency has opposed the appellant’s motion. PFR File, Tab 32. Like the
August 13 motion, the appellant’s August 29 motion fails to identify the date he
learned of the purported new evidence, stating only that he learned of it “after the
conclusion of the hearing in his matter.” Id. at 4. The motion therefore fails to
meet the Board’s regulations set forth at 5 C.F.R. §§ 1201.114-1201.115, which
requires the appellant to show that the evidence was unavailable before the record
closed on petition for review. Accordingly, we deny the motion.
¶5We next turn to the appellant’s assertions on review. He contends that the
administrative judge erred in the following ways: (1) finding that the Board lacks
jurisdiction over one of his purported protected disclosures; (2) finding that the
investigation into the appellant was not a personnel action under 5 U.S.C.
§ 2302(a) and failing to properly consider evidence that the investigation was
pretext for retaliation; (3) finding that the agency proved by clear and convincing
evidence that it would have removed the appellant in the absence of his protected
whistleblowing; (4) denying the appellant’s motion to compel discovery and his
request to depose a witness; (5) denying the appellant’s request for a rebuttal
witness to testify at the hearing; and (6) denying the appellant’s request for
written closing briefs after the hearing.
¶6First, we agree with the administrative judge that the Board lacks
jurisdiction over the appellant’s purported disclosure made in a July 2, 2017
Facebook post. MacLean v. Department of Homeland Security , MSPB Docket
No. DC-1221-20-0235-W-1, Initial Appeal File (IAF), Tab 29, Subtab 4f at 283,5
Tab 31 at 12-13; MacLean v. Department of Homeland Security , MSPB Docket
No. DC-1221-20-0235-W-2, Appeal File (W-2 AF), Tab 102, Redacted Initial
Decision (ID) at 78. The appellant has not made a nonfrivolous allegation that his
Facebook post disclosed information that he reasonably believed evidenced any
category of wrongdoing covered by 5 U.S.C. § 2302(b)(8).5 Contrary to the
appellant’s later characterization of the communication as disclosing a quid pro
quo relationship, PFR File, Tab 7 at 54-58, we find that nothing in the text of the
post or the emojis that follow reference, either explicitly or implicitly, a quid pro
quo relationship, IAF, Tab 29, Subtab 4f at 283. The appellant asserts on review
that the administrative judge erred in finding that the purported disclosure does
not qualify for protection because it was based on unreliable rumors. PFR File,
Tab 7 at 58. To the extent the administrative judge held that the appellant did not
have a reasonable belief that the subject of the Facebook post engaged in sexual
conduct and received a quid pro quo benefit of employment because it was
unsupported by anything more than rumors and innuendo, ID at 77, we vacate that
finding. The appellant may have had a reasonable belief concerning such an
allegation. However, the post did not disclose information that a disinterested
observer could reasonably conclude evidenced such a relationship or type of
wrongdoing covered by 5 U.S.C. § 2302(b)(8), and it is therefore not protected.
See Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 6 (stating that the
proper test for determining whether an employee had a reasonable belief that his
disclosures revealed one of the categories of wrongdoing listed under 5 U.S.C.
§ 2302(b)(8) is whether a disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the employee could reasonably
conclude that he disclosed information evidencing such wrongdoing).
¶7Concerning this disclosure, the appellant’s other arguments on review
challenge an alternative finding by the administrative judge that, even if a
5 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s); see also Hessami v. Merit Systems Protection Board ,
979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020). 6
disclosure of information is protected, an employee’s inappropriate conduct
surrounding such a disclosure is not. ID at 78-79. For this proposition, she
discussed Greenspan v. Department of Veterans Affairs , 464 F.3d 1297, 1305
(Fed. Cir. 2006). In Greenspan, the U.S. Court of Appeals for the Federal Circuit
analyzed whether the agency proved by clear and convincing evidence that it
would have taken the same personnel action in the absence of protected
whistleblowing. Id. Because we find that the appellant did not make a
nonfrivolous allegation that he made a protected disclosure, we need not
determine whether the agency proved by clear and convincing evidence that it
would have taken the same personnel action in the absence of protected
whistleblowing, and we therefore vacate any such alternative finding. See Clarke
v. Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10 (2014) (vacating
an administrative judge’s alternative finding that an agency proved by clear and
convincing evidence that it would have taken the same personnel action in the
absence of any protected disclosure when the appellant failed to prove her prima
facie case of whistleblower reprisal), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015).
Other than the arguments discussed here, the appellant has made no other
challenges to the administrative judge’s jurisdictional findings.6
¶8Second, we address the appellant’s arguments on review regarding the
purported retaliatory investigation. PFR File, Tab 7 at 23-26. The appellant
asserts that the administrative judge erred by concluding that the investigation
referral was not retaliatory. Id. at 23. We have construed his argument two ways:
(1) as a challenge to the administrative judge’s conclusion that the investigation
was not a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii), and (2) as an
argument that the administrative judge failed to properly consider that the
6 One of the amicus briefs in this appeal challenges another of the administrative
judge’s jurisdictional findings concerning the alleged concealment of a crime. PFR
File, Tab 17 at 11-14. Because an amicus is not a party to a proceeding,
5 C.F.R. § 1201.34(e)(5), and the appellant, who is represented by counsel, has chosen
not to pursue this argument on review, the Board declines to disturb this jurisdictional
finding, IAF, Tab 31 at 18-19.7
investigation could have been pretext for retaliation under the precedent set forth
in Russell v. Department of Justice , 76 M.S.P.R. 317 (1997).
¶9An investigation into an allegation of misconduct is not a personnel action
per se. Spivey v. Department of Justice , 2022 MSPB 24, ¶ 10; see Sistek v.
Department of Veterans Affairs , 955 F.3d 948, 955 (Fed. Cir. 2020).7 Rather,
agency investigations come within the definition of a personnel action only if
they result in a significant change in job duties, responsibilities, or working
conditions or have effects that otherwise fit within one of the items listed under
the definition of a personnel action found at 5 U.S.C. § 2302(a)(2)(A). Spivey,
2022 MSPB 24, ¶ 10 (quotations omitted). We agree with the administrative
judge that the appellant did not prove that the investigation impacted his duties,
responsibilities, or working conditions under 5 U.S.C. § 2302(a)(2)(xii), ID
at 109-13, and he has provided no basis to disturb this finding on review.
Because the appellant did not prove that the investigation was a personnel action,
we disagree with his suggestion on review that the administrative judge should
have made a finding on contributing factor or considered the Carr factors with
respect to the investigation. PFR File, Tab 7 at 23-26.
¶10We next consider the appellant’s assertions concerning irregularities in the
investigation, which we construe as a claim that the investigation was tainted with
retaliatory animus. Id. at 26-32. In Russell, 76 M.S.P.R. at 328, the Board found
that the individuals who reported the appellant’s misconduct—his managers
against whom he had made protected disclosures—may have used the misconduct
investigation as a means of furthering a retaliatory end. In other words, the
investigation was pretext for retaliation. Russell, 76 M.S.P.R. at 328 . To the
extent that the appellant argues that the Board should overturn the agency’s
7 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit. However, pursuant to the All Circuit Review Act, Pub. L.
No. 115-195, appellants may file petitions for judicial review of Board decisions in
whistleblower reprisal cases before any court of appeals of competent jurisdiction. See
5 U.S.C. § 7703(b)(1)(B). Therefore, we must consider the issues with the view that the
appellant may seek review of this decision before any appropriate court of appeal.8
removal action because the improper conduct, for which he was investigated and
eventually removed, would not have come to the attention of the agency but for
J.L., who had an improper motive in reporting his conduct, we find his arguments
unavailing. PFR File, Tab 7 at 25-26 & n.6. The appellant has not alleged that
J.L. was the subject of his protected whistleblowing, nor was she an agency
official responsible for recommending discipline. ID at 15 (identifying J.L. as the
appellant’s peer and explaining that she was implicated in one of the appellant’s
disclosures over which the administrative judge did not find jurisdiction). Under
these circumstances, we need not consider, as the Board did in Russell, whether
the investigation was tainted with retaliatory animus, nor must we consider the
retaliatory motive of J.L. See Carr, 185 F.3d at 1326 (declining to consider the
alleged retaliatory motive of the employees who complained about the
petitioner’s misconduct because they were not agency officials responsible for
recommending discipline); cf. Mangano v. Department of Veterans Affairs ,
109 M.S.P.R. 658, ¶ 33 (2008) (“Because Dr. Cason was involved in the agency’s
decision to terminate the appellant and was the subject of the appellant’s
whistleblowing, the appellant was entitled to explore the strength of any motive
Dr. Cason might have had to retaliate against the appellant for his
whistleblowing.”). In any event, the administrative judge did not ignore the
appellant’s arguments concerning purported irregularities in the investigation.
Despite the appellant’s challenges on review, PFR File, Tab 7 at 26-32, we find
no reason to disturb the administrative judge’s well-reasoned factual finding that
the investigation was not unreliable for the reasons alleged by the appellant, ID
at 47-54, 145-51.
¶11Third, we consider the appellant’s arguments concerning the administrative
judge’s weighing of the Carr factors. Because the appellant has limited these
arguments to his removal claim only, we do not discuss her Carr factor analysis
regarding the other personnel actions, and we affirm her findings that the agency
proved by clear and convincing evidence that it would have taken those actions in9
the absence of the appellant’s protected whistleblowing. ID at 116-44. As set
forth below, we supplement the administrative judge’s findings regarding
Carr factor 1, vacate her finding regarding Carr factor 3, and agree with her
conclusion that the agency proved by clear and convincing evidence that it would
have removed the appellant in the absence of his protected whistleblowing.
¶12We agree with the administrative judge that Carr factor 1 weighs strongly
in favor of the agency because it has presented robust evidence concerning the
three charges supporting removal. ID at 173-209. We reject the appellant’s
assertion on review that the communications comprising specifications 1 and 2 of
charge 1, inappropriate comments, were not inappropriate because they did not
identify an agency employee by name. PFR File, Tab 7 at 33. The agency did not
charge the appellant with referencing any employee by name. IAF, Tab 29,
Subtab 4a at 3. We agree with the administrative judge and agency management
that the communications identified in specifications 1 and 2 specifically stated
that they referred to a colleague and would have been inappropriate regardless of
whom they were about. ID at 22, 177. We also reject the appellant’s assertion
that discussing a coworker’s alleged affair on numerous occasions, as described in
specification 5, was not inappropriate. PFR File, Tab 7 at 36. Although the
appellant defends that other employees also discussed the alleged affair, the
record reflects that the appellant brought it up repeatedly to his teammates and
external stakeholders, and there is no evidence that others discussed the purported
affair with the same frequency. ID at 185. Witnesses described the appellant as
being “hung up” on the affair and stated that the appellant repeated the story
several times despite being asked by the witnesses to stop talking about it. IAF,
Tab 29, Subtab 4f at 367, 373. The appellant was verbally advised by
management to stop talking negatively about other supervisors and other Federal
Air Marshal (FAM) employees in or around February 2017.8 Id. at 147-48. Many
8 The appellant was also counseled in January 2016 to “attend to non-verbal cues when
communicating with others, including his fellow [ ] team members.” IAF, Tab 29,
Subtab 4f at 354. The appellant argues on review that the subject of the counseling was10
employees reported feeling uncomfortable working with the appellant and stated
that his negativity did not support a harmonious work environment. Id. at 149,
374. A supervisor reported that the appellant’s team did not function due to
constant conflict between the appellant and others on the team. Id. at 150.
Witnesses reported feeling intimidation and fear of harassment and retaliation
from the appellant. Id. The deciding official testified that, although criticizing
other employees is not always misconduct, that changes when it disrupts
operations. ID at 188. We agree. Both read in isolation and in the context of the
appellant’s behavior over the preceding several years, we agree with the
administrative judge that the specifications supporting charge 1 constitute
inappropriate comments, and we find the appellant’s assertions on review to be
unpersuasive. ID at 174-87.
¶13Regarding charge 2, misconduct during an investigation, we agree with the
administrative judge’s findings as to specification 1, and we supplement her
analysis as to specifications 2 through 4. ID at 190-95. Specification 2 alleges
that, following his September 20, 2017 investigative interview and signature to a
nondisclosure agreement prohibiting him from discussing the investigation, IAF,
Tab 29, Subtab 4h at 1, the appellant contacted retired FAMs S.S. and S.R. and
Supervisory FAM S.M. about the investigation, id., Subtab 4a at 7. The appellant
admitted that he discussed the investigation with S.S. and S.R.; specifically, that
he told them he saw J.L.’s name on the visitor’s log where he reported for his
offsite interview. Id., Subtab 4f at 405. The appellant’s assertion that he
contacted these individuals prior to September 20, 2017, and prior to signing the
nondisclosure agreement, PFR File, Tab 7 at 39-40, is unpersuasive and is
not inappropriate comments and, therefore, the administrative judge erred in finding
that he was previously counseled for such conduct. PFR File, Tab 7 at 45. We
disagree. Regardless of whether this counseling addressed any specific inappropriate
comments, it cautioned the appellant against the types of behavior that he continued to
engage in after January 2016. Team members averred that the appellant repeated
rumors and often made remarks that they perceived to be inappropriate despite reporting
the appellant’s behavior to management and asking him to stop. IAF, Tab 29, Subtab 4f
at 358-59, 367, 373.11
unsupported by statements he made during the investigation, IAF, Tab 29,
Subtab 4f at 405. The appellant did not learn that J.L.’s name was on the visitor’s
log until September 20, 2017, a topic that he admitted discussing with witnesses.
Id. Moreover, the appellant did not dispute in his written reply to the proposed
removal that he provided information about the investigation to S.S., S.R., and
S.M. Id., Subtab 4c at 5-6, 48-50. Rather, he defended his discussion of the
investigation as “communicat[ing] with witnesses to advance his defense.”9 Id.
at 6. For these reasons, in addition to those set forth in the initial decision, we
find that the agency has presented strong evidence in support of specification 2.
ID at 193-95. Specification 3 alleges that, after the appellant’s investigative
interview, he told another FAM, C.K., that the agency’s Office of Inspection
(OOI) was “coming after him.” IAF, Tab 29, Subtab 4a at 7. This specification is
supported by C.K.’s sworn statement.10 Id., Subtab 4f at 310-11. Specification 4
alleges that, after the OOI interview, the appellant contacted FAM D.M. and told
him that OOI wanted the appellant to “rat” D.M. out and that OOI was “targeting”
D.M. as a subject or witness of the investigation. Id., Subtab 4a at 7. This
specification is supported by D.M.’s sworn statement. Id., Subtab 4f at 321.
¶14Regarding specifications 5 and 6 of charge 2, the administrative judge found
that the agency did not have strong evidence to support the specifications. ID
at 195-99. These specifications therefore weigh against the agency in meeting its
clear and convincing burden. On review, the appellant asserts that the agency
was in possession of evidence that undercut specifications 5 and 6 but did not
provide it to the deciding official and that this demonstrates that the deciding
official was predisposed to sustaining the charges despite a lack of evidence to
9 The record reflects that the appellant discussed the visitor’s log and the OOI
investigation with at least one additional employee who is not identified in the
specifications. IAF, Tab 29, Subtab 4f at 365-67.
10 C.K. also alleges in his statement that, after the appellant’s initial contact with him
on or around September 20, 2017, the appellant sent C.K. “intimidating messages”
advising him to hire an attorney. IAF, Tab 29, Subtab 4f at 311.12
support them. PFR File, Tab 7 at 42-43. We disagree. The appellant could have
disputed these specifications in his lengthy response to the notice of proposed
removal, but he did not. ID at 196, 198. The deciding official testified that, in
sustaining the specifications, he relied, in part, on the appellant’s failure to
specifically deny them. ID at 196. However, the deciding official also pointed to
at least some evidence in the record that, at the time, he believed supported the
allegations. ID at 198. We therefore disagree with the appellant’s assertion that
the deciding official was predisposed to sustaining the charges regardless of the
support for those charges. See Chambers v. Department of the Interior ,
116 M.S.P.R. 17, ¶ 30 (2011) (explaining that, when examining the strength of the
agency’s evidence, the Board will look at the evidence the agency had before it
when it took the allegedly retaliatory action; however, if an agency fails to
investigate a charge sufficiently before bringing an action, such a failure might
indicate an improper motive). In short, although we disagree with the appellant’s
assertion that the circumstances surrounding specifications 5 and 6 demonstrate
improper motive by the deciding official, for the reasons set forth above, we
acknowledge that the lack of strong evidence in support of these specifications
weighs against the agency and does not assist it in carrying its burden of proof.
¶15Regarding charge 3, misuse of Government equipment, the appellant has
provided no basis to disturb the administrative judge’s well-reasoned credibility
findings and her conclusion that it was more likely than not that the appellant
engaged in the charged conduct. ID at 199-201; see Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding that the Board must defer
to an administrative judge’s credibility determinations when they are based,
explicitly or implicitly, on observing the demeanor of witnesses testifying at the
hearing, and the Board may overturn such determinations only when it has
sufficiently sound reasons for doing so). In sum, we agree with the administrative
judge that the agency presented strong evidence in support of its three charges
despite the absence of strong evidence to support two specifications. See Ray v.13
Department of the Army , 97 M.S.P.R. 101, ¶ 28 (2004) (finding that the agency
had very strong evidence to support its charge despite the administrative judge’s
failure to sustain some of the specifications), aff’d, 176 F. App’x 110 (Fed. Cir.
2006). This factor, therefore, weighs strongly in favor of the agency.
¶16Regarding Carr factor 2, the agency’s motive to retaliate, the administrative
judge considered that the proposing and deciding officials may have had
professional retaliatory motives based on the appellant’s disclosures, litigation,
and Congressional testimony. ID at 209-12. She agreed with the appellant that
his protected whistleblowing was widely known and that he provided evidence
and argument about it during the OOI investigation and in his response to the
proposed removal. ID at 212. The appellant argues that the administrative judge
undervalued the intensity of the agency’s motive in this regard and asserts that the
agency was “obsessed” with removing him. PFR File, Tab 7 at 46. We find that
these claims are unsupported by the record. To the contrary, the record reflects
that numerous peers complained about the appellant’s conduct and
communications and that the agency investigated those complaints as appropriate.
E.g., IAF, Tab 29, Subtab 4e at 802-04, Subtab 4f at 22-24, 147-48, 163-79. The
appellant’s contention that the agency subjected him to heightened scrutiny is also
unsupported by the record. PFR File, Tab 7 at 60 -61. We disagree, factually, that
the appellant was subjected to heightened scrutiny and, to the extent the agency
treated him differently in certain ways, we agree with the administrative judge,
for the reasons set forth in the initial decision, that it was not based on retaliatory
animus. ID at 147-49.
¶17In any event, institutional or professional retaliatory motive is not the only
relevant consideration under Carr factor 2. The administrative judge found no
evidence that the proposing or deciding official had a personal motive to retaliate,
and the appellant has provided no reason to disturb this finding. ID at 212. She
found that, although the deciding official had at least some limited knowledge of
the appellant’s disclosures, none of the disclosures personally implicated either14
the proposing or deciding officials and, further, there was no evidence that the
deciding official had a relationship with anyone who was implicated in the
appellant’s disclosures. ID at 210-12. The appellant asserts on review that the
administrative judge failed to consider J.L.’s retaliatory motive in reporting his
misconduct that eventually led to his removal. PFR File, Tab 7 at 25-26, 63. As
set forth above, because J.L. was not an agency official responsible for
recommending discipline, the Board need not consider J.L.’s retaliatory motive.
See Carr, 185 F.3d at 1326. In any event, J.L. was not the subject of the
whistleblower disclosures at issue in this appeal, and the appellant has provided
no credible evidence that she harbored animus toward him. Based on a careful
weighing of this evidence, we find that the Carr factor 2 weighs marginally in
favor of the appellant.
¶18We next discuss Carr factor 3. The agency bears the burden of proving that
it would have taken the same action in the absence of the appellant’s protected
activity. Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 14 (2015).
While the agency does not have an affirmative burden to produce evidence
concerning each and every Carr factor, when the agency has failed to introduce
complete, fully explained comparator evidence, Carr factor 3 does not weigh in
its favor. Smith v. Department of the Army , 2022 MSPB 4, ¶ 30; see Smith v.
General Services Administration , 930 F.3d 1359, 1367 (Fed. Cir. 2019). If either
or both of the first two Carr factors do not support a finding that the agency
would have taken the same personnel action absent the disclosure or protected
activity, the agency’s failure to present evidence of the third Carr factor may
prevent it from carrying its overall burden. Smith, 2022 MSPB 4, ¶¶ 26-30; see
also Miller v. Department of Justice , 842 F.3d 1252, 1259-63 (Fed. Cir. 2016). In
her analysis of Carr factor 3, the administrative judge considered three potential
comparators, including two identified by the appellant and one identified by the
agency. ID at 212-16. We disagree with the administrative judge’s finding that
the agency’s proffered comparator engaged in similar misconduct to the appellant.15
ID at 215-16. Further, there is no evidence in the record reflecting whether the
comparator is a whistleblower. ID at 213 n.17. Regarding the comparators
proffered by the appellant, we agree with the administrative judge, for the reasons
set forth in the initial decision, that they are not similarly situated to the
appellant. ID at 212-15; see Whitmore v. Department of Labor , 680 F.3d 1353,
1373 (Fed. Cir. 2012) (explaining that relevant considerations in determining
whether employees are similarly situated for the purpose of analyzing Carr
factor 3 include the degree and type of misconduct, the similarity of the
comparators’ position to the appellant’s, and whether the employees operated
within the same chain of command). Under the circumstances of this case, we
find that the agency has failed to introduce complete, fully explained comparator
evidence, and Carr factor 3 therefore does not weigh in its favor.11
¶19After considering each of the Carr factors, we agree with the administrative
judge’s conclusion that the agency’s robust evidence in support of its charges
strongly outweighs any marginal potential motive to retaliate and the lack of clear
evidence presented by the agency regarding Carr factor 3. We therefore find that
the agency has proved by clear and convincing evidence that it would have
removed the appellant in the absence of his protected whistleblowing.
¶20We next address the appellant’s procedural arguments. The appellant
asserts that the administrative judge erred by denying his request for a rebuttal
11 We have considered the appellant’s assertions that other employees who engaged in
similar misconduct were not investigated by the agency. PFR File, Tab 7 at 48. He
points to individuals who posted what appear to be inappropriate comments to the
Flying Pigs Facebook page. Id. However, agency investigators testified, and the
appellant does not dispute, that many of the posts concerned former agency employees,
unlike the appellant’s posts, which concerned current agency employees. ID at 28; PFR
File, Tab 7 at 31, 48. The appellant has not provided evidence that the individuals he
alleges to have engaged in inappropriate conduct during an investigation were under
investigation or signed a nondisclosure agreement like the one the appellant was
charged with violating. PFR File, Tab 7 at 48. In addition, there is no evidence that the
conduct of any other employee generated complaints by peers like the appellant’s
conduct did. In sum, we find that the agency has clearly and convincingly explained
any differences in its treatment of these employees. ID at 28; see Whitmore, 680 F.3d
at 1373.16
witness to testify at the hearing and by denying his request to depose the agency’s
Chief Counsel. PFR File, Tab 7 at 62, 64-65. An administrative judge has wide
discretion under the Board’s regulations to exclude witnesses when it has not
been shown that their testimony would be relevant, material, and nonrepetitious.
Fox v. Department of the Army , 120 M.S.P.R. 529, ¶ 42 (2014); see 5 C.F.R.
§ 1201.41(b)(8), (10). The Board will not reverse an administrative judge’s
rulings on discovery matters absent an abuse of discretion. Wagner v.
Environmental Protection Agency , 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d
1236 (Fed. Cir. 1993) (Table). The agency has asserted, and the appellant has not
disputed, that in lieu of a deposition, the administrative judge permitted the
appellant to serve 20 interrogatories on the agency’s Chief Counsel. PFR File,
Tab 14 at 48. The appellant has not explained why the permitted interrogatories
were insufficient. As to the appellant’s request to call rebuttal witness, D.K., the
appellant has provided no basis on review to disturb the administrative judge’s
finding that the proffered testimony was not relevant, and we therefore find that
the appellant has failed to prove that the administrative judge abused her
discretion. PFR File, Tab 7 at 62.
¶21Regarding the appellant’s motion to compel discovery, the administrative
judge concluded that the request at issue sought information that was not relevant
or probative to the issues on appeal. W-2 AF, Tab 15 at 3-4. We agree. The
appellant sought information about prior misconduct allegations against J.L. PFR
File, Tab 7 at 63. As we have discussed extensively, the Board need not consider
J.L.’s purported retaliatory motive. In any event, we find that the administrative
judge did not abuse her discretion in finding that J.L.’s past disciplinary record, if
any, is not relevant to her purported retaliatory motive against the appellant.
W-2 AF, Tab 15 at 3-4. Regarding the administrative judge’s denial of the
appellant’s request to submit a post-hearing brief in lieu of an oral closing
statement, which the agency opposed, W-2 AF, Tab 86 at 4, Tab 89, the appellant
asserts on review that he did not have time to address all of his arguments before17
the administrative judge, PFR File, Tab 7 at 65-66. We find that the
administrative judge did not abuse her discretion in denying the appellant’s
request to submit a post -hearing brief. See Ryan v. Department of the Air Force ,
117 M.S.P.R. 362, ¶ 5 (2012) (explaining that administrative judges have wide
discretion to regulate the proceedings before them and such rulings ordinarily will
not be reversed absent a showing of abuse of discretion). In any event, the Clerk
of the Board granted the appellant’s request to file an expanded petition for
review, and we have addressed each of his arguments raised therein. PFR File,
Tab 6.
¶22We acknowledge that the amicus briefs filed in this case raise arguments in
addition to those previously discussed in this order, including some not raised by
the appellant in his petition for review. PFR File, Tabs 17-18. We have
considered those arguments and find that they do not warrant a different outcome.
Based on the foregoing, we deny the appellant’s petition for review and affirm the
initial decision as modified herein.
NOTICE OF APPEAL RIGHTS12
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
12 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.18
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 19
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 20
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.13 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
13 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 21
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.22 | MacLean_Robert_J_DC-1221-20-0235-W-2_Final_Order.pdf | 2024-11-15 | ROBERT J. MACLEAN v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-1221-20-0235-W-2, November 15, 2024 | DC-1221-20-0235-W-2 | NP |
362 | https://www.mspb.gov/decisions/nonprecedential/Trujillo_Dennis_W_DE-0845-20-0355-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DENNIS W. TRUJILLO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0845-20-0355-I-1
DATE: November 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dennis W. Trujillo , Denver, Colorado, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed a final decision of the Office of Personnel Management (OPM), found
that the appellant was overpaid by $47,619 in retirement annuity benefits, denied
the appellant’s request for a waiver of the debt, and denied an adjustment to the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
repayment schedule. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. We MODIFY the initial decision to
find that the appellant was without fault in the overpayment, but we still find that
the appellant is not entitled to a waiver of the overpayment. We VACATE the
portion of the initial decision finding that the appellant is not entitled to an
adjustment of the repayment schedule because the Board lacks jurisdiction to
consider an adjustment in this case. Except as so expressly MODIFIED, we
AFFIRM the initial decision.
BACKGROUND
The appellant applied for workers’ compensation benefits from the Office
of Workers’ Compensation Programs (OWCP) and disability retirement benefits
through the Federal Employees’ Retirement System (FERS). Initial Appeal File
(IAF), Tab 6 at 51-54. In his application for FERS benefits, the appellant stated
that his claim for OWCP benefits was pending, and he acknowledged that he
could not receive benefits from FERS and OWCP at the same time. Id. at 54. He
also checked a box authorizing OPM to collect any overpayment if he was found
to have received dual compensation from both FERS and OWCP. Id. On or2
about July 12, 2018, OPM notified the appellant that it authorized interim FERS
annuity payments. Id. at 8, 45-46; IAF, Tab 32 at 4. Eight days later, on July 20,
2018, the appellant mailed a letter to OPM requesting that it stop FERS payments
because he was electing to receive OWCP payments instead. IAF, Tab 6
at 47-48. OPM did not immediately stop the payments, and the appellant received
both FERS annuity payments and OWCP benefits for the time period between
January 1, 2018, and April 30, 2019, resulting in an overpayment of $47,619. Id.
at 20-21.
After OPM notified him of the overpayment, the appellant requested a
waiver. Id. at 14-18. OPM issued a final decision denying the appellant’s request
for a waiver because he should have known to set aside the erroneous payments
and finding that he was not entitled to an adjustment of the repayment schedule
because he failed to demonstrate financial hardship. Id. at 8-11. OPM advised
the appellant that, if he did not elect to enter into the installment repayment
agreement or file an appeal with the Board, the total balance would become due.
IAF, Tab 1 at 11-12. The appellant did not remit a lump sum or enter the
repayment agreement, but he elected to file a Board appeal. IAF, Tab 1. The
administrative judge affirmed OPM’s reconsideration decision. IAF, Tab 37,
Initial Decision (ID). The appellant has filed a petition for review, and OPM has
filed a response. Petition for Review (PFR) File, Tabs 1-4.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant has not challenged the existence or amount of an
overpayment. PFR File, Tab 1. The appellant argues that he is entitled to a
waiver or, in the alternative, that he is entitled to an adjustment of the repayment
schedule because of financial hardship. Id. at 4-5. He also challenges the
administrative judge’s discovery rulings and requests that his doctor be permitted
to testify about his state of mind at the time of the overpayment. Id. 3
The appellant is not entitled to a waiver.
Recovery of an overpayment may be waived if the appellant is “without
fault” for the overpayment and “recovery would be against equity and good
conscience.” 5 C.F.R. § 845.301. The prompt notification exception creates an
automatic finding of no fault for individuals who contact OPM within 60 days of
the receipt of an overpayment to question the correctness of the payment. IAF,
Tab 5 at 12; see Boyd v. Office of Personnel Management , 851 F.3d 1309,
1313-14 (Fed. Cir. 2017) (applying the prompt notification exception).
The administrative judge’s finding that the appellant delayed contacting
OPM by 6 months after the overpayment is erroneous.2 ID at 2. OPM notified
the appellant on or around July 12, 2018, that it authorized interim payments.
IAF, Tab 6 at 8, 45-46, Tab 32 at 4. On July 20, 2018, the appellant mailed a
letter to OPM requesting to stop FERS payments because he was electing to
instead receive OWCP payments. IAF, Tab 6 at 47-48. Because the appellant
contacted OPM within 60 days of receiving notification of approval and the
commencement of benefits, we find that the prompt notification exception applies
and he is not at fault for the overpayment.
We next consider whether it would be against equity and good conscience
to require the appellant to repay the benefits. OPM’s guidelines state, “an
individual who accepted a payment which he/she suspected or knew to be
erroneous but who is found without fault under the Prompt Notification Exception
. . . is obliged to set the overpaid money aside pending recovery by OPM.” IAF,
Tab 5 at 15 (emphasis in original). This is known as the set-aside rule. Absent
exceptional circumstances, recovery by OPM in these cases is not against equity
and good conscience, and financial hardship is not an exceptional circumstance.
James v. Office of Personnel Management , 72 M.S.P.R. 211, 217 (1996). On
review, the appellant reasserts his argument that he did not know of the
2 To the extent that the administrative judge found that the erroneous 6-month delay
diminished the appellant’s credibility, we vacate that finding. ID at 2 n.2.4
overpayment. PFR File, Tab 1 at 4-5. The appellant alleges that he was receiving
various benefits around the same time and was unaware of the source of the
payments that were being deposited into his account. Id. We agree with the
administrative judge’s finding that the appellant knew or should have known that
he was receiving an overpayment based on his July 20, 2018 letter to OPM, as
well as his acknowledgment in his application for FERS benefits that he was not
entitled to receive FERS and OWCP benefits at the same time. ID at 4-5 & n.6.
Because the set-aside rule required the appellant to preserve the money for
repayment, we find that recovery is not against equity and good conscience. Id.
Nevertheless, we are mindful that it was OPM that helped create this situation.
Specifically, instead of promptly processing the appellant’s request to cease
payments, OPM continued to pay the appellant for approximately 9 months and
now must use government resources to recover the substantial overpayment that
resulted from its lack of action.
The Board lacks jurisdiction to address the appellant’s possible entitlement to an
adjustment of the repayment schedule.
In Fearon v. Office of Personnel Management , 107 M.S.P.R. 122, ¶¶ 14-15
(2007), the Board held that it lacks jurisdiction to address an appellant’s possible
entitlement to an adjustment of the repayment schedule when there is no
repayment schedule in effect at the time the debt is to be collected. The Board
explained that its authority is limited to OPM actions or orders that affect the
appellant’s “rights or interests” under the Civil Service Retirement System
(CSRS).3 Id. It concluded that because the appellant was no longer receiving an
annuity, OPM’s attempts to recover the overpayment by other means, either by
persuading her to enter into a voluntary repayment agreement or by referring the
matter to the Department of the Treasury or the Department of Justice, did not
affect her “rights or interests” under the CSRS. Id. The Board has recognized an
3 Because the “rights or interests” language of 5 U.S.C. § 8347(d)(1), under CSRS, is
identical to the language in 5 U.S.C. § 8461(e)(1), under FERS, we find that the
reasoning in Fearon is applicable to cases arising under FERS. 5
exception to this general rule and has found jurisdiction when an appellant is
receiving a recurring payment from another source from which the debt can be
offset, such as OWCP benefits. See Martin v. Office of Personnel Management ,
119 M.S.P.R. 188, ¶ 9 n.4 (2013); Alexander v. Office of Personnel Management ,
114 M.S.P.R. 122, ¶¶ 11-12 (2010).
Here, it is undisputed that the appellant is not receiving an annuity and
there is no repayment schedule in effect at this time. IAF, Tab 11 at 3, Tab 32
at 4. Though the appellant is receiving OWCP benefits, the record reflects that
the overpayment is not being offset from the appellant’s OWCP benefits. IAF,
Tab 11 at 3. As in Fearon, OPM has stated that the debt will be collected by the
Department of the Treasury. Id.; see Fearon, 107 M.S.P.R. 122, ¶ 4.
Accordingly, we lack authority to adjudicate the appellant’s possible entitlement
to an adjustment to the repayment schedule, and we vacate the initial decision
regarding this finding. See Miller v. Office of Personnel Management ,
123 M.S.P.R. 68, ¶ 13 (2015) (finding no jurisdiction to consider an adjustment
of the repayment schedule when there was no repayment schedule in effect at the
time of the action and there was no indication in the record that OPM was seeking
to offset another of the appellant’s recurring payments to recover the
overpayment).
The administrative judge did not abuse his discretion in denying the appellant’s
discovery requests.
On review, the appellant argues that the administrative judge erred by
denying various discovery requests. PFR File, Tab 1 at 5. An administrative
judge has broad discretion in ruling on discovery matters, and the Board will not
reverse an administrative judge’s rulings on discovery matters absent an abuse of
discretion. Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 16 (2016). The
administrative judge denied the appellant’s request for discovery of “evidence
regarding other cases in which financial hardship was granted or denied” as
untimely without good cause and, in the alternative, because it is beyond the6
scope of permissible discovery for the agency. IAF, Tab 28 at 2. The appellant
did not object to the administrative judge’s denial and did not file a motion to
compel as required by 5 C.F.R. § 1201.73(c), (d)(3) (2020). The appellant does
not state in his petition for review that his request was timely, and he does not
explain why the requested information is relevant. We find that the
administrative judge did not abuse his discretion in denying the appellant’s
discovery request for this information. Fisher v. Department of Defense ,
59 M.S.P.R. 165, 170-71 (1993) (finding the administrative judge did not err in
denying the appellant’s request for discovery when the request was not timely
made in accordance with the administrative judge’s order); Radziewicz v. U.S.
Postal Service, 42 M.S.P.R. 692, 695 -97 (1990) (finding an administrative judge
did not err in denying discovery when the appellant failed to exercise due
diligence in pursuing discovery by filing a motion to compel).
The appellant also asserts that the administrative judge erred by not
allowing discovery of “prior cases the OPM representative worked on” and a
“special expense list.” PFR File, Tab 1 at 5. The administrative judge’s
acknowledgment order provided basic discovery instructions to the appellant and
referred him to the applicable regulations. IAF, Tab 2 at 3-4. There is no
indication in the record that the appellant requested these documents before the
deadline to initiate discovery expired. IAF, Tab 28 at 2. We find that the
appellant’s failure to avail himself of the opportunity to engage in discovery is
not attributable to the administrative judge. See Clark v. U.S. Postal Service ,
123 M.S.P.R. 466, ¶ 16 (2016), aff’d per curium , 679 F. App’x 1006 (Fed. Cir.
2017), overruled on other grounds by Cronn v. U.S. Postal Service , 2022 MSPB
13, ¶ 20 n.11.
Finally, the appellant requests that his doctor be permitted to testify
regarding his mental state at the time of the overpayment. PFR File, Tab 1 at 4-5.
There is no evidence that the appellant made this request before the
administrative judge. See, e.g., IAF, Tab 33 at 1. The Board will not consider7
evidence submitted for the first time in the petition for review absent a showing
that it was unavailable before the record closed despite the party’s due diligence.
Avansino v. U.S. Postal Service , 3 M.S.P.R 211, 214 (1980). The appellant has
not alleged that his doctor’s testimony was not available prior to the close of the
record, and we, therefore, deny the appellant’s request for his doctor to testify.
Brown v. U.S. Postal Service , 62 M.S.P.R. 76, 79-80 (1994) (finding the appellant
did not exercise due diligence in attempting to obtain evidence before the
administrative judge when he did not file a discovery request or a motion to
compel discovery, and, therefore, he was not permitted to present the evidence for
the first time in his petition for review).
The appellant’s remaining arguments dispute the administrative judge’s
findings regarding financial hardship and adjustment of the repayment schedule.
Because we lack jurisdiction to adjust the repayment schedule, we need not
address those arguments. Based on the foregoing, we vacate the findings in the
initial decision relating to the appellant’s request for an adjustment to the
repayment schedule and we affirm the initial decision as explicitly modified
herein.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
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
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file10
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Trujillo_Dennis_W_DE-0845-20-0355-I-1_Final_Order.pdf | 2024-11-14 | DENNIS W. TRUJILLO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0845-20-0355-I-1, November 14, 2024 | DE-0845-20-0355-I-1 | NP |
363 | https://www.mspb.gov/decisions/nonprecedential/Abayon_Antonio_S_SF-315H-21-0415-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTONIO S. ABAYON,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-315H-21-0415-I-1
DATE: November 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Antonio S. Abayon , Rancho Cordova, California, pro se.
Ryan Friedl , Esquire, McClellan, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his termination appeal for lack of jurisdiction. On petition for review,
the appellant concedes that the Agency terminated his appointment before he
completed the 2-year probationary period. He disputes the merits of his
termination, raises a claim of race discrimination for the first time on review, and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
seeks the relief of separation by means of a reduction in force. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
The appellant’s new race discrimination claim does not change the outcome
here. Petition for Review File, Tab 1 at 3-5. We consider this claim because the
issue of the Board’s jurisdiction may be raised at any time during a proceeding.
Morgan v. Department of the Navy , 28 M.S.P.R. 477, 478 (1985). However, the
appellant’s race discrimination claim does not afford an independent basis for
Board jurisdiction. Hurston v. Department of the Army , 113 M.S.P.R. 34, ¶ 11
(2010); Jafri v. Department of the Treasury , 68 M.S.P.R. 216, 220 (1995), aff’d
per curiam, 78 F.3d 604 (Fed. Cir. 1996) (Table). Therefore, it does not provide
a basis to disturb the initial decision. 2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Abayon_Antonio_S_SF-315H-21-0415-I-1_Final_Order.pdf | 2024-11-14 | ANTONIO S. ABAYON v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-315H-21-0415-I-1, November 14, 2024 | SF-315H-21-0415-I-1 | NP |
364 | https://www.mspb.gov/decisions/nonprecedential/Flynn_Rory_C_DC-1221-20-0215-W-3_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RORY C. FLYNN,
Appellant,
v.
SECURITIES AND EXCHANGE
COMMISSION,
Agency.DOCKET NUMBER
DC-1221-20-0215-W-3
DATE: November 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bruce Bettigole , New York, New York, for the appellant.
Laura Walker and James V. Blair , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal as barred by the doctrine of
res judicata. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review. We VACATE the initial decision and DISMISS the appeal
based on adjudicatory efficiency.
BACKGROUND
¶2The Securities and Exchange Commission (Commission) appointed the
appellant to the position of Associate General Counsel (Adjudication) in its
Office of General Counsel (OGC) effective August 12, 2012, subject to a 2 -year
trial period. Flynn v. Securities & Exchange Commission , MSPB Docket No. DC-
1221-14-1124-W-1 (1124 IRA Appeal), Appeal File (1124-W-1 IAF), Tab 27 at
5. On May 6, 2013, the agency terminated the appellant during his trial period,
citing poor performance, lack of professional judgment, and an inability to work
cooperatively with senior-level managers. 1124-W-1 IAF, Tab 16 at 23, 25-27.
¶3As Associate General Counsel, the appellant headed OGC’s Adjudication
Practice Group, which drafted decisions on appeals to the Commission from
decisions issued by the Commission’s administrative law judges and by
self-regulatory organizations. 1124-W-1 IAF, May 19, 2015 Hearing Transcript
(5/19/15 HT) at 24, 41-43, 70 (testimony of the appellant).2 The Commission’s
2 The hearing transcript is in a condensed format such that four pages of transcript
appear on each page. To avoid confusion and to be consistent with the administrative2
regulation at 17 C.F.R. § 201.900, also known as “Rule 900,” provides guidance
for these appeals. A portion of the regulation, referenced to here as Rule 900(a),
provides “[g]uidelines for timely completion of proceedings.” 17 C.F.R.
§ 201.900(a)(1)(iii) (2015).3 Another portion of the regulation, referred to here as
Rule 900(b), provides for “[r]eports to the Commission on pending cases,” (also
known as “900(b) reports”). 17 C.F.R. § 201.900(b) (2015). This portion of the
regulation directs that OGC submit “confidential status reports” regarding
“adjudicatory proceedings” to the Commission. Id. For matters not concluded
within 30 days of the deadlines set forth in Rule 900(a), OGC “shall specifically
apprise the Commission of that fact, and shall describe the procedural posture of
the case, project an estimated date for conclusion . . . , and provide such other
information as is necessary to enable the Commission to determine whether
additional steps are necessary to reach a fair and timely resolution of the
matter.” Id.
¶4After holding the appellant’s requested hearing, the administrative judge
issued an initial decision in the 1124 IRA Appeal, denying the appellant’s request
for corrective action. 1124-W-1 IAF, Tab 128, Initial Decision at 1, 15 (1124-
W-1 ID). He found that the appellant did not meet his burden to prove his prima
facie case of whistleblower reprisal by preponderant evidence because he did not
prove that his disclosures were protected as possible allegations of a violation of
law, rule or regulation, or gross mismanagement. Id. at 6-16. Rather, he found
that the appellant disputed the agency’s policy decision not to comply with what
he concluded were discretionary guidelines in Rule 900. Id. at 14-15. The
judge’s initial decision, we have cited to the page numbers assigned by the court
reporter and not the Board’s numerical pagination.
3 The current version of Rule 900 became effective on September 27, 2016.
Amendments to the Commission’s Rules of Practice, 81 Fed. Reg. 50,212-01, 50,241-42
(July 9, 2016) (codified at 17 C.F.R. § 201.900). The current version of Rule 900(a)(1)
(iii) contains different timeframes, i.e., 8 and 10 months from the completion of
briefing, for timely completion of proceedings. Accordingly, all citations to “Rule 900”
refer to the earlier version of the rule that was in place at the time of the events giving
rise to this case. See 17 C.F.R. § 201.900 (2015). 3
appellant filed a petition for review of the initial decision, but the two Board
members could not agree on the disposition of the petition and the initial decision
therefore became the final decision of the Board. Flynn v. Securities & Exchange
Commission, MSPB Docket No. DC-1221-14-1124-W-1, Order (Sept. 1, 2016).
¶5The appellant then sought review of the Board’s final decision in the 1124
IRA Appeal in the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit).
In December 2017, the Fourth Circuit issued a decision affirming the Board’s
finding that the appellant’s disclosures alleging violations of the agency’s Rule
900(a) were not protected. Flynn v. Securities & Exchange Commission , 877 F.3d
200, 205-06 (4th Cir. 2017). It also found that the appellant had waived his claim
that violation of Rule 900(a) evidenced gross mismanagement. Id. at 206 n. 3.
However, because the court found that the Board failed to fully consider whether
the appellant made protected disclosures alleging violations of Rule 900(b), it
remanded the 1124 IRA Appeal to the Board for further consideration of whether
the appellant’s Rule 900(b) disclosures were protected. Id. at 207-08.
¶6While his 1124 IRA Appeal was pending before the Board, on December 6,
2019, the appellant filed the instant IRA appeal. Flynn v. Securities & Exchange
Commission, MSPB Docket No. DC-1221-20-0215-W-1, Initial Appeal File
(0215-W-1 IAF), Tab 1. In this second IRA appeal, the appellant alleged that the
agency terminated him during his probationary period because he disclosed that
the agency violated a 2003 policy memorandum that the Commission issued to
the agency’s then-General Counsel, G.P., (referred to interchangeably as the
“2003 Policy Memorandum” or the “G.P. Memorandum”), which was itself a
“rule” within the meaning of section 2302(b)(8)(A)(i). Id. at 52-54. He also
alleged that he reasonably believed that the agency’s failure to comply with Rule
900 and its related procedures evidenced gross mismanagement. Id. at 54-58.
¶7The administrative judge notified the appellant of his burden to establish
jurisdiction over his IRA appeal. Flynn v. Securities & Exchange Commission ,
MSPB Docket No. DC-1221-20-0215-W-2, Initial Appeal File (0215-W-2 AF),4
Tab 5 at 2-8. The agency then moved to dismiss the instant appeal as barred by
the doctrine of res judicata, or alternatively by the doctrine of collateral estoppel.
0215-W-2 AF, Tab 31 at 8 n.3. Because the administrative judge determined that
his decision in the appellant’s 1124 IRA Appeal may be relevant to the issues
raised in the instant appeal, he dismissed the instant appeal without prejudice and
notified the parties that he would issue his decision in the instant appeal after
issuing his initial decision in the 1124 IRA Appeal. 0215-W-2 AF, Tab 40, Initial
Decision. The administrative judge then issued an initial decision in the
appellant’s 1124 IRA Appeal, denying the appellant corrective action based on
his finding that the appellant failed to establish that his disclosures concerning
Rule 900(b) violations were protected. Flynn v. Securities & Exchange
Commission, MSPB Docket No. DC-1221-14-1124-M-5, Appeal File (1124-M-5
AF), Tab 13, Initial Decision (1124-M-5 ID) at 27-37. The appellant then filed a
petition for review of the initial decision, and the Board has issued a separate
decision in that matter. 1124-M-5 Petition for Review (PFR) File, Tab 1; Flynn
v. Securities & Exchange Commission , MSPB Docket No. DC-1221-14-1124-M-
5, Remand Order (Nov. 14, 2024).
¶8After the instant appeal was refiled, the administrative judge issued an
initial decision granting the agency’s motion and dismissing the appeal as barred
by the doctrine of res judicata. Flynn v. Securities & Exchange Commission ,
MSPB Docket No. DC-1221-20-0215-W-3, Appeal File (0215-W-3 AF), Tab 4,
Initial Decision (ID) at 1, 13. In so finding, he determined that the instant appeal
is an identical cause of action with the same parties as the appellant’s 1124 IRA
Appeal because the appellant here alleged that his termination was retaliation for
disclosing violations of the G.P. Memorandum, which the appellant alleged in his
1124 IRA Appeal formed the basis of the agency’s obligations under Rule 900(a).
ID at 9-11. Moreover, he found that because the Board and the Fourth Circuit
found on the merits that the appellant failed to establish that his disclosures of5
Rule 900(a) violations were protected, those determinations constituted final
judgments on the merits. ID at 10-13.
¶9The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response, and the appellant has filed a reply.
PFR File, Tabs 4-5. The appellant has also filed a motion for leave to request a
status report, or alternatively a decision on his petition for review. PFR File,
Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
We find it appropriate to dismiss the appeal on the grounds of
adjudicatory efficiency.
¶10On review, the appellant challenges the administrative judge’s finding that
his claim that his termination was retaliation for disclosing violations of the G.P.
Memorandum is barred by the doctrine of res judicata. PFR File, Tab 1 at 38-42.
The agency argues that the administrative judge correctly found that the
appellant’s claim is barred by res judicata; however, in the alternative, it reargues
that the appellant’s claim is also barred by the doctrine of collateral estoppel.
PFR File, Tab 4 at 12-13. For the reasons provided below, we find that neither
doctrine applies here, and instead find it appropriate to dismiss this appeal on the
grounds of adjudicatory efficiency.
This appeal is not barred by res judicata or collateral estoppel.
¶11Res judicata precludes parties from relitigating issues that were, or could
have been, raised in the prior action and is applicable if: (1) the prior judgment
was rendered by a forum with competent jurisdiction; (2) the prior judgment was
a final judgment on the merits; and (3) the same cause of action and the same
parties or their privies were involved in both cases. Peartree v. U.S. Postal
Service, 66 M.S.P.R. 332, 337 (1995). The Board’s regulations define the issue
before the Board in an IRA appeal, or the cause of action, as whether the
appellant has demonstrated that whistleblowing or other protected activity was a6
contributing factor in one or more covered personnel actions and, if so, whether
the agency has demonstrated by clear and convincing evidence that it would have
taken the same personnel action(s) in the absence of such whistleblowing or
protected activity. 5 C.F.R. § 1209.2(c). The Board has held that generally an
individual who appeals his removal directly to the Board is barred by res judicata
from bringing, after exhausting his administrative remedies, a second
whistleblower appeal challenging the same removal action. Ryan v. Department
of the Air Force , 113 M.S.P.R. 27, ¶ 13 (2009); see Sabersky v. Department of
Justice, 91 M.S.P.R. 210, ¶¶ 2-3, 7-8 (2002) (finding that an individual who
appeals his removal directly to the Board is barred by res judicata from bringing,
after exhausting the OSC process, an IRA appeal alleging that the same removal
action was motivated by whistleblower reprisal), aff’d per curiam , 61 Fed. Appx.
676 (Fed. Cir. 2003). Thus, the cause of action, or personnel action, at issue in
both the appellant’s IRA appeals is his probationary removal.
¶12As the administrative judge noted, in the appellant’s 1124 IRA Appeal, he
alleged that he was removed in retaliation for his protected disclosures of
Rule 900(a) and (b) violations. ID at 2. In the instant appeal, the appellant
alleged that he was removed in retaliation for his protected disclosures of
violations of the G.P. Memorandum. ID at 5. The administrative judge found
that the cause of action in both appeals was identical because both concerned his
removal and the appellant alleged in his 1124 IRA Appeal that the
G.P. Memorandum formed the basis of the agency’s obligations under
Rule 900(a). ID at 9-11. He concluded that because the first administrative
judge’s initial decision found that the appellant’s Rule 900(a) and (b) disclosures
were not protected on the merits, after which that decision became the Board’s
final decision, and because the U.S. Court of Appeals for the Fourth Circuit
affirmed the finding as to the Rule 900(a) disclosures, then a final judgment on
the same cause of action had been rendered on the merits. ID at 10-11; Flynn,
877 F.3d at 205; Flynn, 123 M.S.P.R. 559, ¶ 1 (2016); 1124-M-4 AF, Tab 20,7
Order at 5 (Mar. 31, 2022). We disagree. As explained above, although the
Fourth Circuit affirmed the issue that the appellant’s Rule 900(a) disclosures were
not protected on the merits, it ultimately remanded the 1124 IRA Appeal for a
determination of whether the appellant proved by preponderant evidence that he
made protected disclosures concerning the agency’s violation of Rule 900(b), and
if so, whether the agency proved by clear and convincing evidence that it would
have removed the appellant in the absence of his disclosures. Flynn, 877 F.3d at
207-08. Because res judicata requires a final decision on the merits, the doctrine
will not apply if the prior decision was remanded for further adjudication and thus
has not yet become final. Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 337
(1995).
¶13Following remand proceedings, the administrative judge issued an initial
decision in July 2023 denying corrective action based on the appellant’s failure to
establish that his disclosures concerning the agency’s violation of Rule 900(b)
were protected. 1124-M-5 ID at 37. The appellant then timely filed a petition for
review of that initial decision. 1124-M-5 PFR File, Tab 1. Thus, although at the
time the administrative judge issued the instant initial decision in November 2023
he had already issued the initial decision in appellant’s 1124 IRA Appeal in July
2023, the appellant’s petition for review of that appeal was still pending before
the Board, and thus it was not a final judgment as to the appellant’s removal
cause of action. See 5 C.F.R. § 1201.113(c) (providing that an initial decision is
not a final decision if a petition for review is timely filed). Thus, the
administrative judge erred in applying res judicata. See McNeil v. Department of
Defense, 100 M.S.P.R. 146, ¶ 11 (2005) (holding that when an appellant files an
appeal that raises claims raised in an earlier appeal after the initial decision in the
earlier appeal has been issued, but before the full Board has acted on the
appellant’s petition for review, it is appropriate to dismiss the subsequent appeal
on the grounds of administrative efficiency, not on the grounds of collateral
estoppel or res judicata).8
¶14Moreover, we issued a Remand Order in the 1124 IRA Appeal, vacating the
administrative judge’s finding that the appellant did not establish that his
disclosures of Rule 900(b) violations were protected, and remanding the appeal
for a determination of whether the agency proved by clear and convincing
evidence that it would have removed the appellant in the absence of his
disclosures. Thus, because a final determination on the appellant’s same removal
cause of action has not been made, the doctrine of res judicata still does not apply
here. For this same reason, collateral estoppel would not apply to bar the instant
action. See Wade v. Department of the Air Force , 70 M.S.P.R. 396, 398 (holding
that collateral estoppel may only be applied when there is a final judgment in the
previous litigation), aff’d, 104 F.3d 375 (Fed. Cir. 1996) (Table). Nevertheless,
we find it appropriate to dismiss this appeal based on adjudicatory efficiency.
We dismiss the appeal on grounds of adjudicatory efficiency .
¶15When an appellant files an appeal that raises the same claims raised in an
earlier appeal before the decision in the earlier appeal has become final, the
Board may dismiss the subsequent claims based upon adjudicatory efficiency.
Bean v. U.S. Postal Service , 120 M.S.P.R. 447, ¶ 5 (2013); Zgonc v. Department
of Defense, 103 M.S.P.R. 666, ¶ 6 (2006) (same), aff’d, 230 F. App’x 967 (Fed.
Cir. 2007). Appeals may be dismissed in the interest of adjudicatory efficiency
when an identity of issues exists and the controlling issues in the appeal will be
determined in a prior appeal. Kinler v. General Services Administration ,
44 M.S.P.R. 262, 263 (1990). Thus, the remaining issue is whether the
appellant’s two IRA appeals raise the same claims. We find that they do.
¶16The administrative judge found that the appellant’s allegation that his
disclosure of alleged violations of Rule 900(a) in his 1124 IRA Appeal was
identical to his allegation that he disclosed violations of the G.P. Memorandum in
this appeal because in his 1124 IRA Appeal the appellant claimed that the case
processing requirements described in the G.P. Memorandum formed the basis of
the agency’s obligations under Rule 900(a). ID at 9-10. As mentioned above, in9
the 1124 IRA Appeal the Board and the Fourth Circuit determined that the
appellant’s disclosures that the agency violated Rule 900(a) by not issuing
decisions within the stated timeframes were not protected because the timeframes
were merely discretionary guidelines. 1124-W -1 ID at 13-16; Flynn, 877 F.3d
at 205-06. On review, the appellant challenges the administrative judge’s finding
below, arguing that the G.P. Memorandum “imposed mandatory obligations” that
“augment all of Rule 900, not just subsection (a),” and therefore, his disclosures
are not identical to his Rule 900(a) disclosures. PFR File, Tab 1 at 39. We agree
with the administrative judge that the appellant’s claim that the agency violated
the G.P. Memorandum is the same as his claim that the agency violated
Rule 900(a). For instance, Rule 900(a) contains “[g]uidelines for timely
completion of proceedings,” and the entire G.P. Memorandum discusses those
timeframes. The Memorandum states that in order to “complement” those
Rule 900(a) timeframes the Commission proposed “changes [that] must be made
to internal procedures to reduce the time for issuance of decisions,” including
shortening the time periods it provided to parties to brief an appeal, establishing
deadlines for OGC to submit the draft decision to the Commission, and imposing
a deadline on the Commission for issuing a final decision. 0215-W-1 IAF, Tab 1
at 82-85; 17 C.F.R. § 201.900(a)(1)(iii) (2015). In the 1124 IRA Appeal, in
support of his claim that Rule 900(a)’s timelines were mandatory, the appellant
testified that the G.P. Memorandum dictated current procedure under Rule 900(a)
and that it showed the Commission intended to move to mandatory deadlines after
the rule was amended in 2003. HT 5/19/2015 at 119-128 (testimony of the
appellant). For instance, in October 2012, when the appellant first made his
alleged disclosures to the Deputy General Counsel concerning the agency’s
violations of Rule 900(a)’s case processing timeframes, he attached the G.P.
Memorandum to his communication. 0215-W-1 IAF, Tab 89 at 36-40.
¶17The appellant reargues on review that the G.P. Memorandum was not
considered in his 1124 IRA Appeal by the first administrative judge or by the10
Fourth Circuit. 0215-W-3 ID at 12-13; PFR File, Tab 1 at 41-42. However, we
agree with the administrative judge that the first administrative judge considered
the appellant’s reliance on the G.P. Memorandum and implicitly found that the
agency had stopped following it sometime prior to the events at issue in this
appeal. 1124-W-1 ID at 8-11; 1124-W-1 IAF, May 20, 2015 Hearing Transcript
(5/20/15 HT) pt. 2 at 71 (testimony of the Deputy General Counsel);4 1124-W-1
IAF, July 1, 2015 Hearing Transcript (7/1/15 HT) at 207-08 (testimony of K.K.)
at 267-68 (testimony of B.P.). Thus, we agree with the administrative judge’s
finding that the issue here is identical to that involved in the appellant’s
1124 IRA Appeal. Accordingly, we find it appropriate to dismiss this appeal on
grounds of adjudicatory efficiency.5
¶18Lastly, the appellant reraises his Appointments Clause and separation of
powers claims regarding the authority of the administrative judge. PFR File,
Tab 1 at 6, 14, 31-34. In the 1124 IRA Appeal, we acknowledged the appellant’s
arguments concerning these constitutional claims and declined to revisit them on
grounds that they were decided in the Board’s interlocutory decision. Flynn v.
Securities & Exchange Commission , 2022 WL 985827, ¶¶ 10-12. Accordingly,
we decline to consider these claims further.
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
4 The transcript of the testimony from May 20, 2015, consists of two parts, both
containing the same pagination and located in the same tab of the record. Here, we
have cited to part 2 (pt. 2).
5 Based on our decision that res judicata does not apply, we need not consider the
appellant’s argument that the agency is judicially estopped from asserting res judicata
in this appeal. PFR File, Tab 1 at 36-38. Additionally, the appellant’s motion for a
status report or a decision on the petition for review is denied.
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.11
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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 provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the13
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of14
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 15
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.16 | Flynn_Rory_C_DC-1221-20-0215-W-3_Final_Order.pdf | 2024-11-14 | RORY C. FLYNN v. SECURITIES AND EXCHANGE COMMISSION, MSPB Docket No. DC-1221-20-0215-W-3, November 14, 2024 | DC-1221-20-0215-W-3 | NP |
365 | https://www.mspb.gov/decisions/nonprecedential/Flynn_Rory_C_DC-1221-14-1124-M-5_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RORY C. FLYNN,
Appellant,
v.
SECURITIES AND EXCHANGE
COMMISSION,
Agency.DOCKET NUMBER
DC-1221-14-1124-M-5
DATE: November 14, 2024
THIS ORDER IS NONPRECEDENTIAL1
Bruce M. Bettigole , New York, New York, for the appellant.
Laura Walker and James V. Blair , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
REMAND ORDER
¶1The 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
review, VACATE the initial decision, find that the appellant met his burden to
prove that he made a protected disclosure under 17 C.F.R. § 201.900(b) that was a
contributing factor in his employment termination, and REMAND the case to the
regional office for further adjudication in accordance with this Order.
BACKGROUND
¶2The Securities and Exchange Commission (Commission) appointed the
appellant to the position of Associate General Counsel (Adjudication) in its
Office of General Counsel (OGC) effective August 12, 2012, subject to a 2 -year
trial period. Flynn v. Securities & Exchange Commission , MSPB Docket No. DC-
1221-14-1124-W-1, Initial Appeal File (1124-W-1 IAF), Tab 27 at 5. On May 6,
2013, the agency terminated the appellant during his trial period, citing poor
performance, lack of professional judgment, and an inability to work
cooperatively with senior-level managers. 1124-W-1 IAF, Tab 16 at 23, 25 -27.
¶3As Associate General Counsel, the appellant headed OGC’s Adjudication
Practice Group and reported directly to the Deputy General Counsel. 1124-W-1
IAF, May 19, 2015 Hearing Transcript (5/19/15 HT) at 24, 70 (testimony of the
appellant).2 As relevant to this appeal, the Adjudication Practice Group drafted
decisions on appeals to the Commission from decisions issued by the
Commission’s administrative law judges and by self-regulatory organizations.
Id. at 41-43 (testimony of the appellant). The Commission’s regulation
at 17 C.F.R. § 201.900, also known as “Rule 900,” provides guidance for these
appeals. A portion of the regulation, referred to here as Rule 900(a), provides
“[g]uidelines for timely completion of proceedings.” 17 C.F.R. § 201.900(a)(1)
(iii) (2015). That provision states that a decision on an appeal “should be issued
2 The hearing transcript is in a condensed format such that four pages of transcript
appear on each page. To avoid confusion and to be consistent with the administrative
judge’s initial decision, we have cited to the page numbers assigned by the court
reporter and not the Board’s numerical pagination. 2
within seven months” of the date an appeal is filed unless the appeal is
complicated, “in which case a decision . . . may be issued within 11 months.” Id.3
¶4Another portion of the regulation, referred to here as Rule 900(b), provides
for “[r]eports to the Commission on pending cases,” also known as “900(b)
reports.” 17 C.F.R. § 201.900(b) (2015). This portion of the regulation directs
that OGC submit “confidential status reports” regarding “adjudicatory
proceedings” to the Commission. Id. For matters not concluded within 30 days
of the deadlines set forth in Rule 900(a), OGC “shall specifically apprise the
Commission of that fact, and shall describe the procedural posture of the case,
project an estimated date for conclusion . . . , and provide such other information
as is necessary to enable the Commission to determine whether additional steps
are necessary to reach a fair and timely resolution of the matter.” Id.
¶5During the appellant’s 9 months of employment as the Associate General
Counsel, he reported alleged violations of Rule 900. Specifically, on October 16,
2012, the appellant expressed his concern to the then-General Counsel, M.C., and
the Deputy General Counsel that the Commission was not issuing decisions on
appeals within the 7- and 11-month timeframes in Rule 900(a)(1)(iii). 1124-W-1
IAF, Tab 89 at 31-35. On October 18, 2012, he also expressed his opinion to the
Deputy General Counsel that OGC was violating Rule 900(b) in its periodic
900(b) reports by not providing the level of detail that the rule required for cases
that exceeded the Rule 900(a)(1)(iii) timeframes. 1124-W-1 IAF, Tab 89
at 54-55.
¶6In November 2012, the appellant followed up with the Deputy General
Counsel both in person and via email, repeating his concerns and suggesting
3 As noted by the administrative judge, the current version of Rule 900 became effective
on September 27, 2016. Amendments to the Commission’s Rules of Practice, 81 Fed.
Reg. 50,212-01, 50,241-42 (July 9, 2016) (codified at 17 C.F.R. § 201.900). The
current version of Rule 900(a)(1)(iii) contains different timeframes, i.e., 8 and
10 months from the completion of briefing, for timely completion of proceedings.
Accordingly, all citations to “Rule 900” refer to the earlier version of the rule that was
in place at the time of the events giving rise to this case. See 17 C.F.R. § 201.900
(2015). 3
solutions. 1124-W-1 IAF, Tab 72 at 92 -96, Tab 89 at 67-68; 5/19/15 HT
at 136-37, 173-75 (testimony of the appellant). In January 2013, he also
expressed his concerns to the new Commission Chair, E.W., and her staff, and the
new General Counsel, G.A.4 5/19/15 HT at 187, 190-92, 203 -05 (testimony of the
appellant); 1124-W-1 IAF, Tab 75 at 222-23, Tab 90 at 56, Tab 115 at 14. On
April 19, 2013, the appellant sent a draft 900(b) report to the Deputy General
Counsel, again raising his concerns that the reports did not provide sufficient
detail required by Rule 900(b). 1124-W-1 IAF, Tab 91 at 5-6, Tab 75 at 222-33.
In his draft report, he referenced Rule 900 for older cases by stating, “A decision
by the Commission has not been issued within the recommended guidelines set
forth in Rule 900(a)(l)(iii) (i.e., within seven months of the appeal).” 1124-W-1
IAF, Tab 75 at 225-33.
¶7On April 22, 2013, the appellant met with the Deputy General Counsel to
discuss the draft report and, over the appellant’s objection, the Deputy General
Counsel instructed the appellant to remove the references to Rule 900. Id. at 4;
5/19/15 HT at 269-73 (testimony of the appellant). The appellant was scheduled
to meet with the new Commission Chair, M.W., on May 6, 2013, to discuss his
concerns. 5/19/15 HT at 257-59, 282 (testimony of the appellant). However, the
meeting did not occur because it was canceled on May 2, 2013, four days before
the appellant’s termination. Id. at 283 (testimony of the appellant); 1124-W-1
IAF, Tab 16 at 23, 25-27.
¶8After the parties engaged in extensive discovery over several months, the
assigned administrative judge held the appellant’s requested hearing over the
course of 3 days in May and July 2015. The administrative judge issued an initial
decision denying the appellant’s request for corrective action. 1124-W-1 IAF,
Tab 128, Initial Decision at 1, 15 (July 30, 2015) (1124-W-1 ID). He found that
the appellant did not meet his burden to prove his prima facie case of
4 G.A. was appointed as General Counsel in January 2015. 5/19/15 HT at 194-95
(testimony of the appellant). In April 2015, G.A. became the Senior Counsel to the next
Chair of the Commission. Id. at 205-06 (testimony of the appellant).4
whistleblower reprisal by preponderant evidence because he did not prove that his
disclosures were protected. Id. at 6-16. Rather, he found that the appellant
disputed the agency’s policy decision not to comply with what he concluded were
discretionary guidelines in Rule 900. Id. at 14-15. The appellant filed a petition
for review of the initial decision, but the two Board members could not agree on
the disposition of the petition, and the initial decision therefore became the final
decision of the Board. Flynn v. Securities & Exchange Commission , MSPB
Docket No. DC-1221-14-1124-W-1, Order (Sept. 1, 2016).
¶9The appellant then sought review of the Board’s final decision in the
U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit). In December 2017,
the Fourth Circuit issued a decision remanding the case to the Board for further
consideration. Flynn v. Securities & Exchange Commission , 877 F.3d 200 (4th
Cir. 2017). The court agreed with the Board that the appellant’s disclosures
alleging violations of the agency’s Rule 900(a) were not protected, but it found
that the Board failed to fully consider whether the appellant made protected
disclosures alleging violations of Rule 900(b). Id. at 205-08. The court
remanded the case to the Board for the administrative judge to interpret the
evidence after further development of the record, if necessary. Flynn, 877 F.3d
at 208.
¶10In February 2018, after the case had returned to the Board, the appellant
moved to vacate the administrative judge’s prior initial decision based on
violations of the Appointments Clause and the separation of powers requirements
of the U.S. Constitution. Flynn v. Securities & Exchange Commission , MSPB
Docket No. DC-1221-14-1124-M-1, Appeal File (1124-M-1 AF), Tab 2. The
remanded appeal was assigned to the same administrative judge who decided the
initial appeal. In March 2018, he dismissed the appeal without prejudice pending
the Supreme Court’s decision in Lucia v. Securities & Exchange Commission ,
868 F.3d 1021 (D.C. Cir. 2017), cert. granted, 583 U.S. 1089 (Jan. 12, 2018) (No.
17-130), rev’d & remanded , 585 U.S. 237 (2018). 1124-M-1 AF, Tab 7, Initial5
Decision. In June 2018, just after the Supreme Court decided Lucia, the
administrative judge dismissed the appeal a second time “to allow time to further
refine the issues and determine the proper scope of inquiry and action by the
Board.” Flynn v. Securities & Exchange Commission , MSPB Docket No. DC-
1221-14-1124-M-2, Appeal File (1124-M-2 AF), Tab 3, Initial Decision. He
dismissed the appeal without prejudice a third time in October 2018. Flynn v.
Securities & Exchange Commission , MSPB Docket No. DC-1221-14-1124-M-3,
Appeal File (1124-M-3 AF), Tab 2, Initial Decision.
¶11Later in October 2018, the appeal was refiled and reassigned to a new
administrative judge. Flynn v. Securities & Exchange Commission , MSPB
Docket No. DC-1221-14-1124-M-4, Appeal File (1124-M-4 AF), Tab 2. The
agency argued in response to the appellant’s constitutional arguments, in part,
that the appellant had waived those arguments by failing to raise them in his
initial appeal before the administrative judge or in his petition for review of the
initial decision in that case. 1124-M-2 AF, Tab 5; 1124-M-3 AF, Tab 5. The new
administrative judge certified for interlocutory appeal his holding that the
appellant’s constitutional claims were properly before the Board, the Board’s
administrative judges are Officers of the United States whose appointments did
not comply with the Appointments Clause, and the Board lacks authority to
address the appellant’s separation of powers argument because doing so would
require the Board to adjudicate the constitutionality of a statute. 1124-M-4 AF,
Tab 9.
¶12On March 31, 2022, the Board ratified the prior appointments of its
administrative judges. 1124-M-4 AF, Tab 19. That same day, it issued an Order
on the holdings certified for interlocutory review by the administrative judge.
1124-M-4 AF, Tab 20, Order (Mar. 31, 2022) (1124-M-4 Interlocutory Order).
The Board found that (1) the law of the case doctrine prevented relitigating the
appellant’s claims arising out of his Rule 900(a) disclosures, (2) the appellant’s
Appointments Clause claim was moot because the Board had ratified its6
administrative judges’ appointments, and (3) the Board lacked authority to
adjudicate the appellant’s separation of powers claim. Id., ¶¶ 8-12. The Board
returned the appeal to the regional office for further adjudication of the
appellant’s claims arising out of his Rule 900(b) disclosures before a new
administrative judge. Id., ¶ 13.
¶13Following the return of the appeal to the administrative judge, the appellant
sought to engage in additional discovery and requested a new hearing. 1124-M-4
AF, Tab 31 at 5-8. The administrative judge denied these requests on the basis
that the record was sufficiently developed on the issue of whether the appellant
established his prima facie case, and that the Fourth Circuit’s decision indicated
additional evidence may only be needed if the appellant established his prima
facie burden regarding his Rule 900(b) disclosures. 1124-M-4 AF, Tab 37 at 5-6.
After dismissing the appeal without prejudice a fourth time, 1124-M-4 AF,
Tab 38, Initial Decision, the appeal was refiled and, after considering the parties’
closing briefs, the administrative judge issued an initial decision denying
corrective action on the existing record. Flynn v. Securities & Exchange
Commission, MSPB Docket No. DC-1221-14-1124-M-5, Appeal File (1124-M-5
AF), Tabs 1, 3-4, 13, Initial Decision (1124-M-5 ID) at 2, 38. He reasoned that
the appellant did not prove that he reasonably believed the agency violated
Rule 900(b) because, among other things, he did not provide copies of the 900(b)
reports submitted prior to his August 2012 appointment that would support his
claim that they were missing necessary information. 1124-M-5 ID at 27-28. As
for the September 2012 and March 2013 900(b) reports that the appellant did
provide copies of, the administrative judge reasoned that the appellant did not
prove that he reasonably believed the agency violated Rule 900(b) based on the
following: (1) the 900(b) reports contained the date the appeal was filed, from
which the Commission could garner its age; (2) the appellant submitted to the
Commission a supplemental “OGC Pending Cases” report that “cured” or enabled
the Commission to “reasonably gauge” the missing information in the 900(b)7
report, including the age of each case, the procedural posture, and the estimated
completion dates for overdue cases; and (3) the “stale” completion dates that
predated the September 2012 900(b) report constituted minor or inadvertent
miscues. 1124-M-5 ID at 27-37.
¶14The administrative judge also found that the appellant failed to prove that
he reasonably believed that he disclosed a violation of gross mismanagement
when he objected to the Deputy General Counsel’s instruction to delete the
information related to the 7-month “aspirational goal” in Rule 900(a)(1)(iii) that
the appellant had included in the draft March 2013 900(b) report. 1124-M-5 ID at
32-33, 37. The administrative judge reasoned that because the appellant did not
prove that he reasonably believed the 900(b) reports violated Rule 900(b), the
Deputy General Counsel had discretion to reject the appellant’s suggestions and
proposals as a matter of policy under the circumstances. 1124-M-5 ID at 32-33.
¶15The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He has also filed a motion to exceed the word limitation. PFR File,
Tab 2. The agency has opposed the appellant’s petition and motion, and the
appellant has filed a reply. PFR File, Tabs 3, 6-7. The appellant has also filed a
motion for leave to request a status report, or alternatively a decision on his
petition for review. PFR File, Tab 9.
DISCUSSION OF ARGUMENTS ON REVIEW
We decline to revisit the appellant’s Appointments Clause and separation of
powers claims, which were decided in the Board’s interlocutory decision.
¶16On review, the appellant reraises his constitutional challenges. As to the
Appointments Clause claim, he reargues that pursuant to the U.S. Supreme
Court’s decision in Lucia, 585 U.S. 237, the Board’s administrative judges do not
have the authority to decide his appeal. PFR File, Tab 1 at 23-24; 1124-M-1 AF,
Tab 2 at 5-9, Tab 6 at 5. He further argues that the Board’s ratification of the
appointment of the administrative judge who decided his appeal on remand was
not sufficient to “appoint” him as required by the Constitution. PFR File, Tab 18
at 23-24. The appellant also seeks to “preserve” his claim that, pursuant to Free
Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477
(2010), the Board’s multiple levels of for-cause removal procedures for an
administrative judge violate the separation of powers requirements under the
Constitution. PFR File, Tab 1 at 24; 1124-M-1 AF, Tab 2 at 9. As mentioned
above, the Board issued an interlocutory decision during the proceedings on
remand that rejected these challenges. 1124-M-4 Interlocutory Order, ¶¶ 10-12.
The appellant offers no legal or factual basis for revisiting those findings. To the
contrary, in McIntosh v. Department of Defense , 53 F.4th 630, 641 (Fed. Cir.
2022), the U.S. Court of Appeals for the Federal Circuit agreed that any
Appointments Clause issues concerning the Board’s administrative judges had
been remedied by the Board’s ratification of the appointments of its
administrative judges. And we continue to lack the authority to address the
separation of powers issue. Davis-Clewis v. Department of Veterans Affairs ,
2024 MSPB 5, ¶¶ 7-9 (holding that the Board lacks the authority to adjudicate the
constitutionality of the Board’s administrative judges’ statutory removal
protections). Accordingly, we decline to consider these claims further.
The administrative judge erred in finding that the appellant did not establish that
his Rule 900(b) disclosures were protected.
¶17As to the merits of the appellant’s claim of whistleblower reprisal, the
administrative judge concluded that the appellant failed to prove that he made a
protected disclosure that the agency violated Rule 900(b). 1124-M-5 ID at 25-37
To prevail on the merits of an IRA appeal, an appellant must meet his initial
burden of proving by preponderant evidence 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
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).
Karnes v. Department of Justice , 2023 MSPB 12, ¶ 8. The appellant’s9
termination was a personnel action. 0024-W-1 ID at 2; 5 U.S.C. 2302(a)(2)(A)
(iii); McCarty v. Environmental Protection Agency , 108 M.S.P.R. 45, ¶ 13 (2008).
We disagree with the administrative judge.
¶18A protected disclosure is one that an appellant reasonably believes, as
relevant here, evidences any violation of a regulation, such as 17 C.F.R.
§ 201.900. 5 U.S.C. § 2302(b)(8); Mudd v. Department of Veterans Affairs ,
120 M.S.P.R. 365, ¶ 5 & n.3 (2013). The proper test for determining whether an
employee had a reasonable belief that his disclosures were protected is whether a
disinterested observer in his position with knowledge of the essential facts known
to and readily ascertainable by the employee could reasonably conclude that the
actions evidenced any of the conditions set forth in 5 U.S.C. § 2302(b)(8). Mudd,
120 M.S.P.R. 365, ¶¶ 5, 8.
¶19The administrative judge determined that, between October 2012 and
April 2013, the appellant disclosed to the Deputy General Counsel, among others,
that the Adjudication section failed to provide required information to the
Commission in 900(b) in reports that the Adjudication section submitted prior to
the appellant’s arrival in August 2012, as well as in reports prepared after his
arrival, in or around September 2012, and in or around March 2013.5 1124-M-5
ID at 27. Nevertheless, the administrative judge found that the appellant failed to
prove that he had a reasonable belief that the agency committed wrongdoing
described in § 2302(b)(8)(A) with respect to those 900(b) reports. 1124-M-5 ID
at 28, 31, 33, 37.
¶20As to the pre-August 2012 reports, the administrative judge acknowledged
that the appellant’s belief that these reports were noncompliant was based on the
“unrefuted evidence” showing that, around September and October 2012, the
Assistant General Counsel, J.M., informed him that the format and content of the
pre-August 2012 reports was similar to the September 30, 2012 report, on which
5 The 900(b) report for the period ending March 31, 2013, was apparently not filed with
the Commission until sometime in late April 2013. 1124-W-1 IAF, Tab 91 at 140.10
she was asking him to sign off. 1124-M-5 ID at 27; 5/19/15 HT at 111-12
(testimony of the appellant); 1124-W-1 IAF, July 1, 2015 Hearing Transcript
(7/1/15 HT) at 158-60 (testimony of J.M.). Nevertheless, the administrative
judge found that the appellant did not establish that his belief that the
pre-August 2012 reports were noncompliant was reasonable because the appellant
did not introduce copies of pre-August 2012 reports at the hearing, testify about
the missing information contained therein, and show that he provided the Deputy
General Counsel and others with copies of those reports with an explanation of
why they were noncompliant at the time he made his disclosures. 1124-M-5 ID
at 28, n. 32.
¶21The appellant does not have to prove that one of the types of wrongdoing
listed under section 2302(b)(8)(A) actually occurred, only that he reasonably
believed his disclosure evidenced such wrongdoing. See Chavez v. Department of
Veterans Affairs, 120 M.S.P.R. 285, ¶ 18 (2013). We find that a reasonable
person in the appellant’s position with knowledge of the facts known to him could
reasonably conclude that the agency’s actions evidenced a violation of
Rule 900(b). Rule 900(b) requires, in pertinent part, that OGC’s 900(b) reports
“shall describe” certain details about cases that the Commission has not decided
within the requisite time periods. 17 C.F.R. § 201.900(b) (2015). These details
include “the procedural posture of the case,” an “estimated date for conclusion of
the proceeding,” and other information necessary for the Commission to
“reach . . . timely resolution.” Id.
¶22As mentioned above, both the appellant and Assistant General Counsel J.M.
gave unrefuted testimony that J.M. provided the appellant with a draft 900(b)
report for his signature in September 2012. 5/19/15 HT at 111-12 (testimony of
the appellant); 7/1/15 HT at 95-97, 158-60 (testimony of J.M.). At that time, J.M.
explained to the appellant that the Adjudications office had been following this
same reporting format for years. 5/19/15 HT at 111-12 (testimony of the
appellant); 7/1/15 HT at 95-97, 158-60 (testimony of J.M.). We find that the11
appellant’s reliance on this information was reasonable given that the appellant
had only been at OGC for a couple of months and J.M. had been at the agency for
about 25 years, she was the most senior of the three Assistant General Counsels
in OGC, and she was the principal drafter of the 900(b) reports for years. 5/19/15
HT at 112 (testimony of the appellant); 7/1/15 HT at 87-89, 93-94 (testimony of
J.M.). In his hearing testimony, the appellant identified the information he
believed was missing from the September 900(b) Report. 5/19/15 HT at 111-22
(testimony of the appellant). In particular, he noted that some of OGC’s target
dates listed for submitting draft decisions had already passed and the report did
not provide an explanation of the delay for some of the cases. Id. at 116-20
(testimony of the appellant). The September 2012 900(b) report, which is in the
record, is missing for eight overdue cases their age and procedural posture, and
has estimated completion dates for those cases that had already passed. 1124-W-
1 IAF, Tab 89 at 61-64.
¶23During an oral discussion on an unknown date in October 2012, and then in
a follow-up email on October 18, 2012, to the Deputy General Counsel, the
appellant disclosed his belief that OGC’s 900(b) reports, both the
pre-August 2012 reports and the September 2012 report on which he had just
signed off, were not complying with Rule 900(b)’s reporting requirements.
5/19/15 HT at 128-29 (testimony of the appellant), Tab 89 at 36-40, 54-55. He
proposed, among other solutions, that OGC submit a “supplemental Rule 900(b)
report, adding extra detail (as specified in Rule 900(b).” 1224-W-1 IAF, Tab 89
at 55.
¶24The Deputy General Counsel concurred with the appellant’s assessment. On
November 20, 2012, the Deputy General Counsel responded via email to the
appellant’s concerns, “As you suggested, I think it makes sense to prepare the
supplemental 900(b) report -with sufficient information about the overdue cases to
inform the Commission of their current status and the anticipated completion
dates.” Id. at 65-66. The Deputy General Counsel further acknowledged that12
OGC was not updating its target dates for completing draft decisions from one
report to the next, resulting in the September 2012 report reflecting target dates
that had passed. 1124-W-1 IAF, May 20, 2015 Hearing Transcript (5/20/15 HT)
pt. 2 at 72-73 (testimony of the Deputy General Counsel).6 Thus, we find that the
appellant has established that a reasonable person in his position with knowledge
of the facts known to him in October 2012 could have concluded that the
agency’s actions in submitting noncompliant 900(b) reports evidenced one of the
conditions set forth in 5 U.S.C. § 2302(b)(8).
¶25As to the September 2012 and March 2013 900(b) reports, the
administrative judge also found that the appellant did not prove that he
reasonably believed the agency violated Rule 900(b) based on the following
findings: (1) the 900(b) reports contained the date the appeal was filed, from
which the Commission could garner its age; (2) beginning in October 2012, the
appellant submitted a supplemental “OGC Pending Cases” report each month to
the Commission that “cured” or enabled the Commission to “reasonably gauge”
the missing information in the 900(b) report, including the age of each case, the
procedural posture, and the estimated completion dates for overdue cases; and
(3) the “stale” completion dates in the September 2012 900(b) report constituted
minor or inadvertent miscues. 1124-M-4 ID at 27-37. The administrative judge
also found that the appellant failed to prove that he reasonably believed that he
disclosed a violation of gross mismanagement when on April 22, 2013, he
objected to the Deputy General Counsel’s instruction to delete the information
related to the 7-month aspirational goal described in Rule 900(a)(1)(iii) that the
appellant had included in the draft March 2013 900(b) report. 1124-M-4 ID
at 32-33, 37. He reasoned that because the appellant did not prove that he
reasonably believed the 900(b) reports violated Rule 900(b), the Deputy General
Counsel had discretion to reject the appellant’s suggestions and proposals as a
6 The transcript of the testimony from May 20, 2015, consists of two parts, both
containing the same pagination and located in the same tab of the record. Here, we
have cited to part 2 (pt. 2). 13
matter of policy under the circumstances. 1124-M-4 ID at 32-33. In essence, the
administrative judge found that any missing information in the 900(b) reports that
OGC was required to report to the Commission pursuant to Rule 900(b) was
sufficiently cured by the appellant’s monthly “OGC Pending Cases” reports, was
a minor or inadvertent omission, or was subject to the Deputy General Counsel’s
discretion. For the reasons provided below, we disagree.
¶26On review, the appellant challenges the administrative judge’s conclusion
that he began sending the Commissioners a supplemental “OGC Pending Cases”
report beginning in October 2012. PFR File, Tab 1 at 13 n.48, 30. The appellant
contends that, although he originally prepared the OGC Pending Cases report in
October 2012, “the record is silent” as to when he began forwarding it to the
Commissioners. Id. He also states that the version of the report that the
administrative judge references in his decision as “dated October 1, 2012” and the
version the appellant testified about at the hearing were submitted to the
Chairman and the Commissioner in April 2013, and were not circulated in 2012.
Id.; 5/20/15 HT pt. 1 at 10-11 (testimony of the appellant); 1124-M-5 ID at 14
(citing 1124-W-1 IAF, Tab 101 at 72-123). The record below contains more than
one version of the appellant’s OGC Pending Cases report covering the period of
“Oct. 1, 2012 to the present.” The reports are incomplete because they are cut off
at the sides. See, e.g., 1124-W-1 IAF, Tab 92 at 23-74 (submitted Apr. 30, 2013);
Tab 115 at 68-104 (submitted Jan. 31, 2013). The appellant testified that the date
that the report was last updated, or the date of the “snapshot,” is located at the
footer of the reports. 1124-W-1 IAF, 5/20/15 HT pt. 1 at 43 (testimony of the
appellant). The complete version of the OGC Pending Cases report that the
administrative judge cited in the initial decision was updated April 30, 2013, and
therefore, we agree that the evidence does not support the administrative judge’s
finding that the appellant sent it to the Commission in October 2012. 1124-W-1
IAF, Tab 101 at 72-123. 14
¶27Nevertheless, even if the appellant had submitted his OGC Pending Cases
report in the fall of 2012, we still disagree with the administrative judge’s
findings that it sufficiently cures the required missing information in the 900(b)
reports, or that the omissions were otherwise minor miscues or discretionary,
such as to render the appellant’s belief that Rule 900(b) was violated
unreasonable. First, the appellant’s October 2012 OGC Pending Cases report
could not have cured the missing information in the pre-August 2012 900(b)
reports and September 2012 900(b) report, which predate it. Also, the
March 2013 900(b) report is missing the age and procedural posture of the cases.
1124-W-1 IAF, Tab 91 at 65-69.7 Although the appellant’s OGC Pending Cases
report provides the age and procedural posture of the cases, it does not include
the estimated completion date on which the overdue cases will be submitted to the
Commission. 1124-W-1 IAF, Tab 101 at 72-123.
¶28There is no de minimus exception under 5 U.S.C. § 2302(b)(8) for
disclosures involving a violation of regulation. Fisher v. Environmental
Protection Agency , 108 M.S.P.R. 296, ¶ 9 (2008); see El v. Department of
Commerce, 123 M.S.P.R. 76, ¶ 9 (2015) (concluding that an appellant’s alleged
disclosure that an agency exceeded a regulation that required that it reimburse
him for travel within 30 days was a nonfrivolous allegation of a violation of law,
rule, or regulation), aff’d per curiam , 663 F. App’x 921 (Fed. Cir. 2016).
7 The March 2013 900(b) report is erroneously titled “Pending Cases as of 11/30/2012,”
instead of “Pending Cases as of 3/31/2013.” 1124-W-1 IAF, Tab 91 at 66. Also, it is
not entirely clear from the record which version of the March 2013 900(b) report was
ultimately submitted to the Commission. On April 22, 2013, after meeting with the
Deputy General Counsel and revising the report per his instructions, the appellant
emailed the revised draft to J.M. Id. at 65. Then, on April 24, 2013, the appellant and
the Deputy General Counsel met again to discuss the “aggressive” estimated completion
dates in the April 22nd draft. Id. at 141. In anticipation of that meeting, the appellant
attached the March 2013 900(b) report with some added written commentary directed to
the Deputy General Counsel as to why he felt the estimated completion dates were
realistic. Id. at 141-46. In any event, for the reasons explained below, we find that
neither version of this March 2013 900(b) report contains all the required information in
Rule 900(b). 15
Therefore, the administrative judge erred in suggesting that disclosures of
violations of Rule 900(b) were not protected because the Commission could
extrapolate from the 900(b) reports that certain cases not identified as delayed
were late, and that providing dates that had already passed as target dates were
“inadvertent miscues.”
¶29Because we find that the appellant established by preponderant evidence
that he made protected disclosures that the agency’s pre-August 2012,
September 2012, and March 2013 900(b) reports violated Rule 900(b), we need
not address whether he reasonably believed that this disclosure evidenced gross
mismanagement. PFR File, Tab 1 at 17, 31-33; Mudd, 120 M.S.P.R. 365, ¶ 5
(stating that a protected whistleblowing disclosure is a disclosure of a matter that
a reasonable person in the appellant’s position would believe evidenced any one
of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8)).
The appellant met his burden to prove that his disclosure was a contributing
factor in his employment termination.
¶30Because the administrative judge found that the appellant’s disclosures of
Rule 900(b) violations were not protected , he did not reach the issue of whether
the appellant met his burden to prove that his alleged disclosures were a
contributing factor in his removal. We find that he did. One way an appellant
may establish the contributing factor criterion is the knowledge/timing test, under
which he submits evidence showing that the official taking the personnel action
knew of the disclosure or activity and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the disclosure or
activity was a contributing factor in the personnel action. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 63. The Board has held that a
personnel action taken within approximately 1 to 2 years of an appellant’s
disclosures or activity satisfies the timing portion of the knowledge/timing test.
Id. Because the appellant’s disclosures, which began in October 2012 and
continued into early 2013, were made to the Deputy General Counsel, who made16
the decision to terminate the appellant’s employment in May 2013, the appellant
has proved contributing factor under the knowledge/timing test.
This case must be remanded for a determination of whether the agency proved by
clear and convincing evidence that it would have terminated the appellant in the
absence of his whistleblowing disclosures.
¶31The appellant alleges that the Deputy General Counsel’s stated reasons for
terminating the appellant were “pretextual.” PFR File, Tab 1 at 25. Because the
administrative judge found that the appellant did not make a protected disclosure,
he did not reach this issue. 1124-M-5 ID at 37. If, as here, an appellant proves
that his protected disclosure was a contributing factor in the 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
absence of the protected disclosure. 5 U.S.C. § 1221(e); see Salerno v.
Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
¶32In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
whistleblowing, the Board will consider all the relevant factors, including the
following: (1) the strength of the agency’s evidence in support of its action;
(2) the existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision; and (3) any evidence that the agency
takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. Carr v. Social Security Administration , 185 F.3d
1318, 1323 (Fed. Cir. 1999). Once an appellant establishes his prima facie case,
the determination as to whether the agency met its burden by clear and
convincing evidence requires additional factual findings and may require
credibility determinations. Gonzales v. Department of Transportation ,
109 M.S.P.R. 250, ¶¶ 21-22 (2008). Such findings are properly made in the first
instance by the administrative judge, who was able to observe the demeanor of
witnesses at hearing. Id., ¶ 22. We therefore remand this appeal to the17
administrative judge for a determination of whether the agency made the required
showing by clear and convincing evidence. Id. Because the appellant disputes
the agency’s reasons in support of his removal, and the Board in its interlocutory
decision assigned this appeal to a different administrative judge than the one who
held the hearing, on remand the administrative judge should accept evidence and
argument and hold a supplemental hearing on the limited issue of whether the
agency met its burden. See Lin v. Department of the Air Force , 2023 MSPB 2, ¶
24 (holding that when there is conflicting testimony on a material issue, and a
new administrative judge will decide the case, the testimony should be heard
again by the new administrative judge to permit her to make credibility
determinations based on witness demeanor).
¶33We recognize that many years have passed during the processing of this
appeal, and the parties engaged in extensive discovery and had a 3-day hearing,
and therefore, the record below is voluminous. Nevertheless, the appellant has
consistently objected to the first administrative judge’s rulings on discovery
motions and has sought to engage in additional discovery. See, e.g., 1124-W-1
PFR File, Tab 5 at 27-28, 38-40, 1124-M-4 AF, Tab 31 at 5-8; Flynn, 877 F.3d
at 208-09. The administrative judge declined those requests on the basis that the
Fourth Circuit’s decision indicated additional evidence may only be needed if the
appellant established his prima facie case regarding his Rule 900(b) disclosures.
1124-M-4 AF, Tab 37 at 5-6; Flynn, 877 F.3d at 208-09. We make no finding
here as to whether the first administrative judge abused his considerable
discretion in rulings on discovery matters; however, on remand, if the
administrative judge determines that any of the excluded discovery is relevant to
adjudicating the limited issue of whether the agency met its burden by clear and
convincing evidence, he may allow it.
¶34Lastly, the appellant alleges that the administrative judge previously
assigned to the appeal abused his discretion in excluding several of his hearing
exhibits without providing a “meaningful analysis” as to why they were18
irrelevant. PFR File, Tab 1 at 25-28. Specifically, he alleges that the
administrative judge improperly excluded the Rule 900(b) report OGC filed in
March 2012, documents discussing Rule 900(b)’s administrative history, and
excerpts of J.M.’s deposition testimony. Id. at 25-26. In light of this remand
order, we find that any error by the administrative judge in excluding the
appellant’s hearing exhibits was not harmful. See 5 C.F.R. § 1201.115(c)
(providing that an administrative judge’s abuse of discretion warrants review only
if such error affected the outcome of the case). Moreover, the appellant can
request to submit documents relevant to the Carr factors on remand.8
ORDER
¶35For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
8 Because we are granting the appellant’s petition for review and remanding the appeal,
we deny as unnecessary the appellant’s motion to exceed the word limit and motion for
leave to request a status report or a decision on his petition for review. PFR File,
Tab 2, 9. 5 C.F.R. § 1201.114(a)(5).19 | Flynn_Rory_C_DC-1221-14-1124-M-5_Remand_Order.pdf | 2024-11-14 | RORY C. FLYNN v. SECURITIES AND EXCHANGE COMMISSION, MSPB Docket No. DC-1221-14-1124-M-5, November 14, 2024 | DC-1221-14-1124-M-5 | NP |
366 | https://www.mspb.gov/decisions/nonprecedential/Cordova_Robert_L_DE-0752-21-0154-I-3_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT L. CORDOVA,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DE-0752-21-0154-I-3
DATE: November 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Casey J. Leier , Esquire, Denver, Colorado, for the appellant.
Lynn Stoppy , Esquire, and Adam W. Boyer , Kansas City, Kansas,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The agency has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision in this removal appeal, which sustained the
charge of discreditable behavior, found that the appellant failed to prove his
affirmative defenses, and mitigated the removal penalty to a 21-day suspension.
For the reasons discussed below, we DENY the petition for review and cross
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
petition for review.2 We AFFIRM the initial decision except as expressly
MODIFIED as to the administrative judge’s analyses of the appellant’s First
Amendment, due process, and discrimination claims, as well as the penalty .
Nevertheless, the administrative judge’s mitigation of the removal action to a
21-day suspension is AFFIRMED.
BACKGROUND
¶2The agency’s Bureau of Prisons (BOP) employed the appellant as a GS-11
Supervisory Correctional Officer at the Federal Correctional Complex (FCC) in
Florence, Colorado. Cordova v. Department of Justice, MSPB Docket No. DE-
0752-21-0154-I-1, Initial Appeal File (IAF), Tab 13 at 12. He also worked as a
Special Investigative Service (SIS) Lieutenant, and in that capacity, he was tasked
with validating prisoners’ gang affiliations and regularly received training about
criminal gang activity inside and outside of the prison. Cordova v. Department of
Justice, MSPB Docket No. DE-0752-21-0154-I-2, Appeal File (I-2 AF),
February 23, 2022 Hearing Transcript (HT 1) at 10-11 (testimony of a Special
Investigative Agent). The agency has identified the Bandidos Motorcycle Club
(the Bandidos) as a group that conducts criminal activity both within and outside of
prisons. Id. at 10-11, 18 (testimony of the Special Investigative Agent); I-2 AF,
February 24, 2022 Hearing Transcript (HT 2) at 10-11 (testimony of the deciding
official). As such, the agency considered the Bandidos a Security Threat Group
(STG). HT 1 at 10-11, 18-20 (testimony of the Special Investigative Agent).
¶3On January 4, 2021, the agency proposed the appellant’s removal based on a
charge of discreditable behavior. IAF, Tab 13 at 28-31. In support of its charge,
the agency alleged that it discovered YouTube videos posted by the appellant in
which he was photographed posing with members of the Bandidos. Id. at 28-30.
2 At the time of the appellant’s filing of his pleadings on review, the Board’s regulation
expressly allowed a party to file a cross petition for review. 5 C.F.R. § 1201.114
(2023). The Board revised this regulation, effective October 7, 2024, removing
references to a cross petition for review but still allowing both parties to file a petition
for review. 5 C.F.R. § 1201.114.2
The appellant provided both an oral and a written response to the proposal, in
which he acknowledged that he had been photographed with individuals who had
been identified as Bandidos members. Id. at 20-24. However, he explained that
the photographs were taken as part of an annual charitable motorcycle run that he
had set up to memorialize his stepson, who was tragically murdered in 2015 by a
gang member in a case of mistaken identity. Id. at 20-24, 39. The motorcycle run
was held between 2017 and 2019 and raised money for scholarships. Id. at 39.
The appellant acknowledged that he was aware that some Bandidos members
attended the events, which were open to the public, but he denied that he
knowingly associated with individuals engaging in criminal activity or that he
engaged in or endorsed criminal activity. Id. at 23-24. After considering the
appellant’s replies, the deciding official issued a decision letter sustaining the
charge and the removal penalty. Id. at 16-19.
¶4The appellant timely filed a Board appeal challenging his removal. IAF,
Tab 1. After holding the appellant’s requested hearing, I-2 AF, Tabs 42, 46, 48, the
administrative judge issued an initial decision that sustained the charge of
discreditable behavior and found a nexus between the charge and the efficiency of
the service, but mitigated the removal penalty to a 21-day suspension as the
maximum reasonable penalty, Cordova v. Department of Justice, MSPB Docket
No. DE-0752-21-0154-I-3, Appeal File (I-3 AF), Tab 26, Initial Decision (ID)
at 1-2, 8-12, 17-25. The administrative judge also concluded that the appellant
failed to establish any of his affirmative defenses. ID at 12-17.
¶5The agency has filed a petition for review of the initial decision, arguing
that the administrative judge erred by mitigating the removal penalty. Petition for
Review (PFR) File, Tab 1. The appellant has filed a response to the petition for
review and a cross petition for review. PFR File, Tabs 5-6. In his cross petition
for review, the appellant argues that the agency did not prove its charge, reasserts
his affirmative defenses that the agency violated his rights under the First
Amendment and his right to due process and discriminated against him based on3
race, disagrees with the administrative judge’s conclusion that the agency proved
a nexus between his misconduct and the efficiency of the service, and alleges that
the administrative judge made erroneous rulings on discovery and witnesses. PFR
File, Tab 5. The agency has responded to the appellant’s cross petition for
review. PFR File, Tab 8.3
DISCUSSION OF ARGUMENTS ON REVIEW
We deny the appellant’s cross petition for review.
The administrative judge correctly sustained the charge.
¶6In his cross petition for review, the appellant asserts that the administrative
judge erred by finding that the agency met its burden of proving the discreditable
behavior charge and argues that the photographs he posted with Bandidos
members were improperly taken out of context and there was no evidence that
anyone perceived the agency in a negative light or that the agency suffered any
adverse effects due to the alleged misconduct. PFR File, Tab 5 at 10-12. We are
not persuaded. The Board has not required that an agency identify negative
publicity as an element of the charge of discreditable conduct, and we decline to
add such an element here. See Faitel v. Veterans Administration , 26 M.S.P.R.
465, 469-70 (1985) (referencing the perceptions of a witness that he believed the
appellant was kidding when the appellant made the alleged offending statement in
affirming an administrative judge’s finding that an agency did not prove that the
statement discredited the appellant or the agency); Ott v. Department of the Army ,
3 The administrative judge ordered the agency to provide interim relief as of the date of
the issuance of the initial decision. ID at 26-27. With its petition for review, the
agency submitted a certification of its compliance with the interim relief order along
with evidence that it returned the appellant to duty effective January 15, 2023. Petition
for Review File (PFR), Tab 1 at 1, 19-21; see 5 C.F.R. § 1201.116(a). In response, the
appellant questions whether the agency has fully complied with its interim relief
obligation. PFR File, Tab 6 at 4. Because we deny the agency’s petition for review and
affirm the initial decision, the issue of the agency’s compliance with the interim relief
order is now moot. Any issue of compliance with the Board’s final order may be raised
to the regional office in accordance with 5 C.F.R. § 1201.181.4
20 M.S.P.R. 90, 91-92 (concluding, without discussing whether the conduct
resulted in notoriety, that removal was an appropriate penalty for the charges of
failure to follow instructions and bringing discredit on the agency based upon an
appellant’s unauthorized representations to a volunteer that the agency would pay
her), aff’d, 758 F.2d 667 (Fed. Cir. 1984) (Table).
¶7As the administrative judge correctly observed, like a charge of “conduct
unbecoming,” a charge of “discreditable behavior” is a general charge and has no
specific elements of proof; it is established by proving that the appellant
committed the acts alleged in support of the broad label. ID at 9; see Canada v.
Department of Homeland Security , 113 M.S.P.R. 509, ¶ 9 (2010) (concluding that
a charge of “conduct unbecoming” has no specific elements of proof; it is
established by proving that the employee committed the acts alleged in support of
the broad label). The agency’s Standards of Employee Conduct do not explicitly
define the word “discredit;” however, they state that employees are required to
“[c]onduct themselves in a manner that fosters respect for the [BOP].” IAF,
Tab 16 at 49-68. Consistent with this expectation, the common meaning of
“discreditable” is “injurious to reputation” or “disgraceful.” Merriam-Webster’s
Collegiate Dictionary 331 (10th ed. 2002). Consistent with this definition, the
administrative judge concluded that the appellant’s conduct created a perception
among agency officials that he had been compromised. ID at 9-11. For the
reasons discussed below, we agree.
¶8The appellant does not dispute that, as alleged by the agency, he posted a
YouTube video that contained photographs in which he posed with members of
the Bandidos. PFR File, Tab 5 at 7. He also does not disagree with the
administrative judge’s conclusion that he was aware that he posted photos of
himself with Bandidos members and that the Bandidos was on the agency’s STG
list. ID at 9-10. His argument is that his actions were not discreditable because
the photos were among others included in the video that did not have Bandidos5
members and the agency failed to produce evidence that there was any damage to
its reputation. PFR File, Tab 5 at 10-11; IAF, Tab 13 at 46-56.
¶9The appellant’s claim is belied by the fact that the agency began
investigating his misconduct after it received an anonymous envelope that
contained the photos. HT 1 at 18 (testimony of the Special Investigative Agent);
IAF, Tab 13 at 46-56. The employee who received the photos recognized that
they included members of the Bandidos. HT 1 at 18-20 (testimony of the Special
Investigative Agent). He reported the pictures to wardens at two BOP
institutions, and one of the wardens referred the matter to the agency’s Office of
Internal Affairs (OIA). Id. at 20-22, 28-29 (testimony of the Special Investigative
Agent). This chain of events supports the conclusion that an anonymous
individual within or outside the BOP felt that the appellant’s conduct called the
BOP’s reputation into question and that, once known to the agency, it also viewed
the appellant’s conduct as potentially damaging. Therefore, we decline to disturb
the administrative judge’s finding that the appellant brought discredit to the
agency by posting pictures of himself with members of the Bandidos.
The agency did not violate the appellant’s First Amendment rights.
¶10On review, the appellant reargues that the agency’s decision to discipline
him for his wholly off-duty actions infringed on his First Amendment freedoms of
speech, association, and religion. PFR File, Tab 5 at 12-17. The administrative
judge thoroughly considered the appellant’s arguments regarding his freedom of
speech and association rights, acknowledging that the Supreme Court has
recognized that public employees, like the appellant, enjoy constitutionally
protected interests in these freedoms, Connick v. Myers , 461 U.S. 138, 142
(1983); Pickering v. Board of Education , 391 U.S. 563, 568 (1968), but that those
rights must be balanced against “the employer’s interest in maintaining an
efficient workplace,” ID at 11 (quoting Shahar v. Bowers , 114 F.3d 1097, 1112
(11th Cir. 1997) (en banc) (Tjoflat, J., concurring)); see Smith v. Department of
Transportation, 106 M.S.P.R. 59, ¶ 46 (2007). In addressing the issue of whether6
employee speech is protected by the First Amendment, the Board must determine
(1) whether the speech addressed a matter of public concern and, if so,
(2) whether the agency’s interest in promoting the efficiency of the service
outweighs the employee’s interest as a citizen. Smith, 106 M.S.P.R. 59, ¶ 46.
¶11The administrative judge implicitly found that the appellant’s speech
addressed a matter of public concern. ID at 11. We discern no reason to disturb
this implicit finding, which the parties do not dispute on review. After applying
the balancing test set forth by the Supreme Court in Pickering, the administrative
judge determined that the agency’s interest in preventing its officers from
creating the impression that they might be compromised by criminal entities
significantly outweighed “the appellant’s interest in his relationships with
members of the Bandidos.” ID at 11-12; see Smith, 106 M.S.P.R. 59, ¶¶ 45-49
(applying the Supreme Court’s Pickering balancing test to the appellant’s First
Amendment claim).
¶12The appellant argues that his free speech and association interests more
broadly included his pursuit of charitable fundraising. PFR File, Tab 5 at 15-16.
As he observes, “charitable appeals for funds . . . involve a variety of speech
interests—communication of information, the dissemination and propagation of
views and ideas, and the advocacy of causes—that are within the protection of the
First Amendment.” Id. (quoting Village of Schaumberg v. Citizens for a Better
Environment, 444 U.S. 620, 632 (1980)). Here, the appellant posted the videos
containing the photographs at issue to promote a motorcycle run. IAF, Tab 13
at 40. That run, in turn, was to honor his stepson and “raise money for
scholarship programs so that young people can pursue educational opportunities
and break the cycle of poverty and being underprivileged.” Id. at 21-22, 40;
I-2 AF, February 28, 2022 Hearing Transcript (HT 3) at 84-85 (testimony of the
appellant). The agency has not disputed that the appellant’s purpose was, at least
in part, charitable in nature. PFR File, Tab 8 at 5-6. Therefore, to the extent that
the administrative judge suggested that the appellant’s interest as a citizen was7
limited to associating with Bandidos members, we modify the initial decision to
recognize his broader charitable interests and desire to honor his stepson.4
¶13Nonetheless, we are not convinced that these private interests outweigh
those of the Government. The Government’s interests include “whether the
statement impairs discipline by superiors or harmony among coworkers, has a
detrimental impact on close working relationships for which personal loyalty and
confidence are necessary, or impedes the performance of the speaker’s duties or
interferes with the regular operation of the enterprise.” Rankin v. McPherson ,
483 U.S. 378, 388 (1987) (citing Pickering, 391 U.S. at 570-73). A law
enforcement officer’s First Amendment rights are much narrower than those of
other kinds of public employees. Chambers v. Department of the Interior ,
103 M.S.P.R. 375, ¶ 37 (2006) (citing, among other cases, O’Donnell v. Barry ,
148 F.3d 1126, 1135 (D.C. Cir. 1998) (“because of the special degree of trust and
discipline required in a police force there may be a stronger governmental interest
in regulating the speech of police officers than in regulating the speech of other
governmental employees”)), aff’d in part, vacated and remanded in part on other
grounds, 515 F.3d 1362 (Fed. Cir. 2008). The First Amendment rights of a
supervisory law enforcement officer are even more limited than the narrow rights
of rank-and-file officers. Id. (citations omitted); see Brown v. Department of
Transportation, 735 F.2d 543, 547-48 (Fed. Cir. 1984) (considering a public
employee’s supervisory position as weighing in favor of the agency’s interests
under Pickering). The reason for allowing greater restraints on the speech of law
enforcement officers than on other kinds of public employees is that law
enforcement work requires a high degree of discipline and harmony among
officers; confidentiality; protection of close working relationships that require
loyalty and confidence; minimal disruption to the public safety mission; and
4 To the extent that the appellant generally states on review that his videos were “anti-
gang,” he has not pointed to any evidence that he raised this argument below or that it is
based on new evidence that was not previously available. PFR File, Tab 5 at 16.
Therefore, we have not considered this argument further.8
fostering uniformity and esprit de corps. Chambers, 103 M.S.P.R. 375, ¶ 37
(citations omitted); see, e.g., Oladeinde v. City of Birmingham , 230 F.3d 1275,
1293 (11th Cir. 2000) (“In a law enforcement agency, there is a heightened need
for order, loyalty, morale and harmony, which affords a police department more
latitude in responding to the speech of its officers than other government
employers”) (citations omitted).5
¶14The appellant was a Lieutenant in SIS, a department within the BOP
responsible for identifying prisoners’ affiliations with STGs and providing annual
training to BOP staff on STGs. HT 1 at 12-13 (testimony of the Special
Investigative Agent); HT 2 at 10-11, 31 (testimony of the deciding official). As
an SIS Lieutenant, the appellant held a “prominent position” and “served as a
liaison between the Agency and outside law enforcement” on gang activity. HT 2
at 31 (testimony of the deciding official). In removing the appellant, the deciding
official observed that the appellant was “a federal law enforcement officer . . .
responsible for supervising, protecting and caring for staff and the inmate
population, and maintaining and enhancing the security of the institution.” IAF,
Tab 13 at 17. She also expressed concern that the appellant had lost the
“confidence” of his superiors and that his public posting of photos of himself with
Bandidos members could “negatively impact” the agency’s reputation. Id. In
sum, the appellant’s posting of photographs with the members of an STG was
antithetical to the agency’s mission and his specific duties, undermined him as a
supervisor and law enforcement officer, and ultimately posed a risk to the safety
of inmates and staff. While we acknowledge the validity of the appellant’s
interests in honoring his stepson and raising money for scholarships, we find that
those interests are outweighed by the agency’s interests in the security of inmates
and staff.
5 Because we are persuaded by the reasoning in Oladeinde, we rely on that decision here.
See Moncada v. Executive Office of the President, Office of Administration , 2022 MSPB
25, ¶ 17 n.6. 9
¶15The appellant also argues that the agency’s restriction on his freedom of
association was overly broad because it punished him for “guilt by association”
despite his lack of support for the Bandidos. PFR File, Tab 5 at 13-14; I-2 AF,
Tab 51 at 18. The Government may not punish employees “who join an
organization but do not share its unlawful purposes and who do not participate in
its unlawful activities.” Elfbrandt v. Russell , 384 U.S. 11, 17-19 (1966).
Restrictions on joining organizations must be “narrowly drawn” by requiring
“‘specific intent’ to further the illegal aims of the organization.” Id. at 18-19
(citation omitted).
¶16We are not convinced. The reasoning in Elfbrandt does not apply here
because the agency did not punish the appellant for being a member of the
Bandidos. In the proposed removal, the agency recognized that “it is reasonable
and not unusual that while attending events such as . . . . memorial rides for
fundraising events . . . that photos will be taken.” IAF, Tab 13 at 29. However, it
faulted the appellant for posing for photos with Bandidos members and posting
those photos “to advertise for [his] fundraising events.” Id. at 28-29. Because he
was not punished for membership, the appellant’s argument that other employees
were also improperly punished for associational activity is not material to his
freedom of association claim. PFR File, Tab 5 at 14-15.
¶17Regarding the appellant’s argument that the agency violated his First
Amendment religious free exercise rights by taking the challenged action, the
administrative judge did not analyze this argument, and so we take the
opportunity to do so here.6 We modify the initial decision to incorporate our
analysis of this claim.
¶18The appellant argued below and reargues on review that as a devout
Catholic, the tenets of his religious beliefs require that he exercise forgiveness
and not condemn or judge others, and that these religious beliefs required him to
6 Although the appellant withdrew his affirmative defense of religious discrimination,
I-2 AF, Tab 51 at 20, his argument that the agency’s actions violated his right to free
exercise of his religion is a distinct argument.10
show acceptance toward gang members and potential criminals and to not exclude
them, including by permitting them to take part in the annual charity events.
I-2 AF, Tab 22 at 5, Tab 51 at 5, 24; HT 3 at 6, 36-37 (testimony of the
appellant).
¶19The appellant also cites the recent decision in Kennedy v. Bremerton School
District, 597 U.S. 507 (2022), in which the Supreme Court held that a school
district’s decision to suspend a public high school football coach for refusing to
cease offering a midfield prayer at the end of each game violated his religious
free exercise rights under the First Amendment. I-3 AF, Tab 13; PFR File, Tab 5
at 12-17. The appellant argues that Kennedy stands for the proposition that, in
order to burden an employee’s sincerely held religious beliefs, the Government
must satisfy “strict scrutiny” by showing that its chosen course of action was
justified by a compelling government interest and was narrowly tailored in
pursuit of that interest. Kennedy, 597 U.S. at 525 (citing Church of Lukumi
Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 546 (1993)). The appellant
argues that because he was photographed with the Bandidos members in pursuit
of his religious beliefs of acceptance and forgiveness and because the agency
could have taken a less restrictive action than removing him, such as by requiring
that he put a disclaimer on the videos denouncing any association to the agency,
the agency’s removal action failed to satisfy the stringent requirements of strict
scrutiny and must be reversed. PFR File, Tab 5 at 16-17.
¶20The appellant’s argument relies on a fundamental misinterpretation of the
court’s free exercise jurisprudence. As set forth in Kennedy, under the Court’s
free exercise precedent, to trigger strict scrutiny, the appellant must first show
that the Government burdened his religious practices pursuant to a policy that is
not “neutral” or “generally applicable.” Kennedy, 597 U.S. at 525-27;
Employment Division, Department of Human Resources of Oregon v. Smith ,
494 U.S. 872, 878-89 (1990), superseded by statute on other grounds as
recognized by Ramirez v. Collier , 595 U.S. 411 (2022). Unlike in Kennedy, in11
which the Court determined that the government’s policies were at least in part
directed at restricting the employee’s religious practices, here, the appellant has
not alleged and there is no evidence in the record suggesting that the agency’s
policy was not “neutral” or “generally applicable,” or was directed at his religious
practices in any way. Kennedy, 597 U.S. at 526-27. Accordingly, the appellant’s
reliance on Kennedy is misplaced.
¶21The proposing official recommended removal on the basis that the appellant
violated the provision of the Standards of Employee Conduct cited above. IAF,
Tab 13 at 29. That provision required that employees avoid discrediting the BOP.
IAF, Tab 13 at 29, Tab 16 at 53. Because this standard is neutral and generally
applicable, “rational basis” review applies, under which the appellant’s free
exercise claim will fail if the Government can demonstrate that its rule is
rationally related to a legitimate government purpose. Parents for Privacy v.
Barr, 949 F.3d 1210, 1238 (9th Cir. 2020);7 Puglisi v. United States , 564 F.2d
403, 409 (Ct. Cl. 1977). As the administrative judge correctly concluded in
analyzing the appellant’s freedom of speech and freedom of association claims,
the agency has a legitimate interest in preventing its officers from creating the
impression that they might be compromised by criminal entities, and the appellant
has not offered any evidence or argument to the contrary. ID at 11-12. Based on
the foregoing, we conclude that the administrative judge properly sustained the
charge of discreditable behavior.
The agency did not violate the appellant’s due process rights.
¶22The appellant also argues in his cross petition for review that the
administrative judge erred by denying his due process affirmative defense. PFR
File, Tab 5 at 20-21. Specifically, the appellant argues that in sustaining the
discreditable conduct charge, the deciding official received and considered
7 While decisions of the U.S. Court of Appeals for Federal Circuit are controlling
authority for the Board, other circuit courts’ decisions are considered persuasive, but
not controlling, authority. Moncada, 2022 MSPB 25, ¶ 17 n.6. We are persuaded by
the reasoning in Parents for Privacy.12
photographs and materials that were not included in the appellant’s YouTube
videos. Id. He asserts that these additional materials were prejudicial and
intended to improperly influence the deciding official, constituting a due process
violation. Id. The appellant also argues that the administrative judge erred by
crediting the deciding official’s testimony that, although she received a copy of a
report prepared by the agency’s OIA investigating the appellant’s potential
misconduct that was not included in the materials provided to the appellant, she
did not read the report or consider it as part of the removal decision. Id. at 21; ID
at 14.
¶23As to the appellant’s argument that the deciding official considered images
that the appellant did not post, the appellant raised this argument below. PFR
File, Tab 5 at 8, 20-21; I-2 AF, Tab 51 at 11-12; I-3 AF, Tab 21 at 15. Because
the administrative judge did not address this argument, we do so here. We
discern no due process error.
¶24Due process requires that an agency provide an appellant with an
explanation of its evidence before making its removal decision. Rawls v. U.S.
Postal Service, 94 M.S.P.R. 614, ¶ 20 (2003) (citing Gilbert v. Homar , 520 U.S.
924, 929 (1997) (stating that the “pretermination process need only include oral
or written notice of the charges, an explanation of the employer’s evidence, and
an opportunity for the employee to tell his side of the story”) (citing Cleveland
Board of Education v. Loudermill , 470 U.S. 532, 545-46 (1985) (citation
omitted))), aff’d per curiam , 129 F. App’x 628 (Fed. Cir. 2005). This
requirement is met when the proposed removal provides the appellant with the
specific facts and circumstances underlying the charge against him and he has an
opportunity to make a meaningful response. Chin v. Department of Defense ,
2022 MSPB 34, ¶ 19; see Mattison v. Department of Veterans Affairs ,
123 M.S.P.R. 492, ¶¶ 12-13 (2016) (concluding that due process requirements
were met when the agency provided the appellant with notice of the charges13
underlying his indefinite suspension, an explanation, access to the evidence the
deciding official would consider, and an opportunity to respond).
¶25The agency provided the four images in question to the appellant and the
deciding official with the proposal notice. IAF, Tab 13 at 25-26, Tab 16 at 9-12;
HT 1 at 26-27, 63-66 (testimony of the Special Investigative Agent); HT 2 at 16,
19 (testimony of the deciding official). From their content, it is evident that they
are stock images of Mexican Mafia and Los Sureños gang symbols and tattoos
rather than images related to the appellant’s specific activities. IAF, Tab 16
at 9-12; HT 1 at 63-67 (testimony of a Special Investigative Agent). The
deciding official’s testimony reflects that she understood a set of 18 images,
which included these four images, were from the appellant’s online postings.
HT 2 at 16, 19, 80-82 (testimony of the deciding official). However, the
appellant’s attorney did not question the deciding official specifically about the
four images in question. Therefore, it is unclear if her general understanding of
where the images came from included those four.
¶26Neither the proposed removal nor the removal decision alleged that the
appellant participated in gang activity, was a member of a gang, or was associated
with the Mexican Mafia or Los Sureños. IAF, Tab 13 at 16-19, 28-30. Even
assuming the deciding official mistakenly believed the four images were posted
by the appellant, the proposed removal and removal decision did not rely on or
cite to activity reflected in these images. IAF, Tab 13 at 16-19, 28-30. Nor did
the appellant elicit any testimony from the deciding official suggesting she
considered them to be material to her decision, which specified that the appellant
posted images with members of the Bandidos. Id. Thus, we are not persuaded
that the appellant was unable to respond to these images or that the deciding
official weighed that without notifying the appellant of their significance.
¶27Similarly, to the extent that the appellant argues that these materials were
provided to the deciding official in error, he has not shown that any error
substantially prejudiced his rights such that the outcome was probably affected.14
See Chin, 2022 MSPB 34, ¶ 18 (observing that it is the appellant’s burden to
prove that a procedural error occurred and that the error substantially prejudiced
his rights such that the outcome was probably affected). We modify the initial
decision to find that the agency did not violate the appellant’s due process rights
or commit harmful error by providing the four images in question to the deciding
official.
¶28In connection with his second due process argument, the appellant asserts
that the deciding official relied on an OIA report that the agency did not provide
to him until after he was removed. PFR File, Tab 5 at 21; I-2 AF, Tab 51
at 20-21. We discern no error in the administrative judge’s decision to credit the
deciding official’s testimony stating that although she received the OIA report by
email, she did not read it or rely on it in making the removal decision. ID at 14.
¶29A deciding official violates an employee’s due process rights when she
relies upon new and material ex parte information as a basis for her decisions on
the merits of a proposed charge or the penalty to be imposed. Lange v.
Department of Justice , 119 M.S.P.R. 625, ¶ 8 (2013) (citing Norris v. Securities
and Exchange Commission , 675 F.3d 1349, 1353-54 (Fed. Cir. 2012) (“A
deciding official’s knowledge of an employee’s background only raises due
process or procedural concerns where that knowledge is a basis for the deciding
official’s determinations on either the merits of the underlying charge or the
penalty to be imposed”) (citing Ward v. U.S. Postal Service , 634 F.3d 1274, 1280
(Fed. Cir. 2011))). The requirements of due process are triggered when the
deciding official actually considers this information without notifying the
employee. Lange, 119 M.S.P.R. 625, ¶¶ 11, 15. When a deciding official knows
or is aware of the information but does not consider it, the employee’s due
process rights are not implicated. Id.
¶30The Board must give deference to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on the observation of
the demeanor of witnesses testifying at a hearing; the Board may overturn such15
determinations only when it has “sufficiently sound” reasons for doing so. Haebe
v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). Even if an
administrative judge does not discuss a witness’s demeanor, the Board must defer
to her findings when they are “necessarily intertwined with issues of credibility
and an analysis of [a witness’s] demeanor at trial.” See Purifoy v. Department of
Veterans Affairs , 838 F.3d 1367, 1372-73 (Fed. Cir. 2016) (holding that the Board
erred in failing to defer to an administrative judge’s determination that a
petitioner had rehabilitative potential when the administrative judge’s finding was
based “at least in part” on the petitioner’s hearing testimony that he had
participated in treatment for the substance abuse that led to his unexcused
absences without relapse and that he cared about his job).
¶31In crediting the deciding official’s testimony on this point, the
administrative judge made specific credibility findings, relying on the Board’s
decision in Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987).
Although she did not expressly discuss the deciding official’s demeanor, the
administrative judge’s decision to credit her testimony was intertwined with her
determination that the deciding official did not violate the appellant’s due process
rights because she did not consider the OIA report. ID at 13-14. Accordingly, we
conclude that the administrative judge did not err by denying the appellant’s due
process affirmative defense.8
We agree with the administrative judge that the appellant failed to prove
his Title VII discrimination affirmative defenses, but we clarify the basis
for that finding.
¶32In his cross petition for review, the appellant argues that the administrative
judge erred in finding that the appellant did not prove his race and national origin
8 The appellant does not challenge the administrative judge’s determination that the
deciding official’s receipt of the OIA report was not harmful error, and we discern no
basis to disturb that finding. ID at 14.16
discrimination claims. PFR File, Tab 5 at 17-19. We affirm the administrative
judge’s determination as modified here.9 ID at 14-17.
¶33An appellant may prove discrimination based on evidence of “suspicious
timing, ambiguous statements oral or written, behavior toward or comments
directed at other employees in the protected group, and other bits and pieces from
which an inference of discriminatory intent might be drawn,” also known as
“convincing mosaic.” Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶ 24 (quoting Troupe v. May Department Stores Co. , 20 F.3d 734, 737 (7th
Cir. 1994). The appellant argues that he proved discrimination based on what he
identifies as the deciding official’s “incompetence” and “irregularities.” PFR
File, Tab 5 at 18-19. He provides a number of examples, such as the deciding
9 The administrative judge appears to have applied a burden-shifting analysis to the
appellant’s discrimination claim. ID at 14-17. However, she did not identify any facts
that gave rise to an inference of discrimination, and she determined that the appellant
did not prove that the deciding official was “motivated by a discriminatory animus.” Id.
at 16-17. To the extent that the administrative judge suggested otherwise, we clarify
that her factual findings amount to a determination that the appellant did not prove that
his race or national original were motivating factors in his removal. See Wilson v.
Small Business Administration , 2024 MSPB 3, ¶¶ 13-14, 16-17 (explaining that in order
to prove that discrimination was the but-for cause of an agency’s action using the
burden-shifting framework in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 -04
(1973), an employee must first present at least some circumstantial evidence of
discrimination); see Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282
(1984) (holding that an adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision). The appellant alleged
discrimination based on race and national origin. I-2 AF, Tab 22 at 5, Tab 51 at 19-20.
Although he generally reasserts his national origin discrimination claim on review, he
provides no specific arguments concerning the merits of that claim. PFR File, Tab 5
at 17-19. Except as clarified here, we discern no basis to disturb the administrative
judge’s finding that the appellant failed to prove national origin discrimination. To the
extent that the administrative judge identified the appellant’s national origin
discrimination claim as one of “ethnic origin” discrimination in the initial decision, ID
at 14, we find that her description of the appellant’s claim did not impact the outcome,
see Equal Employment Opportunity Commission Compliance Manual, § 2IIA1b,
2009 WL 2966754 (Aug. 6, 2009) (“National origin discrimination includes
discrimination based on place of origin or on the physical, cultural, or linguistic
characteristics of a national origin group.”). She elsewhere properly characterized the
appellant’s national origin discrimination claim. E.g., I-2 AF, Tab 25 at 1. The parties
have not challenged her characterization of the appellant’s discrimination claims on
review.17
official’s failure to ask the appellant certain questions when he responded to the
proposed removal, failure to consult with others, and failure review or provide the
OIA report. Id. He similarly argued below that the deciding official’s
“subjective decision making is highly suspicious.” I-2 AF, Tab 51 at 19-20. The
administrative judge did not directly address this argument, but we discern no
error. We cannot infer discriminatory intent from what appears to be an alleged
lack of diligence by the deciding official or subjective perception of unfairness in
the agency’s process of reaching its removal decision when the alleged facts
reflect no racial bias.
¶34One method by which an appellant may establish discrimination under
Title VII is evidence relating to the treatment of similarly situated employees.
Pridgen, 2022 MSPB 31, ¶¶ 24, 27. However, this method of proof requires the
appellant to prove that others outside his protected groups were treated better.
Id., ¶ 24. The administrative judge found that the appellant’s only valid
comparator for his disparate treatment claim was BOP Lieutenant J.M., but that
J.M. was also Hispanic, and therefore the appellant failed to show disparate
treatment. ID at 16; I-2 AF, Tab 31 at 190. The administrative concluded that
another alleged comparator, BOP Deputy Captain J.N., was not similarly situated
to the appellant. ID at 16 (citing I-2 AF, Tab 51 at 17).
¶35J.M. was pictured in a photograph with a Bandidos member that the
appellant posted online. HT 2 at 125 (testimony of J.M.); PFR File, Tab 5 at 7.
The agency initially proposed J.M.’s removal for discreditable behavior for
posing for the photograph. I-2 AF, Tab 31 at 190-91. The deciding official
reduced the penalty to a 21-day suspension. Id. at 192-95. The agency proposed
J.N.’s removal for Conduct Unbecoming a Management Official based on his past
membership in a motorcycle club that was associated with “a criminal gang.” Id.
at 184-86. The deciding official in his case reduced the penalty to a 10-day
suspension. Id. at 187-89. The proposing and deciding officials in each instance
were different for the appellant, J.M., and J.N. I-2 AF, Tab 31 at 186, 189, 191,18
195. Like the appellant, both J.M. and J.N. identify as Hispanic. HT 2 at 107
(testimony of employee J.M.); HT 1 at 161 (testimony of employee J.N.).
Without more, the appellant has raised no inference of discrimination based on
the agency’s treatment of other members of the same protected class. Further, as
the administrative judge concluded, J.N. is not a valid comparator. In addition to
J.N.’s conduct and supervisory chain differing from those of the appellant, J.N.
also worked in a different facility and held a different position than the appellant.
Id. at 160-61 (testimony of J.N.); IAF, Tab 13 at 12, 28.
¶36On review, the appellant argues that the fact that colleagues J.M. and J.N.
were disciplined is evidence that the agency targeted Hispanic employees. PFR
File, Tab 5 at 17-18. The appellant similarly argued below that only “Hispanic
employees,” i.e., J.M., J.N., and himself, were disciplined for “being pictured
with some outlaw motorcycle person or person affiliated with an outlaw
motorcycle club.” I-2 AF, Tab 51 at 17. To the extent that the administrative
judge did not address this argument, we modify the initial decision to do so here.
¶37An appellant who lacks evidence of discriminatory intent may nonetheless
prove discrimination under a disparate impact theory. Wards Cove Packing Co.,
Inc. v. Atonio, 490 U.S. 642, 645-56 (1989), superseded by statute on other
grounds as stated in Texas Department of Housing & Community Affairs v.
Inclusive Communities Project, Inc. , 576 U.S. 519 (2015). To establish a prima
facie case of a disparate impact, an employee must: (1) identify the specific
employment practices that are allegedly responsible for any observed statistical
disparities; and (2) offer statistical evidence of a kind and degree showing the
practices at issue have caused the disparate impact. Warner v. Department of the
Interior, 115 M.S.P.R. 281, ¶ 8 (2010); Stern v. Federal Trade Commission ,
46 M.S.P.R. 328, 333 (1990); Tien E. v. Department of Veterans Affairs , EEOC
Appeal No. 2023001451, 2024 WL 1461081, at *4 (Mar. 21, 2024) (citing Watson
v. Fort Worth Bank & Trust , 487 U.S. 977, 994 (1988)).19
¶38The appellant argued below that “being pictured with some outlaw
motorcycle person or person affiliated with an outlaw motorcycle club is
something brand new and appears to have been directed only at Hispanic
employees.” I-2 AF, Tab 51 at 17. For purposes of our analysis here, we assume
that the appellant has identified a “practice” of disciplining employees for
affiliation to an STG or criminal gang. An appellant seeking to prove a disparate
impact claim “must offer statistical evidence of a kind and degree sufficient to
show that the practice in question has caused [the discipline of individuals]
because of their membership in a protected group.” Watson, 487 U.S. at 994.
Here, the appellant has not provided any background data, such as the number of
employees who engaged in this misconduct, from which to determine that
discrimination might be the motive for his, J.M.’s, and J.N.’s discipline. Further,
we cannot assume that these three employees are a statistically significant sample
absent further information about the number of employees in the workforce and
their demographics. In sum, the appellant has not met his burden to prove a
prima facie case of discrimination based on a disparate impact theory. We
supplement the initial decision by adding this finding.
The agency proved nexus.
¶39The administrative judge found that the appellant’s off-duty misconduct had
a nexus to the efficiency of the service because the deciding official credibly
testified that the appellant’s actions caused her to “los[e] confidence in [his]
ability to perform his duties as a [F]ederal law enforcement officer.” ID at 17-19;
HT 2 at 2, 32, 37-38 (testimony of the deciding official). On review, the
appellant argues that the deciding official “barely knew” him and “failed to
attempt to obtain . . . evidence concerning [the appellant’s] trustworthiness, his
honesty and truthfulness.” PFR File, Tab 5 at 11-12 (spelling error corrected).
We discern no error in the administrative judge’s nexus finding.
¶40An agency may establish nexus between off-duty misconduct and the
efficiency of the service by preponderant evidence by showing that the20
misconduct adversely affects the agency’s trust and confidence in the appellant’s
job performance. Chin, 2022 MSPB 34, ¶ 23. The deciding official explained
that the appellant’s conduct caused her to become concerned that he might not be
able to make “sound correctional decisions . . . [about] what’s best for the
institution” as opposed to making those decisions based on “bias[] toward a group
of inmates.” HT 2 at 38 (testimony of the deciding official). A deciding
official’s unchallenged hearing testimony that the appellant’s misconduct
adversely affected the agency’s trust and confidence in the appellant’s job
performance establishes a nexus between his off-duty misconduct and the
efficiency of the service. Adams v. Defense Logistics Agency , 63 M.S.P.R. 551,
555-56 (1994). The appellant has not pointed to any requirement that a deciding
official investigate whether a nexus exists, and we are aware of none. Further, we
discern no error in the administrative judge’s agreement with the opinion of the
deciding official. ID at 18.
¶41The appellant has not challenged the administrative judge’s alternative
finding that the agency established nexus because posting photographs with
individuals associated with the Bandidos was antithetical to the agency’s mission.
ID at 18-19. We discern no error in her finding. Doe v. Department of Justice ,
113 M.S.P.R. 128, ¶ 20 (2010) (providing that nexus may be proven by showing
that an employee engaged in off-duty misconduct that is directly opposed to the
agency’s mission); see Hunter v. Department of Justice , 110 M.S.P.R. 219, ¶¶ 2,
7 (2008) (concluding that the agency proved nexus when the appellant, a BOP
employee, provided information to a BOP inmate that, contrary to the agency’s
mission, could have been used to cause or perfect a plan to breach security).
Therefore, the appellant’s arguments regarding nexus do not provide a basis for
granting review.21
The administrative judge did not abuse her discretion in her rulings
denying some of the appellant’s motions to compel and some of his
proposed witnesses.
¶42We find unpersuasive the appellant’s argument that the administrative judge
erred by denying nine of his proposed witnesses and his motion to compel the
agency to provide information regarding potential comparators. PFR File, Tab 5
at 5-6, 21-25. An administrative judge has wide discretion to control the
proceedings, including the authority to exclude testimony she believes would be
irrelevant, immaterial, or unduly repetitious. Parker v. Department of Veterans
Affairs, 122 M.S.P.R. 353, ¶ 21 (2015). Prior to the hearing, the administrative
judge approved four witnesses requested jointly by the appellant and the agency,
including the appellant himself, and another six witnesses requested by the
appellant. I-2 AF, Tab 24 at 1. She denied 13 additional witnesses that the
appellant requested. Id. She provided the appellant with an opportunity to call
these witnesses on rebuttal. Id. (discussion on the record).
¶43The Board has found that an appellant fails to preserve for review an
administrative judge’s ruling excluding requested witnesses when he does not
object at the hearing despite being offered an opportunity to do so. Sanders v.
Social Security Administration , 114 M.S.P.R. 487, ¶ 9 (2010). After the appellant
testified as the last approved witness in the case, the administrative judge
provided the appellant’s attorney with an opportunity to call the rebuttal
witnesses if their testimony was material to a disputed fact. February 28, 2022
Hearing Transcript (HT 3) at 90-94. In response, the appellant named only four
of the nine witnesses he lists on review. Compare id., with PFR File, Tab 5
at 22-24. To the extent that the appellant challenges the exclusion of another five
of his requested witnesses, we find that he has not preserved this issue and do not
consider it further.
¶44As to the four witnesses the appellant sought to call on rebuttal at the
hearing, they consisted of his former Captain and former Warden and two of his22
former coworkers. HT 3 at 90-94 (discussion on the record). The administrative
judge denied these witnesses because the issues on which the appellant’s attorney
indicated that the witnesses would testify were matters the appellant had already
addressed in his testimony or that were not in dispute, or because the attorney
indicated that they would testify about their opinions as to whether the
appellant’s conduct was acceptable. Id. In essence, she concluded that their
testimony would be irrelevant, immaterial, or repetitious. On review, the
appellant restates why he would like to call these witnesses and concludes that the
testimony is relevant. PFR File, Tab 5 at 22-24. However, he does not address
any error in the administrative judge’s reasoning, and we discern none.
Therefore, we decline to find that the administrative judge abused her discretion.
¶45The appellant also argues that the administrative judge improperly denied
two motions to compel information related to his discrimination claim. Id.
at 24-25. An administrative judge has broad discretion in ruling on discovery
matters, and the Board will not find reversible error in such rulings absent an
abuse of discretion. Dieter v. Department of Veterans Affairs , 2022 MSPB 32,
¶ 25. We find no such abuse here.
¶46The appellant argues that the administrative judge improperly denied, in
part, his November 29, 2021 motion to compel. PFR File, Tab 5 at 24; I-2 AF,
Tabs 16, 18. In particular, he argues that he was denied “information to ascertain
whether the [BOP] had punished employees for membership, affiliation or
association with groups such as the KKK or Neo-Nazi.” PFR File, Tab 5 at 24.
He argues that this information was relevant to his claim of national origin
discrimination. Id. The appellant has not identified the specific discovery
requests at issue. However, based on his allegations on review, he appears to be
referring to his requests that the agency admit that it “ha[d] no record of any
white employee of the agency who was removed from employment for his or her
affiliation with the Ku Klux Klan,” “being pictured with one or more members of23
the Klux Klan,” and “because of affiliation with a Neo-Nazo group.” IAF Tab 16
at 16-17, 24.
¶47In denying the appellant’s motion as to these requests, the administrative
judge determined that the specific information the appellant sought was not
relevant or reasonably calculated to lead to the discovery of admissible evidence.
I-2 AF, Tab 18 at 2; see 5 C.F.R. § 1291.72(a)-(b) (limiting the scope of
discovery to relevant information, meaning information that appears reasonably
calculated to lead to the discovery of admissible evidence). We agree. To be
similarly situated for purposes of a Title VII claim, comparators must have
reported to the same supervisor, been subjected to the same standards governing
discipline, and engaged in conduct similar to the appellant’s without
differentiating or mitigating circumstances. Pridgen, 2022 MSPB 31, ¶ 27. The
absence of discipline would not shed light on any of the necessary elements of
establishing that an individual is a valid comparator for a claim of disparate
treatment.
¶48The appellant also appears to allege that the administrative judge erred in
denying, in part, his August 10, 2022 motion to compel. PFR File, Tab 5
at 24-25; I-3 AF, Tab 8 at 5-6. We are not persuaded.
¶49While this case was pending before the administrative judge, and after the
record would otherwise have closed, the Board issued its decision in Singh v. U.S.
Postal Service, 2022 MSPB 15. I-2 AF, Tab 45 at 1. As relevant here, the Board
held that, while not outcome determinative, in most cases, an employee from
another work unit or supervisory chain will not be a proper comparator for
purposes of a claim of disparate penalties.10 Id., ¶ 13. In light of Singh, the
administrative judge permitted the parties to conduct additional discovery
“limited to the issue of disparate penalties under Singh.” I-3 AF, Tab 2 at 1.
10 The issue of disparate penalties is discussed further, below, in connection with the
agency’s argument on petition for review.24
¶50The appellant argues that the administrative judge abused her discretion in
denying his August 10, 2022 motion to compel as it concerned his request for
information about employees in the agency’s Western Region who were
disciplined “for being associated with a person or group that was labeled or
identified as a security risk or security risk group or part of a criminal
organization.” PFR File, Tab 5 at 24-25. The administrative judge denied the
appellant’s motion to compel on the basis that the information requested would
not “lead to probative admissible evidence” on the issue of disparate penalties.
I-3 AF, Tab 14 at 1. On review, the appellant argues that the administrative
judge’s ruling prevented him from developing his national original discrimination
claim. PFR File, Tab 5 at 25.
¶51Given that discovery was limited to the issue of disparate penalties rather
than discrimination, the appellant’s claim that the administrative judge prevented
him from discovering information related to national origin discrimination is
inapposite. The appellant was employed in the North Central Region. IAF,
Tab 13 at 12. As such, the appellant’s request for information about employees in
the Western Region was not reasonably calculated to lead to the discovery of
admissible evidence on the issue of disparate penalties. See Singh, 2022 MSPB
15, ¶ 13. The appellant argues that information concerning Western Region
employees is potentially relevant to his discrimination claim because J.M. and
J.N. were disciplined by Western Region officials. PFR File, Tab 5 at 25.
However, the appellant has not claimed that he was prevented from discovery of
any details related to J.M. and J.N. J.M. and J.N.’s proposed removals and the
resulting decision letters are in the record, and J.M. and J.N. also testified at the
hearing. I-2 AF, Tab 31 at 178-95; HT 1 at 160-70 (testimony of J.N.); HT 2
at 106-26 (testimony of J.M.). Therefore, the appellant has failed to show any
abuse of discretion by the administrative judge.25
We deny the agency’s petition for review.
¶52The administrative judge found that the agency failed to prove that the
deciding official properly considered three factors in deciding the appellant’s
penalty of removal. ID at 19-25. These factors concerned the agency’s table of
penalties, an employee who was issued a lesser penalty, and the appellant’s
rehabilitative potential. ID at 21-25. After weighing these and other relevant
factors, the administrative judge concluded that the maximum reasonable penalty
under the circumstances was a 21-day suspension. ID at 25. The agency contests
the administrative judge’s findings. PFR File, Tab 1 at 5-16. Upon review of the
record, we agree with the administrative judge that the maximum reasonable
penalty for the appellant’s misconduct is a 21-day suspension.
¶53When the agency’s charge has been sustained, the Board will review an
agency-imposed penalty only to determine if the agency considered all of the
relevant factors and exercised management discretion within tolerable limits of
reasonableness. Chin, 2022 MSPB 34, ¶ 24; Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 306 (1981). In Douglas, 5 M.S.P.R. at 305-06, the Board listed
12 nonexhaustive factors that are relevant in assessing the penalty to be imposed
for an act of misconduct, including the consistency of the penalty with any
applicable agency table of penalties, the consistency of the penalty with those
imposed upon other employees for the same or similar offenses, and the
employee’s potential for rehabilitation. In determining whether the selected
penalty is reasonable, the Board gives due weight to the agency’s discretion in
exercising its managerial function of maintaining employee discipline and
efficiency. Chin, 2022 MSPB 34, ¶ 24. However, if the deciding official failed
to appropriately consider the relevant factors, the Board need not defer to the
agency’s penalty determination. Id.
The deciding official properly considered the table of penalties.
¶54The administrative judge found that the agency failed to prove that the
deciding official properly considered its table of penalties because the table was26
not in the record. ID at 21. As the agency argues on review, and the appellant
concedes, the table is in the record. PFR File, Tab 1 at 5-7, Tab 6 at 4-5; IAF,
Tab 16 at 69-82. Additionally, as the agency correctly notes, the deciding official
testified at the hearing that she reviewed the table of penalties and determined
that the closest analogous penalty was agency penalty number 55, “Misconduct
off the job,” which carried a penalty range for a first offense from official
reprimand up to removal. HT 2 at 25, 33-34 (testimony of the deciding official).
Accordingly, we agree with the agency and reverse the administrative judge’s
finding that the agency failed to prove that the deciding official considered the
table of penalties.
J.M. was not a valid comparator for purposes of determining the
consistency of the appellant’s penalty with those imposed upon other
employees for the same or similar offenses.
¶55The administrative judge found that the deciding official failed to weigh the
fact that J.M., who was disciplined for being pictured in a photograph with a
Bandidos member that the appellant posted online, was issued a 21-day
suspension. ID at 22-25; I-2 AF, Tab 31 at 190-95. In finding that J.M.’s
situation was similar to the appellant’s, the administrative judge reasoned that
J.M. was in the same supervisory chain and worked at the same facility as the
appellant. ID at 23. The agency disagrees that J.M.’s situation was similar to
that of the appellant. PFR File, Tab 1 at 7-8, 11-16. We agree with the agency
and reverse the administrative judge’s findings concerning disparate penalties.
¶56In assessing an agency’s penalty determination, the relevant inquiry is
whether the agency knowingly and unjustifiably treated employees who engaged
in the same or similar offenses differently. Singh, 2022 MSPB 15, ¶ 14 (citing
Facer v. Department of the Air Force , 836 F.2d 535, 539 (Fed. Cir. 1988)). As
noted above, while not outcome determinative, in most cases, an employee from
another work unit or supervisory chain will not be a proper comparator. Id., ¶ 13.
The agency argues that the administrative judge incorrectly determined that J.M.27
was employed at the same facility as the appellant and was in the same
supervisory chain. PFR File, Tab 1 at 12-13. Instead, it argues that J.M. was
assigned to a different facility than the appellant at the time of his misconduct
and was disciplined by different proposing and deciding officials. Id. at 8, 12.
The agency is correct that at the time of the charged misconduct, J.M. was
working at a different facility than the appellant and was assigned to a different
supervisory chain. I-2 AF, Tab 16 at 121; HT 2 at 113-14 (testimony of the
purported comparator employee). Further, as discussed above in connection with
the appellant’s discrimination claims, different proposing and deciding officials
were involved in J.M.’s and the appellant’s cases. To the extent that the
administrative judge found otherwise, the record does not support her conclusion.
However, this does not end the inquiry.
¶57A valid comparator could also include an employee who, although not
within the same work unit or supervisory chain, engaged in misconduct that has
an unusually close connection to the appellant’s misconduct. Singh, 2022 MSPB
15, ¶ 13 (citing Williams v. Social Security Administration , 586 F.3d 1365,
1368-69 (Fed. Cir. 2009). Such an unusually close connection could include, as
here, involvement in the same underlying events. Williams, 586 F.3d 1365,
1366-69. In Williams, the Board affirmed the petitioner’s removal for falsely
claiming dependents on a tax return. Id. at 1366-67. In doing so, the petitioner
was aided by a coworker who submitted fraudulent tax returns for a number of
clients, of whom the petitioner was one. Id. The agency initially removed the
petitioner’s coworker, but a witness at the petitioner’s Board appeal hearing
testified that the agency later reemployed the coworker. Id. at 1368-69. The
Board sustained the petitioner’s removal. Id. at 1367.
¶58The U.S. Court of Appeals for the Federal Circuit held that, even if the
petitioner’s coworker were not in the same chain of command, his allegedly more
favorable treatment could be relevant to determining whether the petitioner was
subject to a disparate penalty. Id. at 1368-69. The court reasoned that the28
coworker’s conduct was more serious than the petitioner’s because the coworker,
unlike the petitioner, “originated and organized the tax fraud scheme, actively
carried it out and was criminally convicted for his participation in it.” Id. The
court remanded the case to the Board to develop the record on the coworker’s
potentially more favorable treatment and reconsider the issue of disparate
penalties. Id.
¶59In arguing that the administrative judge incorrectly concluded that the
appellant and J.M. were valid comparators for purposes of a disparate penalties
analysis, the agency points to the appellant’s more serious misconduct. PFR File,
Tab 1 at 12-14. The agency alternatively argues that the deciding official could
not have knowingly treated the appellant differently because J.M. was removed
after the appellant. Id. at 14-15.
¶60The deciding official did not testify regarding whether or how she weighed
J.M.’s discipline when removing him. As the agency correctly observes on
review, the decision mitigating J.M.’s proposed removal to a 21-day suspension
was not issued until 7 months after the decision to remove the appellant was
issued in this case. IAF, Tab 13 at 16-19; I-2 AF, Tab 31 at 192. However,
J.M.’s and the appellant’s proposed removals were issued in the same month,
January 2021, and were both based on the same charge of discreditable conduct
arising out of the appellant’s YouTube postings that included images of
Bandidos. IAF, Tab 13 at 28-29; I-2 AF, Tab 31 at 190-91. Given the close
factual connection between the two matters, we cannot presume, as the agency
asks us to do, that the deciding official in the appellant’s case had no knowledge
as to what had happened or what might occur regarding J.M.’s proposed removal.
PFR File, Tab 1 at 14-15.
¶61However, we do not agree with the administrative judge that the agency’s
failure to explain the difference in treatment reflects that the appellant was
treated more harshly than J.M. ID at 24-25. First, the nature of the appellant’s
misconduct was more serious than that of J.M. The appellant admittedly posted29
on social media multiple photos of himself with members of the Bandidos. IAF,
Tab 13 at 23-24, 28. J.M. appeared in one photo with a Bandidos that J.M. did
not post–the appellant did. I-2 AF, Tab 31 at 190, Tab 44 at 7; IAF, Tab 13 at 49;
HT 2 at 117-20, 124-25 (testimony of J.M.). On the other hand, the appellant’s
misconduct occurred in the context of a charity event he organized to honor a
deceased, close family member, a significant mitigating factor that was not
present for J.M. Therefore, despite the initial similarity between the misconduct
committed by the appellant and J.M., we find that the circumstances surrounding
their misconduct differ in meaningful ways. Consequently, we agree with the
agency that J.M. was not a valid comparator employee, and we reverse the
administrative judge’s finding to this effect.
We agree with the administrative judge that the appellant’s strong
rehabilitative potential weighs in favor of mitigating the removal penalty.
¶62The administrative judge disagreed with the deciding official’s conclusion
that the appellant did not show rehabilitative potential. ID at 21-22. The agency
contests this conclusion. PFR File, Tab 1 at 9-11. We agree with the
administrative judge.
¶63As noted above, one of the Douglas factors is the potential for the
employee’s rehabilitation. Social Security Administration v. Levinson ,
2023 MSPB 20, ¶ 44, aff’d, 2024 WL 3579909 (Fed. Cir. July 30, 2024). The
Board considers expressions of remorse as reflecting rehabilitative potential and
thus militating in favor of a lesser penalty. Id. Conversely, an individual’s
rationalizations and lack of remorse may reflect little rehabilitative potential and
thus be aggravating factors. Id.
¶64Here, the appellant apologized for his behavior. The appellant admitted that
he had posted the videos containing the offending photographs on YouTube and
agreed to take care not to use such materials to publicize his son’s charity in the
future. IAF, Tab 13 at 24. He disclaimed any association with criminal activity.
Id. at 23-24. He also stated that, as a consequence of being alerted to the30
agency’s concerns, he would refrain from engaging in the charged activity in the
future. Id. at 24; see Shelly v. Department of the Treasury , 75 M.S.P.R. 677,
684-85 (1997) (finding that the appellant had rehabilitation potential and
mitigating her removal to a demotion based on, among other things, her testimony
that she would not engage in the charged misconduct in the future). He
voluntarily removed the YouTube videos in May 2020, immediately after he was
alerted to the fact that the agency had concerns about them, which was before the
agency completed its investigation into the potential wrongdoing and well before
his removal was proposed, providing further evidence of the appellant’s
acknowledgement of his wrongdoing. I-2 AF, Tab 16 at 49; HT 1 at 96-97,
100-01 (testimony of an OIA Special Agent), HT 3 at 54-55 (testimony of the
appellant); see Singletary v. Department of the Air Force , 94 M.S.P.R. 553, ¶ 15
(2003) (noting that an employee’s immediate admission of misconduct and
expression of remorse upon an initial inquiry by an agency is of some mitigating
weight), aff’d, 104 F. App’x 155 (Fed. Cir. 2004). During his oral reply to the
proposal, the appellant apologized for the incident. IAF, Tab 13 at 21. Given the
above, we agree with the administrative judge that the deciding official should
have, but did not, acknowledge and consider the appellant’s remorse. IAF,
Tab 13 at 17; ID at 21-22.
¶65As the deciding official observed, the appellant also sought to justify his
misconduct. HT 2 at 35 (testimony of the deciding official). She acknowledged
that the appellant’s desire to honor his stepson’s legacy was a mitigating factor
but also considered that “there were other pictures he could have posted” instead
of “the pictures specifically with the Bandidos.” HT 2 at 35 (testimony of the
deciding official). However, we reject the implication that the fact that the
appellant mounted a defense against the agency’s charges indicates that he lacked
remorse or failed to admit to wrongdoing, and we are not persuaded by the
agency’s attempt to argue otherwise. PFR File, Tab 1 at 9-11; see Raco v. Social
Security Administration , 117 M.S.P.R. 1, ¶¶ 12, 16 (2011) (affirming an31
administrative judge’s determination that an agency improperly concluded that an
appellant who admitted to her misconduct and apologized lacked remorse because
she also provided an explanation of her behavior and the mitigating factors that
weighed in her favor).
We find that a 21-day suspension is the maximum reasonable penalty for
the charge of discreditable behavior based on the specific facts of this
case.
¶66When, as here, the Board sustains the agency’s charge but finds that the
agency failed to weigh the relevant mitigating factors, the Board may mitigate the
agency’s original penalty to the maximum reasonable penalty. Raco,
117 M.S.P.R. 1, ¶ 13. Because we agree with the administrative judge that the
agency did not recognize the appellant’s expressions of remorse, which suggest a
strong rehabilitative potential, we conclude that she correctly decided to reweigh
the Douglas factors. However, we have reversed her finding that the agency
failed to prove that removal was consistent with its table of penalties and her
determination that J.M. was given a disparate penalty for the same or similar
misconduct. After reweighing the Douglas factors, we agree that a 21 -day
suspension, rather than removal, is the maximum reasonable penalty.
¶67Like the administrative judge, we acknowledge the seriousness of the
charge against the appellant, and we do not minimize its gravity. ID at 20-21;
see, e.g., Brown v. Department of the Navy , 229 F.3d 1356, 1361 (Fed. Cir. 2000)
(stating that “off-duty conduct that is inconsistent with the agency’s mission and
that undermines confidence in the employee can . . . justify the employee’s
removal”). This is particularly true when, as here, the employee holds a
supervisory position with law enforcement duties. Luongo v. Department of
Justice, 95 M.S.P.R. 643, ¶ 13 (2004) (noting that a higher standard of conduct
and a higher degree of trust are required of supervisory correctional officers as
both law enforcement and supervisors), aff’d, 123 F. App’x 405 (Fed. Cir. 2005).
But see, e.g., Reid v. Department of the Navy , 118 M.S.P.R. 396, ¶ 32 (2012)32
(acknowledging that law enforcement and supervisory status do not preclude
penalty mitigation); Ludlum v. Department of Justice , 87 M.S.P.R. 56, ¶ 31
(stating that law enforcement status does not preclude penalty mitigation), aff’d,
278 F.3d 1280 (Fed. Cir. 2002).
¶68On the other hand, the appellant’s discipline-free 18 years of service and 3
previous years of Outstanding performance ratings are mitigating factors. IAF,
Tab 13 at 12, 17; I-2 AF, Tab 27 at 12, 19, 25; ID at 3, 25; see Chin, 2022 MSPB
34, ¶¶ 4, 28-33 (mitigating a removal for the serious charge of larceny to a 90 -day
suspension based on the appellant’s 30 years of discipline-free Federal service,
successful job performance, lack of repetition of the misconduct, the de minimis
value of the items taken, and the fact that he did not have custody or control over
the stolen items as a part of his official duties); Reid, 118 M.S.P.R. 396, ¶¶ 30-32
(finding that an appellant’s admission to his errors and his 18 years of
discipline-free service with positive performance, among other factors, warranted
mitigating his demotion to a letter of reprimand). We also find that the fact that
the appellant’s misconduct arose in the context of a charity event honoring his
late stepson is a significant mitigating factor.
¶69The appellant’s conduct demonstrated an error in judgment that warrants
discipline. However, he promptly took responsibility for his actions and
indicated that he would not engage in similar conduct in the future. Considering
his potential for rehabilitation along with his lengthy Federal service, positive
performance record, lack of prior discipline, and the tragic personal
circumstances surrounding his conduct, we find that a 21-day suspension is the
maximum reasonable penalty under the unique circumstances of this case.
ORDER
¶70We ORDER the agency to cancel the appellant’s removal and substitute a
21-day suspension without pay, and to restore the appellant effective February 19,
2021. See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir.33
1984). The agency must complete this action no later than 20 days after the date
of this decision.
¶71We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶72We 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).
¶73No 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).
¶74For 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 the34
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS11
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review
of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your
claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
11 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.35
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 36
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 37
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.12 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
12 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 38
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.39
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards
until notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g., TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the
employee in a job undertaken during the back pay period to replace federal
employment. Documentation includes W-2 or 1099 statements, payroll
documents/records, etc. Also, include record of any unemployment earning
statements, workers’ compensation, CSRS/FERS retirement annuity payments,
refunds of CSRS/FERS employee premiums, or severance pay received by the
employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable).
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | Cordova_Robert_L_DE-0752-21-0154-I-3_Final_Order.pdf | 2024-11-13 | ROBERT L. CORDOVA v. DEPARTMENT OF JUSTICE, MSPB Docket No. DE-0752-21-0154-I-3, November 13, 2024 | DE-0752-21-0154-I-3 | NP |
367 | https://www.mspb.gov/decisions/nonprecedential/Lorusso_AnnaDC-0843-21-0297-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANNA LORUSSO, (DAVIS),
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0843-21-0297-I-1
DATE: November 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anna Lorusso, (Davis) , Charlotte, North Carolina, pro se.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of Office of Personnel Management (OPM)
denying the appellant’s application for former spouse survivor annuity benefits.
On petition for review, the appellant attaches a copy of her former spouse’s will
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
and his request to withdraw funds from his thrift savings plan (TSP).2 Petition for
Review File, Tab 1 at 4-10. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).3
2 To the extent that the appellant argues that the will or TSP withdrawal form is
evidence of her former husband’s intent to provide her with a survivor annuity, we note
that no such language appears in either document. PFR File, Tab 1 at 4-10. Because
we agree with the administrative judge’s findings that the appellant’s divorce decree
contains no language that could be fairly read as awarding her with a survivor annuity,
the consideration of such extrinsic evidence would be legally impermissible. Initial
Appeal File (IAF), Tab 11, Initial Decision (ID) at 4; Fox v. Office of Personnel
Management, 100 F.3d 141, 145-46 (Fed. Cir. 1996) (explaining that extrinsic evidence
may not be used to justify reading in term into an agreement that is not found in the
document).
3 The initial decision stated that there was no evidence that the appellant’s former
husband “elected for the appellant to receive a survivor annuity.” ID at 4. We
recognize that the appellant’s former husband did elect for the appellant to receive a
survivor annuity at the time of his retirement, when the couple was still married. IAF,
Tab 6 at 10, 49. However, that election terminated upon the couple’s divorce, and there
is no evidence in the record that the former husband elected for the appellant to receive
a former spouse survivor annuity. Id. at 49. Thus, because we agree that the appellant
failed to establish her entitlement to a former spouse annuity benefit, the administrative
judge’s misstatement does not prejudice the appellant’s rights. 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 the initial decision).2
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Lorusso_AnnaDC-0843-21-0297-I-1_Final_Order.pdf | 2024-11-13 | null | DC-0843-21-0297-I-1 | NP |
368 | https://www.mspb.gov/decisions/nonprecedential/Figueroa_Nadia_E_SF-0752-20-0024-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NADIA E. FIGUEROA,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-0752-20-0024-I-1
DATE: November 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alexis N. Tsotakos , Esquire, Keith Taubenblatt , Esquire, and
Kevin L. Owen , Esquire, Silver Spring, Maryland, for the appellant.
Michael E. Nyre , Fort Irwin, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
reversed her removal on due process grounds, asserting that the administrative
judge erred by not addressing the merits of the agency’s adverse action and by
finding that she failed to prove discrimination and reprisal for equal employment
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
opportunity (EEO) activity. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify the proper legal standard for the appellant’s claim of reprisal for EEO
activity, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant argues that the administrative judge was required
to address the merits of the adverse action. Petition for Review (PFR) File, Tab 1
at 7-8. As the administrative judge noted, when, as here, a procedural due
process violation has occurred because of ex parte communications, “the merits of
the adverse action are wholly disregarded.” Initial Appeal File (IAF), Tab 47,
Initial Decision (ID) at 13; see Giannantonio v. U.S. Postal Service , 111 M.S.P.R.
99, ¶ 5 (2009). Thus, the administrative judge properly did not address the merits
of the adverse action.
The appellant also argues that the administrative judge erred in finding that
her failure to accommodate claim was barred by collateral estoppel because an
appeal is pending with the Equal Employment Opportunity Commission
(EEOC)’s Office of Federal Operations. PFR File, Tab 1 at 5-6. As the2
administrative judge noted, the pendency of an appeal has no effect on the finality
or binding effect of a trial court’s holding .2 IAF, Tab 34 at 4; see Rice v.
Department of Treasur y, 998 F.2d 997, 999 (Fed. Cir. 1993). We agree that the
EEOC initial decision is a final judgment to which issue preclusion would apply,
except to the extent that the appellant has presented new evidence in this appeal
that was not addressed by the EEOC administrative judge’s ruling. ID at 19. The
appellant has not presented such evidence on review.
The appellant does not challenge the administrative judge’s finding that she
did not prove her discrimination-based affirmative defenses. Regarding her claim
of disability-based EEO reprisal, the administrative judge concluded that she
failed to meet her burden of proving reprisal was a motivating factor in the
agency’s decision. ID at 25. We agree with the overall conclusion reached by
the administrative judge, but we modify the initial decision to clarify the proper
legal standard for the appellant’s claim.
To establish an affirmative defense of retaliation under 42 U.S.C.
§ 2000e-16, i.e., Title VII discrimination and retaliation claims involving race,
color, religion, sex, or national origin, an appellant must prove by preponderant
evidence that her membership in a protected class was at least a motivating factor
in the contested personnel action. Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 20-22. However, a more stringent standard applies in the
context of retaliation claims arising under the Rehabilitation Act, such that the
appellant must prove that her prior EEO activity was a but-for cause of the
retaliation. Id., ¶¶ 46-47. Nevertheless, because the appellant did not prove that
retaliation was a motivating factor in her removal, she necessarily failed to prove
but-for causation. Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 33.
2 We take notice that the EEOC’s Office of Federal Operations has since issued
decisions in the appellant’s appeals, affirming the findings of no discrimination. Rosita
R. v. Department of the Army , EEOC Appeal No. 2020000637, 2021 WL 1925705
(April 28, 2021); Phoebe O. v. Department of the Army , EEOC Appeal
No. 2020000674, 2021 WL 1424808 (April 5, 2021).3
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Figueroa_Nadia_E_SF-0752-20-0024-I-1_Final_Order.pdf | 2024-11-12 | NADIA E. FIGUEROA v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-0752-20-0024-I-1, November 12, 2024 | SF-0752-20-0024-I-1 | NP |
369 | https://www.mspb.gov/decisions/nonprecedential/Knapp_Lindsey_DC-0752-21-0377-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINDSEY KNAPP,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-0752-21-0377-I-1
DATE: November 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel K. Maharaj , Tampa, Florida, for the appellant.
Nancy Sanchez , Fort Bragg, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal as untimely filed without good cause shown. On
petition for review, she argues, without providing specifics, that the
administrative judge erred in finding that the appeal was not timely. Generally,
we grant petitions such as this one only in the following circumstances: the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Knapp_Lindsey_DC-0752-21-0377-I-1_Final_Order.pdf | 2024-11-12 | LINDSEY KNAPP v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-21-0377-I-1, November 12, 2024 | DC-0752-21-0377-I-1 | NP |
370 | https://www.mspb.gov/decisions/nonprecedential/Caceres-Rivera_JimySF-0752-20-0696-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JIMY CACERES-RIVERA,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-20-0696-I-1
DATE: November 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven E. Brown , Esquire, Westlake Village, California, for the appellant.
Arnulfo Urias , Esquire, Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal based on a finding that the agency failed to
reasonably accommodate him. On petition for review, the agency argues, among
other things, that the appellant made a retroactive request for reasonable
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
accommodation, and it was not required to grant it. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
ORDER
We ORDER the agency to cancel the removal and to retroactively restore
the appellant to the position of GS-0930-11 Asylum Officer, effective August 7,
2020. See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir.
1984). The agency must complete this action no later than 20 days after the date
of this decision.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the 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 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
3
due, and/or other benefits, we ORDER the agency to pay the appellant the
undisputed amount no later than 60 calendar days after the date of this decision.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
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 APPELLANT
REGARDING YOUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be paid, you must meet the requirements set out at
42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201,
1201.202, and 1201.204. If you believe you meet these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
THE DATE OF THIS DECISION. You must file your motion with the office that
issued the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING
SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1 -7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
10 | Caceres-Rivera_JimySF-0752-20-0696-I-1_Final_Order.pdf | 2024-11-08 | null | SF-0752-20-0696-I-1 | NP |
371 | https://www.mspb.gov/decisions/nonprecedential/Katukuri_NeelimaAT-1221-23-0531-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NEELIMA KATUKURI,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-23-0531-W-1
DATE: November 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jerry Girley , Esquire, Orlando, Florida, for the appellant.
Karen L. Mulcahy , Bay Pines, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action appeal for lack of jurisdiction. On
petition for review, the appellant argues that the agency’s reasons for taking 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).
personnel action against her were false. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 4
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Katukuri_NeelimaAT-1221-23-0531-W-1_Final_Order.pdf | 2024-11-08 | NEELIMA KATUKURI v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-23-0531-W-1, November 8, 2024 | AT-1221-23-0531-W-1 | NP |
372 | https://www.mspb.gov/decisions/nonprecedential/Courtney_EvelynSF-1221-23-0417-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EVELYN COURTNEY,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
SF-1221-23-0417-W-1
DATE: November 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Evelyn Courtney , Fresno, California, pro se.
Mikel C. Deimler , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action appeal for lack of jurisdiction. On
petition for review, the appellant does not directly dispute the administrative
judge’s conclusion but instead argues that the agency violated her collective
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
bargaining rights and did not properly terminate her, that she proved the timing
test, and that the agency should rehire her. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Courtney_EvelynSF-1221-23-0417-W-1_Final_Order.pdf | 2024-11-08 | EVELYN COURTNEY v. DEPARTMENT OF THE TREASURY, MSPB Docket No. SF-1221-23-0417-W-1, November 8, 2024 | SF-1221-23-0417-W-1 | NP |
373 | https://www.mspb.gov/decisions/nonprecedential/Miles_BeverlyCB-1216-22-0001-T-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL,
Petitioner,
v.
BEVERLY MILES,
Respondent.DOCKET NUMBER
CB-1216-22-0001-T-1
DATE: November 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Erica Hamrick and Eric Johnson , Esquire, Washington, D.C.,
for the petitioner.
Melissa Cuddington , Esquire, and Michael Goldberg , Esquire,
Chicago, Illinois, for the respondent.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
¶1The respondent has filed a petition for review of the initial decision, which
found that her removal and debarment from Federal employment for 2 years was
an appropriate penalty for violating the Hatch Act. The petitioner has filed a
cross petition for review of that initial decision. Generally, we grant petitions
such as these only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the parties have
not established any basis under section 1201.115 for granting the petition for
review and cross petition for review. Therefore, we DENY the petition and cross
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2The respondent was employed as a nurse at the U.S. Department of
Veterans’ Affairs (DVA) since 2018. Complaint File (CF), Tab 18 at 3; Hearing
Transcript (HT), Vol. 1, at 59-60. The Office of Special Counsel (OSC) filed a
Complaint for Disciplinary Action (Violation of the Hatch Act) against the
respondent, charging her with a single count of being a candidate for partisan
political office in violation of 5 U.S.C. § 7323(a)(3) and 5 C.F.R. § 734.304 for
the 2022 election for the Governor of Illinois. CF, Tab 1. OSC subsequently
amended its complaint to add a second count, alleging that the respondent2
knowingly solicited, accepted, or received political contributions in violation of
5 U.S.C. § 7323(a)(2) and 5 C.F.R. § 734.303. CF, Tab 7.
¶3In her answers to the complaint, the respondent admitted to being a Federal
employee covered by the Hatch Act while running in the 2022 election for
Governor of Illinois, a partisan political office. CF, Tab 4 at 4-5, 7. However,
she claimed that she did not receive information that Federal employees may not
be candidates for public office in partisan elections and that she was unaware that
the Hatch Act prohibited her conduct. Id. at 4-7. In her answer to the amended
complaint, she acknowledged that she accepted political contributions for her
gubernatorial candidacy through her campaign website, but she indicated that she
did not violate the Hatch Act because she did not solicit those contributions. CF,
Tab 11 at 6.
¶4OSC filed a motion for summary adjudication, arguing that the respondent
admitted to all material facts and thus it was entitled to judgment as a matter of
law. CF, Tab 10. The respondent opposed OSC’s motion, arguing that she
presented evidence that raised genuine disputes of material facts. CF, Tab 12.
Subsequently, the administrative law judge issued an order granting OSC’s
motion in part, finding that OSC was entitled to judgment as a matter of law on
both counts of its complaint, but that a hearing was necessary to determine the
proper penalty to impose on the respondent. CF, Tab 18.
¶5After holding a hearing, the administrative law judge found that the
respondent made a knowing, deliberate decision to proceed with her campaign for
election to a partisan political office, including soliciting and receiving political
contributions, despite being advised that her gubernatorial candidacy violated the
Hatch Act. CF, Tab 38, Initial Decision (ID) at 5-6. The administrative law
judge noted that the respondent’s Hatch Act violations were highly visible and
notorious to the public due to the multiple media interviews she used to publicize
and promote her candidacy, and that she continued her political activities even
after OSC filed a complaint and up until the primary election day. ID at 5-6. The3
administrative law judge then performed an extensive analysis of factors set forth
in Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), and
determined that removal and debarment from Federal employment for 2 years was
the appropriate penalty for the respondent’s violations of the Hatch Act. ID
at 8-23. The administrative law judge rejected OSC’s request to impose a 5 -year
debarment, noting that it would be inconsistent with prior penalties. ID at 23.
¶6The respondent has filed a petition for review arguing that the
administrative law judge improperly weighed the Douglas factors because he
accorded the most weight to the factor concerning the notoriety of the offense and
little to no weight to mitigating factors. Petition for Review (PFR) File, Tab 1
at 4-7. She also argues that the penalty of removal and debarment from Federal
employment for 2 years is excessive and inconsistent with penalties in similar
cases. Id. at 7-8. OSC has filed a response to the respondent’s petition for
review and a cross petition for review, arguing that the administrative law judge
erred in not imposing the maximum 5-year debarment, given the aggravating
factors. PFR File, Tab 4 at 8. OSC also requests that the Board use this case as
an opportunity to clarify that, under Douglas factor two, healthcare providers are
held to a higher standard than other Federal employees. Id.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative law judge correctly found that OSC proved that the respondent
violated the Hatch Act.
¶7In its first count, OSC alleged that the respondent violated 5 U.S.C.
§ 7323(a)(3) through her candidacy for partisan political office. IAF, Tab 1 at 6.
That statute makes it unlawful for an employee, such as the respondent, to “run
for the nomination or as a candidate for election to a partisan political office.”
5 U.S.C. § 7323(a)(3). The respondent contends that she believed that the DVA
Code of Conduct gave her permission to run for partisan political office. PFR
File, Tab 1 at 5-6. However, the respondent’s contention does not excuse her4
misconduct because the plain language of the statute does not require OSC to
prove that a violation was either knowing or willful. 5 U.S.C. § 7323(a)(3);
Lewis v. Merit Systems Protection Board , 594 F. App’x 974, 979 (Fed. Cir. 2014)
(observing that the prohibition in 5 U.S.C. § 7323(a)(3) does not require
knowledge or intent).2 We agree with the administrative law judge that OSC
established the first count because the record shows that the respondent was a
Federal employee covered by the Hatch Act and that she was a candidate for
partisan political office in the 2022 election for the Governor of Illinois. CF,
Tab 18 at 5-8.
¶8In its second count, OSC alleged that the respondent violated 5 U.S.C.
§ 7323(a)(2). CF, Tab 7 at 9. That statute prohibits an employee, such as the
respondent, from knowingly soliciting, accepting, or receiving political
contributions. 5 U.S.C. § 7323(a)(2). This provision of the statute has an explicit
knowledge requirement, but OSC must only establish that the respondent
knowingly accepted a political contribution. 5 U.S.C. § 7323(a)(2); Lewis, 594 F.
App’x at 979-80 (observing that the statute does not require knowledge that
soliciting the donation violated the law). The administrative law judge noted that,
even accepting the respondent’s assertion that she did not directly solicit political
contributions as true, the evidence is clear that the respondent knew that her
campaign was in receipt of political contributions; thus, he found that OSC
established its second count. CF, Tab 18 at 8-10. The respondent does not
challenge this finding, and we discern no reason to disturb it.
Removal and debarment from Federal employment for 2 years is an appropriate
penalty for the respondent’s Hatch Act violations.
¶9After considering OSC’s post-hearing brief regarding the appropriate
penalty, the administrative law judge correctly applied the relevant Douglas
2 See Morris v. Department of the Navy , 123 M.S.P.R. 662, ¶ 13 n.9 (2016) (explaining
that the Board may follow a nonprecedential decision of the U.S. Court of Appeals for
the Federal Circuit when it finds its reasoning persuasive).5
factors3 and determined that removal was the appropriate penalty to impose on the
respondent. ID at 8-22; CF, Tab 37; see Special Counsel v. Lewis , 121 M.S.P.R.
109, ¶ 23 (finding that, under the Hatch Act Modernization Act of 2012, the
Board should apply the Douglas factors in determining the proper penalty for
violations of the Hatch Act), aff’d, 594 F. App’x 974 (Fed. Cir. 2014). The
respondent did not submit a post-hearing brief regarding the appropriate penalty,
but she challenges the administrative law judge’s application of the Douglas
factors. PFR File, Tab 1 at 4-7. On review of the record, we find that the
administrative law judge reviewed the evidence and arguments and came to
reasoned, logical conclusions. As discussed below, the respondent has not shown
that the administrative law judge failed to consider the relevant factors.
¶10The respondent disagrees with the weight the administrative law judge
accorded the second Douglas factor, which concerns her job level and type of
employment. PFR File, Tab 1 at 5. The administrative law judge correctly noted
that the respondent did not occupy a supervisory position, which would require a
higher standard of conduct, and determined that this factor should be accorded
little weight as a result. ID at 9-10. We discern no reason to disturb the
administrative law judge’s finding in this regard, particularly given the absence of
any persuasive argument presented by the respondent. The agency requests that
this factor be treated as aggravating and that the Board use this case as an
3 Those factors include the following: (1) the nature and seriousness of the offense;
(2) the employee’s job level and type of employment; (3) the employee’s past
disciplinary record; (4) the employee’s past work record; (5) the effect of the offense
upon the employee’s ability to perform at a satisfactory level and its effect upon
supervisors’ confidence in the employee’s ability to perform assigned duties;
(6) consistency of the penalty with those imposed upon other employees for the same or
similar offenses; (7) consistency of the penalty with any applicable agency table of
penalties; (8) the notoriety of the offense or its impact upon the reputation of the
agency; (9) the clarity with which the employee was on notice of any rules that were
violated in committing the offense or had been warned about the conduct in question;
(10) potential for the employee’s rehabilitation; (11) mitigating circumstances
surrounding the offense; and (12) the adequacy and effectiveness of alternative
sanctions to deter such conduct in the future by the employee or others. Douglas,
5 M.S.P.R. at 305-06.6
opportunity to clarify that, under Douglas factor two, healthcare providers are
held to a higher standard than other Federal employees. PFR File, Tab 4 at 8.
While we agree that healthcare providers are expected to adhere to a high
standard of conduct and behavior towards patients and other employees, we
decline to find that the respondent’s work in a healthcare setting constituted an
aggravating factor in this case.
¶11The respondent also objects to the administrative law judge’s statements
regarding the third and fourth Douglas factors, which concern her past
disciplinary and work records. PFR File, Tab 1 at 5. She notes that, in
considering the third and fourth Douglas factors, the administrative law judge
stated that the record shows that the parties submitted no evidence concerning
prior discipline and that there was little discussion concerning her past work
record. PFR File, Tab 1 at 5; ID at 10. She also notes that the administrative law
judge later pointed to her “apparent lack of a disciplinary record,” without a
citation to the record. PFR File, Tab 1 at 5; ID at 23. The administrative law
judge appropriately gave the third and fourth Douglas factors little weight in light
of the limited evidence in the record, ID at 10, and the administrative law judge’s
reference to the “apparent lack of a disciplinary record” appears to be consistent
with his earlier statement that the parties submitted no evidence regarding prior
discipline. We are not persuaded by the respondent’s objections, especially given
that the administrative law judge ultimately considered the respondent’s past
work record and apparent lack of disciplinary record as mitigating factors in
support of a period of debarment of less than 5 years, which was the enhanced
penalty requested by OSC. ID at 23.
¶12The respondent disagrees with the administrative law judge’s finding that
the eighth Douglas factor, notoriety of the offense, weighs most heavily in favor
of removal. PFR File, Tab 1 at 5-6. She appears to conflate this factor with the
ninth Douglas factor, the clarity with which she was on notice of any rules that
were violated in committing the offense, when she asserts that the administrative7
law judge failed to consider testimony from herself and other witnesses regarding
the purportedly confusing nature of the DVA’s policies surrounding the Hatch
Act. Id. at 6. She acknowledges that OSC presented evidence showing that the
agency warned her that her conduct was in violation of the Hatch Act, but she
asserts that she believed that she was permitted to run for the position of
Governor of Illinois based on the DVA Code of Conduct, which states,
“Employees may run for and hold non partisan or political office.” PFR File, ‐
Tab 1 at 5-6; CF, Tab 32 at 15, HT, Vol. 1, at 73-75; 258.
¶13Regarding the eighth Douglas factor, notoriety of the offense, the
administrative law judge noted that the respondent brought significant attention to
her Hatch Act violations by openly discussing the Hatch Act and her position as a
DVA employee in multiple interviews broadcast on major news networks. ID
at 16. He also noted that the respondent publicly acknowledged that the Hatch
Act would require her to resign her Federal position or end her campaign, but she
nevertheless chose to continue her campaign despite public admonitions. ID
at 17-18; HT, Vol. 1, at 122, 127. He concluded that the respondent’s conduct,
which was viewable to the public and other Federal employees, undoubtedly
damaged the reputation of the DVA and wrongly implied that the DVA condoned
this type of political activity; thus, the public nature of her campaign and the
notoriety of her misconduct weighed heavily in favor of removal. ID at 17-18.
We discern no reason to disturb the administrative law judge’s finding in that
regard. ID at 21–22; see Taylor v. Department of the Navy , 35 M.S.P.R. 438,
442, 444 (1987) (finding general employee awareness of the charged misconduct
to be an aggravating factor), aff’d, 867 F.2d 728 (Fed. Cir. 1988) (Table); Black
v. Department of the Air Force , 29 M.S.P.R. 133, 137 (1985) (finding that media
attention concerning the respondent’s misconduct supported removal) .
¶14Regarding the ninth Douglas factor, the clarity with which she was on
notice of any rules that were violated in committing the offense, the
administrative law judge found that the respondent was on notice that she was8
subject to the Hatch Act and that her conduct violated the Hatch Act. ID at 20.
He found that the DVA provided materials and training to the respondent on the
Hatch Act and its prohibitions through a training module that the respondent
completed. ID at 20; IAF, Tab 33 at 7-20; HT, Vol. 1, at 14-16. He also found
that the respondent was directly contacted on multiple occasions where OSC
explained that the respondent’s conduct violated the Hatch Act. ID at 20. He
considered the respondent’s argument that she believed that the DVA Code of
Conduct gave her permission to run for partisan political office, but he correctly
noted that any mistaken belief she held should have been corrected after receiving
OSC’s multiple notices that she was violating the Hatch Act. ID at 19-20; see
Lewis, 121 M.S.P.R. 109, ¶ 28 (noting that the respondent’s reliance on the
incorrect advice of counsel, despite the warning letters from OSC, did not affect
the clarity of the rules brought to his attention by those warning letters); Special
Counsel v. Briggs , 110 M.S.P.R. 1, ¶¶ 14-16 (2008) (affirming the respondent’s
removal based on clear warnings he received from his employing agency and OSC
that his continued candidacy violated the Hatch Act, even though he mistakenly
believed otherwise after speaking with an attorney regarding the matter), aff’d,
322 F. App’x 983 (Fed. Cir. 2009). Thus, we agree with the administrative law
judge that this factor militates toward a more severe sanction.
¶15The respondent also argues that the penalty of removal and debarment from
Federal employment for 2 years is excessive and inconsistent with penalties in
similar cases. PFR File, Tab 1 at 7-8. In support of her argument, the respondent
cites to Special Counsel v. Malone, 84 M.S.P.R. 342 (1999) and Special Counsel
v. Rivera, 61 M.S.P.R. 440 (1994),4 noting that the penalties imposed in those
4 In Malone, the Board found that suspensions of 180 and 150 days were appropriate
penalties to impose on District of Columbia employees for violations of the Hatch Act,
which occurred when employees solicited services and contributions from other D.C.
government officials and persons doing business with the District of Columbia, in
connection with the mayor’s reelection campaign. 84 M.S.P.R. 342, ¶¶ 35-37, 47. In
Rivera, the Board found that a 60-day suspension was the appropriate penalty because
the violation consisted of fundraising letters sent to only four individuals, none of
whom were Federal employees, and because the respondent participated in the9
cases were less severe than removal. PFR File, Tab 1 at 7. We find unavailing
the respondent’s reliance on Malone and Rivera. Those cases are distinguishable
to the extent the respondents were not charged with candidacy violations and did
not continue to engage in the prohibited conduct after being warned by OSC.
¶16The other cases the respondent cites, Special Counsel v. Arnold , MSPB
Docket No. CB-1216-16-0017-T-1, Final Order (Jan. 17, 2023) and Special
Counsel v. Pierce , 85 M.S.P.R. 281 (2000), involved Federal employees charged
with running for partisan political office, and the respondent observes that, in
Arnold, the administrative law judge ordered removal but not debarment. PFR
File, Tab 1 at 7. Nonprecedential decisions , such as Arnold, are not binding on
the Board except when they have a preclusive effect on the parties. 5 C.F.R.
§ 1201.117(c)(2). Moreover, removal was the maximum penalty for a Hatch Act
violation prior to the National Defense Authorization Act for Fiscal Year 2018,
Pub. L. No. 115-91, 131 Stat 1283, 1626 (NDAA for 2018). Section 1097(k)(2)
of that Act authorizes enhanced penalties for violations of 5 U.S.C. § 7323
“occurring after the date of enactment of this Act.” The NDAA for 2018 became
effective on December 12, 2017. Arnold concerned Hatch Act violations
occurring prior to December 12, 2017, and the imposition of debarment for the
respondent’s conduct was beyond the scope of the administrative law judge’s
authority. We are likewise not persuaded that Pierce is a proper comparator case
because it involved a settlement providing for a 30-day suspension for the
respondent’s violation of the Hatch Act and mitigating factors, most of which are
not present in this case. 85 M.S.P.R at 282-83. We decline to compare a penalty
to other actions resolved through settlement, and this precedent is grounded in the
Board’s longstanding policy in favor of settlement. See Hulett v. Department of
the Navy, 120 M.S.P.R. 54, ¶ 7 (2013) (concurring and dissenting opinion of Vice
Chairman Wagner).
assignment at the request of the Colorado Hispanic Bar Association for the purpose of
promoting the candidacy of a fellow Hispanic. 61 M.S.P.R. at 442, 445.10
¶17The administrative law judge properly found that removal is an appropriate
penalty in this case. The nature and severity of the respondent’s Hatch Act
violations are not in dispute. The Board has held that a respondent’s “active
candidacy for partisan political office, [which] was conspicuous and substantial,”
warrants removal from Federal service. See Special Counsel v. Greiner,
117 M.S.P.R. 117, ¶ 19 (2011) (explaining that the respondent’s candidacy for
partisan political office carries with it political coloring of the highest order and
also weighs in favor of removal). The Board also has held that a Hatch Act
violation generally “warrants removal if it occurred under circumstances
demonstrating a deliberate disregard of the Act.” Briggs, 110 M.S.P.R. 1, ¶ 14.
The administrative law judge correctly noted that the respondent was notified on
several occasions that her candidacy for partisan political office violated the
Hatch Act and that she continued her candidacy for partisan political office
unabated. ID at 19-20; see Special Counsel v. Simmons , 90 M.S.P.R. 83, ¶ 14
(2001) (explaining that continued candidacy in the face of warnings that the
activity violates the Hatch Act warrants removal). We find that her removal is
commensurate with the penalties the Board has previously imposed under similar
circumstances. See Greiner, 117 M.S.P.R. 117, ¶¶ 3, 25; Briggs, 110 M.S.P.R. 1,
¶¶ 6, 16.
¶18The respondent argues that the administrative law judge did not discuss any
mitigating factors in his penalty analysis, noting that such factors can include
unusual job tensions, personality problems, mental impairment, harassment, or
bad faith, malice, or provocation on the part of others involved in the matter.
PFR File, Tab 1 at 6. Because there is no indication in the record that she raised
any such factors, we discern no error in this regard. Moreover, in determining
that the maximum 5 -year debarment was not appropriate, the administrative law
judge considered other mitigating factors, such as her position as a
non-supervisory nurse and its lack of prominence within the DVA, her past work
record, and her apparent lack of a disciplinary record. ID at 23. However, the11
administrative law judge ultimately determined that a 2-year debarment was
appropriate after weighing the mitigating factors against the aggravating factors,
such as the seriousness of the respondent’s offense, the clarity of the notices she
received regarding her Hatch Act violations, and her refusal to modify her
behavior even after receiving multiple admonitions. ID at 22-23. We agree with
the administrative law judge that a 2-year debarment was warranted in this case.
ID at 23.
¶19As for OSC’s cross petition for review requesting that the Board enhance
the penalty imposed against the respondent to the maximum 5-year debarment, we
deny the request. The enhanced penalty requested by OSC is based on the
statutory authority provided for in the NDAA for 2018. Section 1097(k)(1) of
that Act, codified at 5 U.S.C. § 7326, provided for a range of penalties consisting
of removal, reduction in grade, debarment from Federal employment for a period
not to exceed 5 years, suspension, reprimand, an assessment of a civil penalty not
to exceed $1,000, or any combination thereof. We agree with the administrative
law judge that the maximum 5-year debarment is not warranted in light of the
mitigating factors presented here. ID at 23. Under the circumstances of this case,
we find that removal and a 2 -year debarment is an appropriate penalty.
ORDER
¶20The Board ORDERS that the respondent be removed from her position and
debarred from Federal employment for 2 years. The Board also ORDERS OSC to
notify the Board within 30 days of the date of this Final Order whether the
respondent has been removed and debarred. This is the final decision of the Merit
Systems Protection Board in this appeal. 5 C.F.R. § 1201.113(b).12
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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 information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on14
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or15
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Miles_BeverlyCB-1216-22-0001-T-1_Final_Order.pdf | 2024-11-07 | null | CB-1216-22-0001-T-1 | NP |
374 | https://www.mspb.gov/decisions/nonprecedential/Givens_Hazel_D_AT-844E-20-0440-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAZEL D. GIVENS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-844E-20-0440-I-1
DATE: November 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Hazel D. Givens , Callahan, Florida, pro se.
Shawna Wheatley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
denying her application for a disability retirement annuity under the Federal
Employees’ Retirement System (FERS). On petition for review, the appellant
argues that the initial decision was based solely on her April 14, 2018 femur
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
injury, for which she underwent surgery and has recovered, whereas the basis for
her retirement application included her right knee or bilateral knee problems that
began in 1995. She appears to take issue with the administrative judge’s finding
that her continued absences from work, beginning on April 16, 2018, were not
supported by corroborating medical evidence and testimony. For the first time
with her petition for review, she submits medical evidence and other
documentation of her prior knee injuries and continued, intermittent treatment for
her bilateral knees through May 2020. Generally, we grant petitions such as 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).
¶2Concerning the evidence submitted by the appellant for the first time with
her petition for review, the Board will not consider such evidence absent a
showing that it was unavailable before the record was closed despite the party’s
due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). In
addition, the Board will not grant a petition for review absent a showing that it is
of sufficient weight to warrant an outcome different from that of the initial
decision. See Spivey v. Department of Justice , 2022 MSPB 24, ¶ 15; Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980). Here, the appellant has2
asserted that she requested her injury records from the Office of Workers’
Compensation Programs (OWCP) in April 29, 2019, Petition for Review (PFR)
File, Tab 1 at 5-6; Initial Appeal File (IAF), Tab 1 at 10, but she does not identify
whether any of the documents she submits on review that are dated before that
request are the documents she requested from OWCP, or when she received them,
PFR File, Tab 1 at 7-45. The appellant also submits, for the first time on review,
doctor’s notes from visits between August 24, 2018, and May 11, 2020, which
generally support her testimony regarding knee pain and problems ambulating.
Id. at 46-61. However, she has not explained why she could not obtain these
records and submit them to the administrative judge prior to the close of the
record below. PFR File, Tab 1 at 46-61. Even if the appellant could establish
that any of the documents she submits on review were unavailable, despite her
due diligence, before the close of the record below, the totality of the evidence
would not show that she was unable to render useful and efficient service in her
position.2 See 5 U.S.C. § 8451(a)(1)(B) (stating that an employee shall not be
eligible for disability retirement under the FERS if the position is one in which
the employee would be able to “render useful and efficient service”); see Rucker
v. Office of Personnel Management , 117 M.S.P.R. 669, ¶ 10 (2012) (describing
the two methods by which the appellant can meet this statutory requirement);
5 C.F.R. § 844.103(a)(2). Therefore, the newly submitted evidence does not
warrant an outcome different from that of the initial decision, and we affirm the
initial decision.
2 We assume without deciding that the appellant’s bilateral knee problems were related
to a medical condition on which she based her disability application. IAF, Tab 5 at 13,
38; see Chappell v. Office of Personnel Management , 79 M.S.P.R. 302, ¶¶ 6-7 (1998)
(explaining that the Board may not consider evidence relating to a “totally different or
additional medical condition” that was never the subject of a retirement application).3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Givens_Hazel_D_AT-844E-20-0440-I-1_Final_Order.pdf | 2024-11-07 | HAZEL D. GIVENS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-20-0440-I-1, November 7, 2024 | AT-844E-20-0440-I-1 | NP |
375 | https://www.mspb.gov/decisions/nonprecedential/Frayser_Bryan_L_DE-0842-19-0462-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRYAN L. FRAYSER,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-0842-19-0462-I-1
DATE: November 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Peter C. Rombold , Esquire, Junction City, Kansas, for the appellant.
Asmaa Abdul-Haqq and Gedety Serralta-Aldrich , Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s decision that he failed to make a timely request for service
credit under the Federal Employees’ Retirement System special firefighter
retirement provisions and denied him the requested retirement coverage. On
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
petition for review, the appellant repeats his argument that his appeal concerns a
request for individual service credit for his service as a Fire Prevention Specialist
and does not challenge the agency’s classification of the position as secondary,
and therefore the 6-month procedural time limit for filing a request with the
agency for enhanced retirement coverage pursuant to 5 C.F.R. § 842.804(c) does
not apply to his appeal. Petition for Review (PFR) File, Tab 3 at 8-12; Initial
Appeal File (IAF), Tab 10 at 5, Tab 14 at 6, Tab 18 at 4-7; see 5 C.F.R.
§ 842.807(a)-(b). He also repeats his argument that he was unaware of his
retirement status and therefore had good cause for not filing a request within the
time limit, and he asserts that the administrative judge erred in finding otherwise.
PFR File, Tab 3 at 10-12; IAF, Tab 10 at 5-8, Tab 18 at 6. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Frayser_Bryan_L_DE-0842-19-0462-I-1_Final_Order.pdf | 2024-11-07 | BRYAN L. FRAYSER v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-0842-19-0462-I-1, November 7, 2024 | DE-0842-19-0462-I-1 | NP |
376 | https://www.mspb.gov/decisions/nonprecedential/Ramsey_Elder_G_NY-0752-21-0018-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELDER G. RAMSEY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
NY-0752-21-0018-I-1
DATE: November 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Albert Lum , Brooklyn, New York, for the appellant.
David S. Friedman , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal as untimely filed. On petition for review, the
appellant contests the merits of her removal and reiterates her claim that she did
not receive the agency’s decision letter. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain3
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 4
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Ramsey_Elder_G_NY-0752-21-0018-I-1_Final_Order.pdf | 2024-11-05 | ELDER G. RAMSEY v. UNITED STATES POSTAL SERVICE, MSPB Docket No. NY-0752-21-0018-I-1, November 5, 2024 | NY-0752-21-0018-I-1 | NP |
377 | https://www.mspb.gov/decisions/nonprecedential/Oliver-Green_Kelly_L_PH-315H-21-0007-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KELLY LATRICE OLIVER-GREEN,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-315H-21-0007-I-1
DATE: November 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kelly Latrice Oliver-Green , Baltimore, Maryland, pro se.
Lauren Donner Chait , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review. We MODIFY the initial decision to expressly find that the appellant
did not make a nonfrivolous allegation that she was an “employee” within the
meaning of 5 U.S.C. § 7511(a)(1)(A). Except as expressly modified herein, we
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
The appellant began working for the agency as a Customer Service
Representative effective March 29, 2020. Initial Appeal File (IAF), Tab 1 at 7.
Her appointment was subject to a 1-year probationary period. Id. Two days after
beginning her employment, the appellant executed a Declaration for Federal
Employment Form 306 (OF-306), stating she had not been fired from a job during
the last 5 years. IAF, Tab 1 at 7, Tab 6 at 24-25. She also completed a
Questionnaire for Public Trust Positions (SF-85P), certifying that she had not
been fired from a job in the last 7 years. IAF, Tab 1 at 7, Tab 6 at 27. On
September 28, 2020, 7 months into her employment, the agency notified the
appellant that she was being terminated for post-appointment reasons, effective
immediately, because she failed to disclose on her OF-306 and SF-85P that she
had been terminated from a position approximately 5 months before she
commenced employment with the agency. IAF, Tab 1 at 7-10 . 2
The appellant appealed her probationary termination to the Board. IAF,
Tab 1. The administrative judge issued an acknowledgment order advising the
appellant of her jurisdictional burden. IAF, Tab 2 at 1 -5. The appellant did not
file a response. The agency requested that the appeal be dismissed for lack of
jurisdiction. IAF, Tab 6. The administrative judge subsequently issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 7, Initial
Decision (ID). In pertinent part, the administrative judge explicitly found that the
Board lacked jurisdiction over the appeal because the appellant failed to make a
nonfrivolous allegation that the termination was due to marital status
discrimination or partisan political reasons. ID at 3-5. She also found that the
termination did not involve pre-appointment conduct. ID at 4. The
administrative judge noted that, in order to qualify as an “employee” with Board
appeal rights pursuant to 5 U.S.C. chapter 75, an individual in the competitive
service must show that she either is not serving a probationary period under an
initial appointment or has completed 1 year of current continuous service under
an appointment other than a temporary one limited to 1 year or less. ID at 2-3.
The administrative judge acknowledged the appellant’s statement that she only
had 7 months of Federal service, and she appeared to implicitly find that the
appellant did not make a nonfrivolous allegation of Board jurisdiction in this
regard. ID at 2-5.
The appellant filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 3. On petition for review, the
appellant attaches three emails. PFR File, Tab 1 at 4-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). We affirm the administrative
judge’s explicit finding that the Board lacked jurisdiction over the appeal because3
the appellant failed to make a nonfrivolous allegation that the termination was
due to marital status discrimination or was based on partisan political reasons or
pre-appointment conduct.
We modify the initial decision to supplement the administrative judge’s
analysis and explicitly find that the appellant did not make a nonfrivolous
allegation that she was “employee” with appeal rights under 5 U.S.C. chapter 75.
An individual in the competitive service must show that she is either not serving a
probationary period under an initial appointment or has completed 1 year of
current continuous service under an appointment other than a temporary one
limited to 1 year or less. 5 U.S.C. § 7511(a)(1)(A); Hurston v. Department of the
Army, 113 M.S.P.R. 34, ¶ 9 (2010). In her initial appeal, the appellant admits that
she only had 7 months of Federal service at the time of her termination, she
answered “yes” to the question of whether she was serving a “probationary, trial,
or initial service period” at the time of the action, and she checked the box
indicating that she was challenging a “[t]ermination during probationary or initial
service period.” IAF, Tab 1 at 1, 3. We conclude that the appellant has not made
a nonfrivolous allegation that she has satisfied either prong of 5 U.S.C. § 7511(a)
(1)(A).
On review, the appellant argues that she was “falsely terminated” and her
“initial appeal statement was not taken into consideration.” PFR File, Tab 1 at 3.
We have considered the statements in her initial appeal.2 However, the merits of
the underlying termination are not relevant to the question of whether the Board
has jurisdiction in this matter.
Regarding the three emails, the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
2 Because none of the underlying facts are in dispute and the appellant has not made
nonfrivolous allegations of jurisdiction, it was not error for the administrative judge to
cite to the agency’s submissions as background in the initial decision. Cf. Ferdon v.
U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994) (noting that the administrative judge
may not weigh evidence and resolve conflicting assertions of the parties based upon the
agency’s evidence) . 4
unavailable before the record was closed before the administrative judge despite
the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211,
213-14 (1980). The appellant has not asserted that the emails were unavailable
prior to the close of the record before the administrative judge. PFR File, Tab 1
at 3. Further, the documents are unreadable. Id. at 4-6. On June 9, 2021, the
Board issued an order instructing the appellant to resubmit the documents in a
readable format within 10 days of issuance, PFR File, Tab 4; however, the
appellant did not respond or otherwise resubmit the emails. Therefore, the Board
declines to consider the emails attached to the appellant’s petition for review.
Based on the foregoing, we deny the petition for review and affirm the
initial decision as expressly modified.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Oliver-Green_Kelly_L_PH-315H-21-0007-I-1_Final_Order.pdf | 2024-11-05 | null | PH-315H-21-0007-I-1 | NP |
378 | https://www.mspb.gov/decisions/nonprecedential/Nesler_JamesPH-0841-23-0175-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES NESLER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0841-23-0175-I-1
DATE: November 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Nesler , Hazle Township, Pennsylvania, pro se.
Karen Silveira and Tanisha Elliott Evans , Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration of the Office of Personnel Management (OPM)
affirming his retirement annuity and annuity supplement amounts under 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).
Federal Employees’ Retirement System (FERS). Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2On review, the appellant reasserts that OPM’s calculations of his retirement
annuity and annuity supplement were incorrect. Petition for Review (PFR) File,
Tab 1 at 3. We agree with the administrative judge’s conclusion in the initial
decision that the appellant did not prove by preponderant evidence that he was
entitled to the benefits he is seeking based on his alternative calculations. Initial
Appeal File (IAF), Tab 15, Initial Decision (ID) at 7; see Cheeseman v. Office of
Personnel Management , 791 F.2d 138, 140-41 (Fed. Cir. 1986) (finding that the
burden of proving entitlement to retirement benefits is on the applicant); 5 C.F.R.
§ 1201.56(b)(2)(ii) (providing the same). Although the appellant disagrees with
OPM’s calculations of his benefits and has provided, both before the
administrative judge and on review, his method of computation that he believes is
correct, he has not identified any authority or basis to support his method. PFR
File, Tab 1; IAF, Tabs 1, 3-5, 9-10, 12, 14; ID at 6-7. Therefore, we find no basis
to disturb the initial decision.2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Nesler_JamesPH-0841-23-0175-I-1_Final_Order.pdf | 2024-11-05 | JAMES NESLER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0841-23-0175-I-1, November 5, 2024 | PH-0841-23-0175-I-1 | NP |
379 | https://www.mspb.gov/decisions/nonprecedential/O'Hagan_JustinAT-1221-23-0326-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUSTIN O’HAGAN,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
AT-1221-23-0326-W-1
DATE: November 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Brian Henson , Esquire, Decatur, Georgia, for the appellant.
Laura T. VanderLaan , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
* Member Kerner recused himself and did not participate in the adjudication of
this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed this individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
¶2The administrative judge found that although the appellant met some other
jurisdictional requirements, he did not present the requisite nonfrivolous
allegations of protected whistleblowing. Initial Appeal File (IAF), Tab 10, Initial
Decision (ID) at 5-10. On petition for review, the appellant argues that the
administrative judge rendered her finding in a conclusory manner, without any
citation to the record. Petition for Review (PFR) File, Tab 1 at 2-3. However,
the initial decision reflects otherwise. ID at 7-9 (citing IAF, Tab 8 at 7 -8,
16-130). We recognize that the administrative judge did not cite or discuss
everything the appellant submitted below. E.g., IAF, Tab 8 at 134-48. However,
an administrative judge’s failure to mention all of the evidence of record does not
mean that they did not consider it in reaching their 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).
¶3The appellant next argues that he “made clear disclosures of violations of
law and regulations” or “an abuse of authority” when he disclosed “bullying
behavior” by two members of his supervisory chain. PFR File, Tab 1 at 3-7.2
According to the appellant, this constituted nonfrivolous allegations of
disclosures protected under 5 U.S.C. § 2302(b)(8). E.g., id. at 6-7. Yet, we agree
with the administrative judge’s conclusion to the contrary. Throughout his
arguments below, the appellant stated that he disclosed bullying and workplace
violence. He did not, however, present examples and explanations to
nonfrivolously allege that he reasonably believed this rose to the level of a
protected disclosure. IAF, Tab 1 at 7, Tab 8 at 4-11; see Salerno v. Department
of the Interior , 123 M.S.P.R. 230, ¶ 7 (2016) (finding that an appellant’s
allegations of disclosures did not meet the nonfrivolous standard for establishing
jurisdiction in an IRA appeal because they were not sufficiently specific and
detailed). The appellant did submit extensive unexplained documentation. IAF,
Tab 1 at 12-39, Tab 8 at 13-148. However, to the extent that this was intended to
supplement his arguments to the administrative judge about disclosures of
bullying or workplace violence, it was insufficient. The documentation contains
extensive allegations about the appellant expressing dissatisfaction with his
management chain over several years, but it fails to nonfrivolously allege that this
rose to the level of a protected disclosure about bullying.
¶4On review, the appellant also suggests that he engaged in appeals,
complaints, or grievances that could be whistleblowing activity protected under
5 U.S.C. § 2302(b)(9). PFR File, Tab 1 at 10. In addition, the appellant asserts
that he disclosed “inappropriate granting of research funding to outside groups”
and one supervisor’s “interfering with grant funding decisions,” contrary to
regulation. Id. at 12-13. Lastly, he alleges that he disclosed possible reprisal for
his having disclosed bullying and workplace violence. Id. at 13. These are new
theories of his case for jurisdiction, presented for the first time on review. In his
arguments before the administrative judge, the appellant did not identify any of
this as the whistleblowing underlying his claim of reprisal in the instant IRA
appeal. See IAF, Tab 1 at 7, Tab 8 at 4-11. 3
¶5The Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Banks v.
Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). However, the Board
does oftentimes consider new arguments on the issue of jurisdiction because
jurisdiction is always before the Board and may be raised by any party or sua
sponte by the Board at any time. DeGrella v. Department of the Air Force ,
2022 MSPB 44, ¶ 16 n.5. Accordingly, we have considered these new arguments,
but we find them unavailing.
¶6In support of the new arguments or assertions he presented for the first time
on review, the appellant has only vaguely alluded to the extensive allegations he
submitted to OSC. PFR File, Tab 1 at 10, 12-13. In turn, those allegations he
submitted to OSC are difficult to follow in terms of identifying what his alleged
whistleblowing was and why it might be protected. E.g., IAF, Tab 8 at 30-31, 36-
37, 39-47, 51-64, 66-67. We have attempted to compare his brief arguments on
review with the portions of his OSC submissions he referenced, but we are unable
to discern any nonfrivolous allegations of protected disclosures or activity. For
all these reasons, we are not persuaded by the appellant’s petition for review.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | O'Hagan_JustinAT-1221-23-0326-W-1_Final_Order.pdf | 2024-11-05 | null | AT-1221-23-0326-W-1 | NP |
380 | https://www.mspb.gov/decisions/nonprecedential/Oakley_Khristina_J_PH-315H-20-0443-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KHRISTINA J. OAKLEY,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
PH-315H-20-0443-I-1
DATE: November 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ralph B. Pinskey , Esquire, Harrisburg, Pennsylvania, for the appellant.
Justin C. Nell , New Cumberland, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction. On petition for review,
she argues that the administrative judge erred in finding that she was not a
“statutory employee” under chapter 75 because, at the time of her termination,
she was a current, non-temporary agency employee . Petition for Review (PFR)
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
File, Tab 1 at 3-4. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
reflect the proper burden of establishing jurisdiction , we AFFIRM the initial
decision.
In the initial decision, the administrative judge dismissed the appeal on the
basis that the appellant failed to prove jurisdiction by preponderant evidence.
Initial Appeal File (IAF), Tab 10, Initial Decision at 2-3, 7. This was in error.
When the appellant makes a nonfrivolous allegation that the Board has
jurisdiction over an appeal, she is entitled to a hearing on the jurisdictional
question. Liu v. Department of Agriculture , 106 M.S.P.R. 178, ¶ 8 (2007); see
5 C.F.R. § 1201.56(b)(2)(i)(A). Here, the administrative judge did not hold the
appellant’s requested hearing. IAF, Tab 1 at 2, ID at 1. Nevertheless, we
conclude that the administrative judge’s error is of no legal consequence because
it did not adversely affect the appellant’s substantive rights. Panter v.
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984). Here, the appellant
failed to nonfrivolously allege that she was an employee with Board appeal
rights, and thus, she was not entitled to a jurisdiction hearing.2
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Oakley_Khristina_J_PH-315H-20-0443-I-1_Final_Order.pdf | 2024-11-05 | KHRISTINA J. OAKLEY v. DEPARTMENT OF DEFENSE, MSPB Docket No. PH-315H-20-0443-I-1, November 5, 2024 | PH-315H-20-0443-I-1 | NP |
381 | https://www.mspb.gov/decisions/nonprecedential/Rogers_John_W_DC-0752-20-0302-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN W. ROGERS,
Appellant,
v.
SMITHSONIAN INSTITUTION,
Agency.DOCKET NUMBER
DC-0752-20-0302-I-2
DATE: November 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John W. Rogers , Takoma Park, Maryland, pro se.
Sarah Montgomery , Landover, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal for conduct unbecoming a supervisor and lack of candor.
On review, he reargues that the agency failed to submit to the video evidence that
would have shown that the contract employee, who was the alleged victim of his
unbecoming conduct, welcomed his behavior. 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
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
He also reargues that, during the pre-disciplinary investigation, the agency’s
investigator coerced him into admitting his unbecoming conduct by making
“[p]ersonal threats” and “standing over” the appellant. Id. He asks that the
Board review the penalty. Id. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 4
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Rogers_John_W_DC-0752-20-0302-I-2_Final_Order.pdf | 2024-11-01 | JOHN W. ROGERS v. SMITHSONIAN INSTITUTION, MSPB Docket No. DC-0752-20-0302-I-2, November 1, 2024 | DC-0752-20-0302-I-2 | NP |
382 | https://www.mspb.gov/decisions/nonprecedential/Santos_Reynaldo_D_SF-844E-20-0518-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REYNALDO D. SANTOS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-20-0518-I-1
DATE: November 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Elizabeth D. Santos , Oakland, California, for the appellant.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of an Office of Personnel Management (OPM)
reconsideration decision as untimely filed. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant cites health issues for his delay in filing his appeal
and claims that the administrative judge did not grasp the severity of the effects
of the treatments for his medical conditions. Petition for Review (PFR) File,
Tab 1 at 5-8. Regarding the appellant’s health issues, the administrative judge
found that there are no medical records after January 28, 2020, that would
substantiate the appellant’s claim that he was unable to file his appeal until
June 4, 2020;2 thus, they do not show that his conditions prevented him from
timely filing his Board appeal or a request for an extension of time. Initial
2 The appellant asserts in his petition for review that he was attempting to obtain
additional medical evidence. PFR File, Tab 1 at 3. In an untimely reply to the agency’s
response to the petition for review, the appellant submits hundreds of pages of medical
evidence. PFR File, Tab 8 at 20-491. Most of the medical evidence is already a part of
the record below, and therefore, it is not new. See Meier v. Department of the Interior ,
3 M.S.P.R. 247, 256 (1980). The appellant provides two new letters from his
physicians from February and March 2021 detailing his fatigue from dealing with his
multiple medical conditions and treatments in 2020, including surgery for stents in his
heart and kidney dialysis. PFR File, Tab 8 at 21, 23. The appellant has not shown that
these documents, which predate the close of the record on review, were not readily
available before the record closed on review despite his due diligence and also has not
shown that they are of sufficient weight to warrant a different outcome in this appeal.
See Ellis v. Department of the Navy , 117 M.S.P.R. 511, ¶ 12 (2012); 5 C.F.R.
§ 1201.114(k). 2
Appeal File, Tab 23, Initial Decision at 6. We agree with the administrative
judge that the appellant failed to show that there was good cause for his delay in
filing. Id. Accordingly, we affirm the administrative judge’s decision to dismiss
the appeal as untimely filed.3
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 It appears that the appellant’s petition for review was filed 5 days after the filing
deadline. PFR File, Tab 1 at 10; see 5 C.F.R. § 1201.4( l) (stating that the date of a
filing submitted by mail is determined by the postmark date). In light of our finding
that the administrative judge correctly found the appellant’s initial appeal untimely filed
by approximately 4 months without a showing of good cause, we need not resolve
whether the appellant has shown good cause for his delay in filing the petition for
review.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Santos_Reynaldo_D_SF-844E-20-0518-I-1_Final_Order.pdf | 2024-11-01 | REYNALDO D. SANTOS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-20-0518-I-1, November 1, 2024 | SF-844E-20-0518-I-1 | NP |
383 | https://www.mspb.gov/decisions/nonprecedential/Coan_Timothy_NY-0752-14-0300-C-1_and_NY-0752-14-0300-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY COAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBERS
NY-0752-14-0300-X-1
NY-0752-14-0300-C-1
DATE: November 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy Coan , Patchogue, New York, pro se.
Jack P. DiTeodoro , Esquire, Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1In July 2022, the Board affirmed as modified the compliance initial
decision, which granted the appellant’s petition for enforcement upon finding that
the agency had materially breached the parties’ August 2014 settlement
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
agreement. Coan v. Department of Veterans Affairs , MSPB Docket No. NY-
0752-14-0300-C -1, Order (July 27, 2022). The Board referred the matter to its
Office of General Counsel to obtain the agency’s compliance with the settlement
agreement and issue a final decision. Id., ¶¶ 1, 7, 23. The Board informed the
parties that the referral to the Office of General Counsel would be assigned
MSPB Docket No. NY-0752-14-0300-X-1. Id., ¶ 25. We now JOIN these
matters for processing and, for the reasons set forth below, DISMISS the petition
for enforcement as settled.
¶2After referral of this matter to the Board’s Office of General Counsel, the
agency submitted a document signed by the parties and their representatives titled
“SETTLEMENT AGREEMENT.” Coan v. Department of Veterans Affairs ,
MSPB Docket No. NY -0752-14-0300-X-1, Compliance Referral File (CRF),
Tab 4 at 4-7. The document provides, among other things, that the appellant
agrees to withdraw his enforcement petition in exchange for promises made by
the agency. Id. at 4-6. Although the settlement agreement does not reference
MSPB Docket No. NY-0752-14-0300-X-1, which as noted is a derivative of
MSPB Docket No. NY-0752-14-0300-C-1, it is clear that the parties intend that
the agreement cover the matter referred to the Board’s Office of General Counsel
assigned the X-1 docket number.2
¶3Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017).
2 The agreement also states that the appellant “agrees to waive any and all actions,
claims, complaints, grievances, appeals and proceedings of whatever nature against the
[agency] arising from his employment . . . .” CRF, Tab 4 at 4.2
¶4We find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. CRF, Tab 4 at 4-7. In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
Accordingly, we find that dismissing the petition for enforcement with prejudice
to refiling (i.e., the parties normally may not refile this appeal) is appropriate
under these circumstances, and we accept the settlement agreement into the record
for enforcement purposes.
¶5This is the final decision of the Merit Systems Protection Board in this
compliance proceeding. Title 5 of the Code of Federal Regulations,
section 1201.113 (5 C.F.R. § 1201.113).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
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
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Coan_Timothy_NY-0752-14-0300-C-1_and_NY-0752-14-0300-X-1_Final_Order.pdf | 2024-11-01 | TIMOTHY COAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-0752-14-0300-C-1, November 1, 2024 | NY-0752-14-0300-C-1 | NP |
384 | https://www.mspb.gov/decisions/nonprecedential/Watkins_Tiffany_P_DE-0752-21-0157-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIFFANY P. WATKINS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-0752-21-0157-I-1
DATE: November 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeff T. Schrameck , Esquire, Canton, Michigan, for the appellant.
Bradley M. Shaughnessy , Esquire, Fayetteville, Arkansas, for the agency.
Tijuana D. Griffin , North Little Rock, Arkansas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her alleged involuntary resignation appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review. Except as expressly MODIFIED to the extent that the
administrative judge incorrectly suggested that the appellant was required to
allege that the agency affirmatively provided misinformation in order to state an
involuntary resignation claim, we AFFIRM the initial decision.
BACKGROUND
The appellant was the Assistant Chief of Prosthetic Services at the
Department of Veterans Affairs’ Eastern Colorado Healthcare System. Initial
Appeal File (IAF), Tab 6 at 10. The agency proposed to remove her for conduct
unbecoming a supervisory employee. Id. at 10-11. The appellant met with the
deciding official and an agency Employee and Labor Relations Specialist to
respond to the proposed notice. IAF, Tab 6 at 12-13, 17, Tab 9 at 14. According
to the appellant, at that meeting, she stated that she had “numerous offers for
other positions” within the agency and “requested that [she] be able to resign and
have the matter of the proposed removal closed.” IAF, Tab 9 at 14. The agency
rejected her request despite these job offers. Id.
Eleven days later, the Employee and Labor Relations Specialist and another
agency official met with the appellant and notified her that she would be removed2
effective that same day. IAF, Tab 6 at 17-19, Tab 9 at 14-15. According to the
appellant, a few minutes after this meeting concluded, the Employee and Labor
Relations Specialist called the appellant and informed her “that the agency would
still accept [her] resignation,” but he did not say the Standard Form 50 (SF-50)
documenting her resignation would reflect that it was in lieu of the removal
action. IAF, Tab 6 at 21, Tab 9 at 15. The appellant resigned that day. IAF,
Tab 6 at 15. The SF-50 documenting her resignation reflected that she resigned
after receiving notice of the decision to remove her for conduct unbecoming a
supervisory employee. Id. at 21.
The appellant filed the instant appeal alleging her resignation was
involuntary and requesting a hearing. IAF, Tab 1 at 2-3, 5. The agency moved to
dismiss the appeal for lack of jurisdiction. IAF, Tab 6 at 4-6. The administrative
judge advised the appellant of her burden to establish jurisdiction. IAF, Tab 7.
She explained that, to be entitled to a hearing on the jurisdictional issue, the
appellant must make a nonfrivolous allegation that, as relevant here, the agency
made misleading statements on which she relied to her detriment. Id. at 2. The
appellant responded that her resignation was involuntary because the agency
effectively misled her when it failed to inform her that the SF -50 processing her
resignation would make note of the removal action. IAF, Tab 9 at 8-10.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 1 at 2, Tab 11, Initial Decision (ID) at 2, 6-7. The administrative judge
reasoned that the appellant’s choice between resigning and challenging her
removal did not rebut the presumption that her resignation was voluntary. ID
at 5-6. The administrative judge also concluded that the appellant did not
nonfrivolously allege that her resignation was the result of agency
misrepresentation. Id. The appellant has filed a petition for review of the initial
decision, and the agency has responded. Petition for Review (PFR) File,
Tabs 3, 5.3
DISCUSSION OF ARGUMENTS ON REVIEW
The sole issue on review is whether the appellant is entitled to a
jurisdictional hearing because she made a nonfrivolous allegation the agency had
reason to know she resigned because she erroneously believed that doing so
would allow her to have a clean record. The Board’s jurisdiction is limited to
those matters over which it has been given jurisdiction by law, rule, or regulation.
Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). The
appellant has the burden of proof on the issue of jurisdiction, and if she makes a
nonfrivolous allegation that the Board has jurisdiction over an appeal, she is
entitled to a hearing on the jurisdictional question. Liu v. Department of
Agriculture, 106 M.S.P.R. 178, ¶ 8 (2007); 5 C.F.R. § 1201.56(b)(2)(i)(A).2 We
agree with the administrative judge that the appellant did not make a nonfrivolous
allegation of Board jurisdiction over the instant appeal.
We modify the initial decision to find that the appellant did not nonfrivolously
allege that she resigned because she believed doing so would result in a clean
record.
The administrative judge found that the appellant did not allege that the
agency induced her retirement by affirmatively misrepresenting that it would not
make note of her removal decision on her SF-50.3 ID at 6. An employee-initiated
action, such as resignation or retirement, is presumed to be voluntary and thus
2 We recognize that the agency issued the removal action at issue here under the
Department of Veterans Affairs Accountability and Whistleblower Protection Act of
2017 (codified as amended at 38 U.S.C. § 714). IAF, Tab 6 at 17-19. Thus, to prove
jurisdiction, the appellant must establish that she is a “covered individual” and that her
resignation is tantamount to a constructive removal. 38 U.S.C. § 714(a), (c)(4); see
Stroud v. Department of Veterans Affairs , 2022 MSPB 43, ¶¶ 7, 10-13 (discussing these
statutory requirements in the context of an election of forum under 5 U.S.C. § 7121(e)).
It appears from the record that the appellant, as an individual appointed under 38 U.S.C.
§ 7401(3), has established that she is a covered employee. IAF, Tab 6 at 8, 21; see
38 U.S.C. § 714(h)(1). In any event, we need not decide this issue in light of our
determination that the appellant did not suffer a covered personnel action under
38 U.S.C. § 714.3 The parties do not dispute the administrative judge’s finding that, in essence, the
appellant did not nonfrivolously allege that her retirement was the result of duress or
coercion. ID at 3-6. We discern no basis to disturb that finding. 4
outside the Board’s jurisdiction. Vitale v. Department of Veterans Affairs ,
107 M.S.P.R. 501, ¶ 17 (2007). An involuntary resignation is tantamount to a
removal, however, and is therefore subject to the Board’s jurisdiction. Id. A
resignation action is involuntary if, as relevant here, the agency made misleading
statements upon which the employee reasonably relied to her detriment . Scharf v.
Department of the Air Force , 710 F.2d 1572, 1574 -75 (Fed. Cir. 1983).
The administrative judge found that the appellant did not claim that the
agency made an affirmative misrepresentation as to how her resignation would be
documented. ID at 5-6. The parties do not dispute this finding on review, and we
discern no basis to disturb it. The appellant admits that the agency never
specified the terms under which it would accept her resignation. PFR, Tab 3
at 12. She concedes that the agency rejected her initial request to resign without
addressing her request to close out the removal matter. IAF, Tab 9 at 6; PFR File,
Tab 3 at 11-12. Therefore, the Board does not have jurisdiction over her
resignation based on any affirmative agency misrepresentation.
On review, the appellant argues that the administrative judge erred in not
following Wills v. Department of the Navy , 37 M.S.P.R. 137, 141 (1988), which
reflects that a retirement is involuntary if the agency fails to correct any
erroneous information on which it has reason to know the employee is relying.
PFR File, Tab 3 at 6, 13. In Wills, 37 M.S.P.R. at 138-39, 141, the appellant
alleged that he thought he could preserve his clean record if he retired, but
instead the SF-50 effectuating his retirement noted that he retired after receiving
a notice of removal. The Board concluded that he made a nonfrivolous allegation
of jurisdiction when he claimed that, because of lack of information, he
erroneously thought he could preserve a clean record. Id. at 140-41.
The administrative judge did not address this argument, which the appellant
raised below. IAF, Tab 9 at 7-10; ID. Therefore, we do so here, still finding that
the appellant did not make a nonfrivolous allegation of an involuntary
resignation. An appellant must nonfrivolously allege that she relied on her5
erroneous belief to her detriment in order to receive a jurisdictional hearing. See
Morrison v. Department of the Navy , 122 M.S.P.R. 205, ¶¶ 7-10 (2015) (finding
that an appellant was entitled to a jurisdictional hearing when he nonfrivolously
alleged that his retirement was involuntary because he materially relied on agency
misinformation); Salazar v. Department of the Army , 115 M.S.P.R. 296, ¶ 9
(2010) (explaining that to prove that an alleged involuntary action resulted from
misinformation, an appellant must show, as relevant here, that he reasonably
relied on the misinformation to his detriment).
Here, we find that the appellant did not nonfrivolously allege that she
relied on her mistaken belief that her resignation would result in a clean record.
The appellant’s attorney has alleged that the appellant resigned in reliance on her
reasonable belief that she would receive a clean resignation. IAF, Tab 9 at 6-7, 9;
PFR File, Tab 3 at 7-8, 13-14. However, a representative’s statements in a
pleading, such as those here, are not evidence, particularly when an affidavit
completed by the appellant does not support those statements. Rose v.
Department of Defense , 118 M.S.P.R. 302, ¶ 10 (2012). To support his
statements, the appellant’s attorney cites to a declaration completed by the
appellant, which is in the record below. IAF, Tab 9 at 9; PFR File, Tab 3 at 7-8.
The appellant identified in her declaration the information that she believed the
agency should have provided. Specifically, she stated that the Employee and
Labor Relations Specialist “never stated [her] resignation would be in lieu of
removal.” IAF, Tab 9 at 15. However, missing from her declaration is any claim
that she believed that she would receive a clean resignation or that she relied on
such a belief in resigning. Id. at 13-15. Accordingly, we affirm the initial
decision, as modified above, still finding that the Board lacks jurisdiction over
this appeal.6
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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 Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on8
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or9
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Watkins_Tiffany_P_DE-0752-21-0157-I-1_Final_Order.pdf | 2024-11-01 | TIFFANY P. WATKINS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-0752-21-0157-I-1, November 1, 2024 | DE-0752-21-0157-I-1 | NP |
385 | https://www.mspb.gov/decisions/nonprecedential/Montano_Aurora_J_SF-315H-20-0490-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AURORA J. MONTANO,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-315H-20-0490-I-1
DATE: November 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Aurora J. Montano , San Diego, California, pro se.
Mary Allmann and Michael L. Mason , San Diego, California,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. For the
reasons set forth below, the appellant’s petition for review is DISMISSED as
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
untimely filed without good cause shown for the delay. 5 C.F.R.
§ 1201.114(e), (g).
BACKGROUND
¶2The appellant was appointed to a GS-6 Medical Supply Technical position
effective March 4, 2019. Initial Appeal File (IAF), Tab 11 at 16. She had no
prior Federal service. Id. at 19. Her appointment was subject to the completion
of a 2-year initial probationary period beginning on March 4, 2019. Id. at 16.
The agency terminated the appellant effective May 15, 2020, based on her failure
to demonstrate acceptable performance and conduct. Id. at 12-14.
¶3The appellant filed a timely appeal of her probationary termination. IAF,
Tab 1 at 1. After providing jurisdictional notice and affording the parties the
opportunity to file evidence and argument, the administrative judge dismissed the
appeal for lack of jurisdiction in a July 28, 2020 initial decision, finding that the
evidence showed the agency terminated the appellant for post-appointment
reasons during her probationary period. IAF, Tab 12, Initial Decision (ID) at 1,
6-7. The initial decision specifically stated that the deadline to file a petition for
review was September 1, 2020, and provided information on how to file a petition
for review. ID at 7-8.
¶4The appellant filed her petition for review on September 11, 2020. Petition
for Review (PFR) File, Tab 1. In an acknowledgment letter, the Office of the
Clerk of the Board notified the appellant that, because she filed her petition for
review after September 1, 2020, i.e., over 35 days following the issuance of the
July 28, 2020 initial decision, it was untimely filed. PFR File, Tab 2 at 1. The
Clerk’s Office informed the appellant that the Board may dismiss her petition for
review as untimely filed unless she submitted a motion showing that her petition
for review was timely filed or that good cause existed for the filing delay. Id.
at 2. The Clerk’s Office enclosed a “Motion to Accept Filing as Timely and/or to
Ask the Board to Waive or Set Aside the Time Limit.” Id. at 7-9. The letter from2
the Clerk’s Office afforded the appellant until October 3, 2020, to file that
motion. Id. at 2.
¶5The agency has filed a response to the appellant’s petition for review,
arguing that it was untimely filed and, alternatively, that it failed to meet the
Board’s criteria for review. PFR File, Tab 3. By letter signed by the appellant
and postmarked on October 13, 2020, ten days after the deadline established by
the Clerk’s Office, the appellant filed a motion on the timeliness of her petition
for review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6A petition for review generally must be filed within 35 days after the date of
the issuance of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after the initial decision was issued,
within 30 days after the date the appellant received the initial decision. 5 C.F.R.
§ 1201.114(e). The Board will waive this time limit only upon a showing of good
cause for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good cause for
the untimely filing of a petition, a party must show that she exercised due
diligence or ordinary prudence under the particular circumstances of the case.
Rivera v. Social Security Administration , 111 M.S.P.R. 581, ¶ 4 (2009) (citing
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
diligence, whether she is proceeding pro se, and whether she has presented
evidence of the existence of circumstances beyond her control that affected her
ability to comply with the time limits or of unavoidable casualty or misfortune
which similarly shows a causal relationship to her inability to timely file her
petition. Id. (citing 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)). 3
¶7The appellant asserts in her motion to waive the time limit that she had
“received a respond back from HR not from the mspb [sic].” PFR File, Tab 4
at 1. She claims that “I know for that I never get reviewed from mspb [sic].” Id.
The appellant also addresses the merits of her termination. Id.
¶8To the extent the appellant may be claiming that she did not receive the
initial decision, we nevertheless deem her to have received the initial decision on
July 28, 2020. The appellant elected to register as an e-filer soon after filing her
appeal. IAF, Tab 2 at 2. The statement that the appellant filed and the Board’s
e-filer regulations both provide that, as a registered e-filer, she agreed to accept
service of documents through electronic service and was required to monitor her
case activity at e-Appeal to ensure she received all case related documents. Id.;
see 5 C.F.R. § 1201.14(e)(1), (j)(3) (2020). The Board’s regulations also provide
that Board documents served electronically on registered e-filers are deemed
received on the date of electronic submission. 5 C.F.R. § 1201.14(m)(2) (2020).
When a statute or regulation “deems” something to have been done, the event is
considered to have occurred whether or not it actually did. Rivera, 111 M.S.P.R.
581, ¶ 5 (citing Lima v. Department of the Air Force , 101 M.S.P.R. 64, ¶ 5
(2006)). The certificate of service for the initial decision indicates that it was
served on the appellant by electronic mail on July 28, 2020. IAF, Tab 13. There
is no indication that the email notification the appellant received regarding the
initial decision was received after the July 28, 2020 date of service. As noted
above, the appellant did not file her petition for review until September 11, 2020.
PFR File, Tab 1. Thus, we find that her petition for review was untimely filed by
10 days.
¶9Although the 10-day delay in this case is not especially lengthy, it is not
minimal. See Cabarloc v. Department of Veterans Affairs , 112 M.S.P.R. 453,
¶ 10 (2009). In any event, the Board has consistently denied a waiver of its
regulatory filing deadline when a good reason for the delay is not shown, even
when the delay is minimal and the appellant is pro se. E.g., id. The appellant has4
provided no other explanation for the period of delay in this case. The appellant
includes with her petition for review a copy of her performance plan, progress
review, and appraisal for the period covering April 1, 2019, to March 31, 2020,
which reflects a June 1, 2020 effective date for the appellant’s rating of record.
Id. at 4-11. She does not say when she received this document, but, as set forth
above, it dates from before the July 20, 2020 close of the record below on the
jurisdictional issue. Id.; IAF, Tab 10 at 1. Thus, the document is irrelevant to the
timeliness of the appellant’s petition for review or the question of whether she
has demonstrated good cause for its untimely filing.
¶10Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the appellant’s termination during her probationary period.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 7
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Montano_Aurora_J_SF-315H-20-0490-I-1_Final_Order.pdf | 2024-11-01 | AURORA J. MONTANO v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-315H-20-0490-I-1, November 1, 2024 | SF-315H-20-0490-I-1 | NP |
386 | https://www.mspb.gov/decisions/nonprecedential/Ferrell_MichelleDA-0752-20-0212-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHELLE A. FERRELL,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBER
DA-0752-20-0212-I-1
DATE: October 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michelle A. Ferrell , North Richland Hills, Texas, pro se.
Sakeena M. Adams and Mary C. Merchant , Fort Worth, Texas,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. For the reasons set forth below, the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
The appellant retired from the agency on January 31, 2020, and thereafter
filed the instant appeal asserting that her retirement was involuntary. Initial
Appeal File (IAF), Tab 1 at 3, 5. After affording the appellant her requested
hearing, the administrative judge issued a September 2, 2020 initial decision
finding that the evidence did not show the appellant’s retirement was involuntary
and dismissing the appeal for lack of jurisdiction. IAF, Tab 64, Initial Decision
(ID) at 20-21. The initial decision informed the appellant that it would become
final on October 7, 2020, unless a petition for review was filed by that date and
informed the appellant how to file a petition for review. ID at 21-22.
On September 8, 2021, the appellant filed a petition for review and
included with her filing a motion purporting to show good cause for her untimely
filing. Petition for Review (PFR) File, Tab 2 at 4, 6-28. The agency did not file
a response.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the date of issuance,
within 30 days after the date she received the initial decision. 5 C.F.R.
§ 1201.114(e). The Board will waive its filing deadline only upon a showing of
good cause for the delay in filing. 5 C.F.R. §§ 1201.114(f), (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 the case.
Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). The Board
will consider the length of the delay, the reasonableness of an appellant’s excuse
and her showing of due diligence, whether she is proceeding pro se, and whether2
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 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).
Applying these factors, we find that the appellant failed to establish good
cause for her untimely petition for review. Though due on October 7, 2020, the
appellant did not file her petition for review until September 8, 2021,
approximately 11 months late.2 Although she is proceeding pro se, the delay of
11 months is significant. Kroeger v. U.S. Postal Service , 112 M.S.P.R. 488, ¶ 7
(2009) (finding an almost 5 -month delay in filing a PFR significant). In addition,
the appellant’s explanations do not offer good cause for this significant delay.
The appellant asserts that she did not initially understand that she could file
a petition for review despite a lack of a quorum on the Board. PFR File, Tab 2
at 6-7, 26, 34. She claims that she “hesitantly” sent an appeal to the Equal
Employment Opportunity Commission (EEOC) Office of Federal Operations
(OFO) “thinking it was her only option.” Id. at 6. She also appears to suggest
that the administrative judge discouraged her from filing a petition of review with
the Board because of the quorum issue. Id. at 4. She claims that when she
realized she could file her petition for review absent a quorum of Board members,
2 Although the appellant claims not to have received the initial decision until
September 8, 2020, PFR File, Tab 2 at 3, she was registered as an e-filer, and the initial
decision was served electronically on her on September 2, 2020. IAF, Tab 1 at 2,
Tab 65. Our regulations provide that pleadings and Board documents served
electronically on registered e-filers are deemed received on the date of electronic
submission. Rivera v. Social Security Administration , 111 M.S.P.R. 581, ¶ 5 (2009);
5 C.F.R. § 1201.14(m)(2) (2020). We therefore deem the appellant to have received the
initial decision on September 2, 2020. In any event, even if the appellant did not
receive the initial decision until September 8, 2020, she still has not shown that her
petition for review was timely filed or good cause exists for the lengthy filing delay. 3
she “immediately,” on February 9 and 11, 2021, notified the Office of the Clerk
of the Board. Id. at 26.3
These arguments fail to establish good cause for her delay because
language in the September 2, 2020 initial decision informed her of her right to
file a petition for review and how to do so. ID at 21-22. Specifically, under the
heading “BOARD REVIEW,” the initial decision states: “ You may request Board
review of this initial decision by filing a petition for review,” followed by
detailed instructions for filing. Id. Under the heading, “NOTICE OF LACK OF
QUORUM,” the initial decision explains that the Board is unable to issue
decisions on petitions for review due to a lack of quorum, but adds: “ parties may
continue to file petitions for review during this period . . . .”4 ID at 22 (emphasis
added).
The appellant also states that her disabilities, including “not being able to
focus” and damage to her home caused by a storm on February 16, 2021,
3 The appellant also argues that the agency representative “sabotaged” her case by
referring to it as a mixed case, citing the agency’s response to her petition to the EEOC
OFO stating, “When the Board denies jurisdiction in a mixed case complaint, the EEOC
has held that the case is considered a ‘non-mixed’ matter and should be administratively
closed.” PFR File, Tab 2 at 6-7, 31. We note that OFO closed the mixed-case petition
and referred the remaining discrimination complaint back to the agency for further
processing as a non-mixed case. Id. at 36. OFO also instructed the agency to notify the
appellant that she had the right to contact an EEO counselor within 45 days of OFO’s
decision. Id. In any event, the appellant does not show how these events contributed to
her delay in filing her petition for review to the Board.
4 To the extent the appellant asserts that the administrative judge discouraged her from
filing a petition for review with the Board because of the lack of quorum, her claim
lacks specifics regarding what the administrative judge said or did to discourage her
filing. PFR File, Tab 2 at 4. Moreover, the initial decision clearly explained how to
file a petition for review and specifically stated that parties could continue to file
petitions for review even in the absence of a quorum. ID at 22. The appellant’s failure
to follow the instructions in the initial decision is insufficient to establish good cause
for her delay. Njoku v. Department of Homeland Security , 111 M.S.P.R. 262, ¶ 7
(2009) (stating that an appellant’s unfamiliarity with legal matters and Board
procedures and his failure to follow explicit filing instructions in the initial decision
does not constitute good cause for a filing delay).4
contributed to her lateness in filing.5 PFR File, Tab 2 at 4. She claims that she
started working on submitting the motion showing good cause and was subjected
to a storm 5 days later, which caused her to set aside all efforts to file with the
Board and instead focus on making her home livable again. Id. at 26.
Although we are sympathetic to the appellant’s claims of disability and
home damage, she provides no justification for the entirety of the filing delay,
either prior to or after the February 16, 2021 storm. In fact, her prosecution of
two other Board appeals during this period demonstrates that these adversities did
not materially impede her ability to timely file her petition for review.
In assessing the appellant’s excuses for her filing delay, we may take
official notice of the details of these other appeals. See Thomson v. Department
of Transportation , 92 M.S.P.R. 392, ¶ 6 (2002); 5 C.F.R. § 1201.64. On
September 25, 2020, just weeks after the issuance of the initial decision in this
case, the appellant filed an initial appeal contesting the Office of Personnel
Management’s denial of her disability retirement application. Ferrell v. Office of
Personnel Management , MSPB Docket No. DA-844E-20-0546-I-1, Initial Appeal
File, (0546 IAF), Tab 1 at 4. She filed eight additional pleadings in that appeal,
including five after the February 16, 2021 storm, before it was dismissed on
May 5, 2021.6 0546 IAF, Tabs 3, 6, 9, 16, 21-22, 25-26. Further, subsequent to
filing a whistleblowing complaint with the Office of Special Counsel on
September 30, 2020, on April 9, 2021, the appellant filed an Individual Right of
Action (IRA) appeal against the agency. Ferrell v. Department of Housing and
Urban Development , MSPB Docket No. DA-1221-21-0228-W-1, Initial Appeal
5 To the extent the appellant is asserting that health issues prevented her from timely
filing her petition for review, she was informed of what she needed to show to establish
good cause based on such a claim. PFR File, Tab 2 at 3. Among other things, the
appellant has not presented any medical evidence in this appeal to support her claim and
has not explained how her condition prevented her from filing.
6 The administrative judge in that matter dismissed the appeal for lack of jurisdiction
following the Office of Personnel Management’s rescission of its reconsideration
decision. Ferrell v. Office of Personnel Management , MSPB Docket No. DA-844E-20-
0546-I-1, Initial Decision (May 5, 2021). 5
File (0228 IAF), Tab 1 at 4-5, 8-14. By September 8, 2021, the date of her
petition for review in the present case, she had submitted an additional
20 pleadings in her IRA appeal. 0228 IAF, Tabs 6, 9, 11-12, 14, 22, 24-25, 27,
30-32, 34, 40, 46-48, 51-53. The volume and content of these pleadings, in which
the appellant displays an ability to advocate her position and respond to events,
demonstrate that her explanations for her inability to file a petition for review,
particularly after February 2021, do not establish good cause. Ziegler v. Merit
Systems Protection Board , 705 F. App’x 997, 999 (Fed. Cir. 2017)7 (noting a
petitioner who filed an untimely petition for review engaged in other litigation
during the delay period, thus demonstrating he was able to make legal filings).
Accordingly, we dismiss the petition for review as untimely filed without
good cause shown.8 This is the final decision of the Merit Systems Protection
Board regarding the timeliness of the petition for review. The initial decision
remains the final decision of the Board regarding the dismissal of the appeal for
lack of jurisdiction.
NOTICE OF APPEAL RIGHTS9
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
7 The Board may follow a nonprecedential decision of the United States 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 Although the appellant also submits arguments and documentary evidence related to
the merits of her appeal in her petition for review, PFR File, Tab 2 at 7-28, 34, 38-65,
they are not relevant to the issue of whether good cause exists for her delay.
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.6
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.10 The court of appeals must receive your
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Ferrell_MichelleDA-0752-20-0212-I-1_Final_Order.pdf | 2024-10-31 | MICHELLE A. FERRELL v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. DA-0752-20-0212-I-1, October 31, 2024 | DA-0752-20-0212-I-1 | NP |
387 | https://www.mspb.gov/decisions/nonprecedential/Lettsome_Barbara_K_AT-0752-18-0509-I-3_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARBARA K. LETTSOME,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
AT-0752-18-0509-I-3
DATE: October 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun C. Southworth , Esquire, Atlanta, Georgia, for the appellant.
Cleora S. Anderson , Smyrna, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal for medical inability to perform essential functions of her
position. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant did not establish her claim of disability discrimination
because she is not a qualified individual with a disability, and that she failed to
establish that her protected activity under the Americans with Disabilities Act
Amendments Act of 2008 (ADAAA) was the “but for” cause of her removal, we
AFFIRM the initial decision.
BACKGROUND
The appellant was employed as a Management Analyst, GS-09, in the
Mission Support Office of the Defense Contract Management Agency. Lettsome
v. Department of Defense , MSPB Docket No. AT-0752-18-0509-I-3, Appeal File
(I-3 AF), Tab 23 at 8. As a Management Analyst, the appellant was responsible
for various administrative functions, such as the Government Operated Vehicle
(GOV) program, supplies, laptops, mail, and visitor management. Hearing
Recording (HR) (testimony of the appellant’s first -line supervisor). Three of the
position’s critical elements included Laptop Management, Management of the
GOV Program, and Management of Office Supplies, which included physical
aspects such as bending, reaching, lifting, and standing for long periods of time.
I-3 AF, Tab 24 at 15-17.2
The appellant suffered from several medical conditions, to include bilateral
carpal tunnel syndrome, right elbow tendonitis, and cervical neck and lower
lumbar back pain, which significantly limited her ability to bend, reach, lift, stand
or sit for long periods, push, or pull. I-3 AF, Tab 23 at 69, Tab 24 at 9, 25. As a
result of her medical condition, the appellant requested and received several
modifications to her duties, which included removing the physical aspects of the
supply duties, such as inventory, unpacking and matching the items purchased
with the order receipts, stocking the orders, and maintaining the supply room; not
driving the GOVs; and being excused from laptop management duties because she
was unable to lift the laptops.2 I-3 AF, Tab 23 at 26, 29, 51, Tab 24 at 23; HR
(testimony of the appellant, testimony of the first-line supervisor). With these
modifications, the appellant was only ordering supplies, scheduling the GOVs and
entering mileage, and scheduling laptops, which represented only a small portion
of her position’s responsibilities. HR (testimony of the appellant’s first -line
supervisor).
On June 30, 2017, the agency removed the appellant from her position for
medical inability to perform essential duties of the job. I-3 AF, Tab 23 at 8;
Lettsome v. Department of Defense , MSPB Docket No. AT-0752-18-0509-I-1,
Initial Appeal File (IAF), Tab 1 at 94-99. After filing an equal employment
opportunity (EEO) complaint alleging disability discrimination, and waiting for
over 120 days, she appealed her removal to the Board, asserting, in part, that the
removal was due to disability discrimination and in retaliation for her EEO
complaint and requests for reasonable accommodation.3 IAF, Tab 5 at 4-8;
I-3 AF, Tab 23 at 6-7, Tab 24 at 26-27.
2 The appellant also received a pullout keyboard holder, an ergonomic chair, a sit-stand
desk, and speech recognition software as a reasonable accommodation request. I-3 AF,
Tab 23 at 33, 69; HR (testimony of the appellant).
3 We conducted a search to see if a decision had been issued in the appellant’s EEO
case, but we were unable to find any case that resembled the appellant’s claims.3
After holding a hearing, the administrative judge issued a decision
affirming the agency’s removal action and finding that the appellant failed to
establish that her removal was the result of retaliation for protected activity or the
result of disability discrimination. I-3 AF, Tab 29, Initial Decision (ID). The
appellant has filed a petition for review, arguing that the agency failed to
accommodate her and/or delayed her accommodations, that she could perform the
essential functions of her job, and that any functions she could not perform were
marginal and not essential. Petition for Review (PFR) File, Tab 1 at 5-11. The
agency has responded in opposition to the appellant’s petition for review. PFR
File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant cannot establish her disability discrimination claim because she is
not a qualified individual with a disability.
The appellant’s disability discrimination claim was made on the basis of
her disabled status and on the basis of the agency’s failure to reasonably
accommodate that disability. I-3 AF, Tab 19 at 5-6. On review, she has
reiterated her claim that the agency failed to reasonably accommodate her
disability and/or delayed her accommodations. PFR File, Tab 1 at 7-8. First, the
administrative judge determined that the appellant could not establish a failure to
accommodate claim because there was no reasonable accommodation that would
have allowed her to perform the essential functions of her position, and there was
no vacant position available within her medical restrictions. ID at 17. Then, the
administrative judge determined that the appellant failed to present preponderant
evidence showing that she was treated differently due to her disability. ID at 19.
Although we agree with the administrative judge’s conclusion that the appellant
failed to establish her claim of disability discrimination on either basis, we
deviate from her analysis to find that the appellant cannot establish her disability
discrimination claim because she is not a qualified individual with a disability
under the ADAAA. Id. 4
The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act. Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶ 35. The standards under the Americans with
Disabilities Act (ADA), as amended by the ADAAA, have been incorporated by
reference into the Rehabilitation Act, and the Board applies them to determine
whether there has been a Rehabilitation Act violation. Id.; see 29 U.S.C.
§ 791(f).
In particular, the ADAAA provides that it is illegal for an employer to
“discriminate against a qualified individual on the basis of disability.” 42 U.S.C.
§ 12112(a). A qualified individual with a disability is one who can “perform the
essential functions of the . . . position that such individual holds or desires,” with
or without reasonable accommodation. 42 U.S.C. § 12111(8). An employer is
required to provide reasonable accommodations to an otherwise qualified
individual with a disability. 42 U.S.C. § 12112(b)(5). Thus, both a claim of
disability discrimination on the basis of the individual’s status as disabled and a
claim based on an agency’s failure to reasonably accommodate that disability
require that the individual be “qualified.” Haas v. Department of Homeland
Security, 2022 MSPB 36, ¶ 28.
The appellant is not a qualified individual because she cannot perform the
essential functions of her job with or without reasonable accommodation. The
record establishes that she is medically unable to perform essential functions of
her position, such as laptop duties and supply duties. HR (testimony of the
appellant). Furthermore, there is no evidence that a reasonable accommodation
exists that would allow the appellant to perform these duties, as she is medically
restricted from lifting, bending, reaching, or long periods of walking or standing,
which are necessary for her job. I-3 AF, Tab 24 at 24-25, 64; HR (testimony of
the appellant). Additionally, the agency has demonstrated that there was no
vacant funded position available for which the appellant was medically qualified,5
and she has presented no evidence to contradict this finding. I-3 AF, Tab 23
at 83-106; HR (testimony of the appellant’s first-line supervisor).
On review the appellant claims that the agency should have granted her
request for a 4-month waiting period recommended by her doctor in a letter
drafted after the proposed removal notice. PFR File, Tab 1 at 6-7; I-3 AF, Tab 24
at 4-7, 63-64. We disagree because this request would not have allowed the
appellant to perform her essential job functions. Indeed, in that same letter, her
doctor stated that the accommodations may assist her in performing duties “not
related to heavy lifting, extensive bending, and reaching.” I-3 AF, Tab 24 at 64.
Thus, even if the 4 months had been granted, the appellant still would have been
unable to perform the physical aspects of her job, including supply duties and
laptop duties. In fact, the appellant remains restricted in her physical activities
and would be unable to perform these duties. HR (testimony of the appellant).
Because the appellant is not a qualified individual under the ADAAA, she cannot
establish her disability discrimination claims of failure to accommodate or
disparate treatment.4
The appellant failed to establish that her removal was in retaliation for EEO
activity.
The appellant has claimed that her removal was retaliation for filing an
EEO complaint that alleged discrimination and harassment involving her
disability and for engaging in the reasonable accommodation process. I-3 AF,
Tab 19 at 6, Tab 24 at 126-27. These activities are protected under the ADAAA,
4 In support of her disability discrimination claim, the appellant claimed that the
deciding official told her that she was faking her disability; however, the administrative
judge credited the testimony of the deciding official denying that she made such a
statement based upon her character and demeanor at the hearing. ID at 19. On review,
the appellant references witness testimony that allegedly supports her claim that the
deciding official thought she was faking her disability. PFR File, Tab 1 at 7. First, the
Board will defer to the credibility findings of the administrative judge and will not
grant a petition for review based on a mere disagreement with those findings. Crosby v.
U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997). Nevertheless, we agree with
administrative judge’s note that this fact alone would be insufficient to establish that
the appellant’s removal was motivated by her disability. ID at 19 n.20.6
not Title VII. Haas, 2022 MSPB 36, ¶ 32; Pridgen, 2022 MSPB 31, ¶ 44. The
Board has recognized that a more stringent standard applies in the context of
retaliation claims arising under the ADAAA, such that the appellant must prove
that her prior EEO activity was the “but for” cause of the retaliation. Haas,
2022 MSPB 36, ¶ 31, Pridgen, 2022 MSPB 31, ¶¶ 43-47. Furthermore, the
appellant has the burden of proving “but for” causation in the first instance; in
other words, in an ADAAA retaliation claim, the burden does not shift to the
agency. Pridgen, 2022 MSPB 31, ¶ 47.
The administrative judge found that the appellant failed to establish her
claim of retaliation because the evidence failed to establish that the agency
officials had any motive to retaliate against her. ID at 20. While we agree with
her conclusion, we clarify that the proper standard to apply in claims involving
protected activity under the ADAAA is a “but for” causation standard. However,
for the following reasons, the appellant cannot meet even the lesser motivating
factor standard, and thus, she does not meet the “but for” standard. The outcome
therefore remains the same.
It is undisputed that the appellant filed an EEO complaint in December
2016 on the basis of disability and named the deciding official and the proposing
official as responsible management officials. I-3 AF, Tab 24 at 126-27. It is also
undisputed that the appellant engaged in the reasonable accommodation process
beginning in or around June 2016. Id. at 24-25. Additionally, the proposing and
deciding official were aware of the appellant’s reasonable accommodation
requests and her EEO complaint. HR (testimony of the deciding official,
testimony of the appellant’s first-line supervisor). Thus, within 1 year of
engaging in the reasonable accommodation process, and 6 months of filing an
EEO complaint naming the proposing and deciding official, the appellant was
removed from her position. I-3 AF, Tab 23 at 8. However, absent the timing,
there are no other facts in the record that would support a finding of retaliation.
Each of the appellant’s reasonable accommodation requests were granted, albeit7
some items were delayed due to funding issues within the Federal Occupational
Health (FOH), a subagency of the Department of Health and Human Services.
HR (testimony of the first-line supervisor, testimony of the appellant). There is
no evidence in the record of any ambiguous statements or comments that would
suggest a retaliatory intent. The appellant presented no comparator evidence, nor
is there any in the record. As for the agency’s stated reason for the removal, it is
worthy of credence, as the record supports the finding that the appellant was
medically unable to perform essential job functions.
Therefore, the only indication that the appellant’s protected activity was
even a factor in the removal is the temporal proximity between the EEO
complaint and her removal. However, temporal proximity alone does not
establish that the protected activity was a motivating factor, let alone establish
that it was the “but for” cause of her removal. Accordingly, the appellant has not
established her affirmative defense of retaliation for protected activity.5
The appellant has presented no claims on review that would serve as a basis for
reversal.
On review, the appellant also claims that the duties that she is admittedly
unable to perform are not essential duties, but marginal duties. PFR File, Tab 1
at 8-11. We find that the administrative judge thoroughly analyzed the evidence
regarding the essential functions of the appellant’s position and came to reasoned,
logical conclusions. ID at 9-14. Accordingly, we discern no reason to challenge
the administrative judge’s findings regarding the agency’s charge. Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 106 (1997) (declining 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).
5 The timing also may have been influenced by FOH’s reports, which confirmed that the
appellant was unable to perform essential job duties and suggested removal for medical
inability. I-3 AF, Tab 24 at 13-14.8
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on10
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or11
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Lettsome_Barbara_K_AT-0752-18-0509-I-3_Final_Order.pdf | 2024-10-30 | BARBARA K. LETTSOME v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-0752-18-0509-I-3, October 30, 2024 | AT-0752-18-0509-I-3 | NP |
388 | https://www.mspb.gov/decisions/nonprecedential/Ellsberry_BryanAT-0714-20-0692-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRYAN ELLSBERRY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-20-0692-I-1
DATE: October 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kaye Johnson Persons , Biloxi, Mississippi, for the appellant.
Kelly Badeaux-Phillips and Linda C. Fleck , New Orleans, Louisiana,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has petitioned for review of the initial decision in this appeal,
which affirmed his removal from the agency. For the reasons set forth below, we
DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
¶2After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT,” dated May 5, 2023.2 The document
provides, among other things, for the withdrawal of the appeal.
¶3Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ).
¶4Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. Petition for Review File, Tab 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 these circumstances. In addition,
we find that the agreement is lawful on its face and freely entered into, and we
accept the settlement agreement into the record for enforcement purposes.
¶5This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
2 The settlement agreement was not submitted to the Board until September 18, 2024. 2
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a courtappointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Ellsberry_BryanAT-0714-20-0692-I-1_Final_Order.pdf | 2024-10-30 | BRYAN ELLSBERRY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-20-0692-I-1, October 30, 2024 | AT-0714-20-0692-I-1 | NP |
389 | https://www.mspb.gov/decisions/nonprecedential/McNeil_Robert_H_NY-0714-20-0040-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT H. MCNEIL JR.,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-0714-20-0040-I-1
DATE: October 30, 2024
THIS ORDER IS NONPRECEDENTIAL1
Ena Thompson , Jamaica, New York, for the appellant.
Jane Yoon , Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for failure to prosecute . For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
REMAND the case to the New York Field Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
¶2The appellant was employed as an Air Conditioning Equipment Operator
with the agency until he was removed from his position, effective December 11,
2019, 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, 869-73 (codified as amended at 38 U.S.C.
§ 714), based on a charge of conduct unbecoming an employee and a charge of
providing a false statement during an investigation. Initial Appeal File (IAF),
Tab 9 at 18-21, 50-53. He timely filed the instant Board appeal challenging his
removal and requested a hearing on his appeal.2 IAF, Tab 1. During the
processing of the appeal, the administrative judge discovered that the appellant
had an ongoing criminal case related to the matters at issue in his Board appeal,
so she ordered the appellant to provide information concerning the status of his
criminal case, noting that the Board generally does not proceed with the
processing of an appeal when there is a pending related criminal matter and that
the appeal might need to be to be dismissed without prejudice to refiling. IAF,
Tabs 10, 13.
2 The removal decision is dated December 5, 2019, with an effective date of
December 11, 2019. IAF, Tab 9 at 18. The appellant electronically filed his Board
appeal on December 5, 2019, prior to the December 11, 2019 effective date, and
therefore, his Board appeal was prematurely filed by 6 days. IAF, Tab 1. Nevertheless,
“[t]he Board’s practice is to adjudicate an appeal that was premature when filed but
becomes timely while pending before the Board.” Wooten v. Department of Veterans
Affairs, 96 M.S.P.R. 671, ¶ 9 (2004). Therefore, any error by the administrative judge
in failing to dismiss the appeal was harmless because the appeal became ripe for
adjudication upon the effective date of the removal, 6 days after the appeal was filed.
See Gutierrez v. Department of the Treasury , 99 M.S.P.R. 141, ¶ 3 n.1 (2005)
(concluding that a premature probationary termination appeal became timely upon the
effective date of the termination); Groshans v. Department of the Navy , 67 M.S.P.R.
629, 632-33 n.2 (1995) (determining that a premature removal appeal became ripe for
adjudication upon the effective date of the removal).2
¶3After the appellant provided evidence that his criminal appeal was ongoing,
on February 10, 2020, the administrative judge issued a notice stating that she
intended to suspend the appeal for 30 days to allow for resolution of the ongoing
criminal matter. IAF, Tabs 17-18. Having received no objection to the proposed
suspension, the administrative judge suspended case processing for 30 days,
effective February 18, 2020. IAF, Tab 19. On April 2, 2020, the administrative
judge issued an order restoring the case to the active calendar and instructing the
appellant to provide an update regarding the status of his criminal case on or
before April 9, 2020. IAF, Tab 20. After receiving no reply, the administrative
judge issued a second order on April 21, 2020, instructing the appellant to reply
on or before April 24, 2020, and a third order on April 24, 2020, providing him a
final opportunity to reply on or before April 29, 2020. IAF, Tabs 21-22. Each
order noted that a failure to comply with Board orders could result in dismissal of
the appeal for failure to prosecute. Id.; see 5 C.F.R. § 1201.43(b). Citing the
appellant’s “repeated failure to respond to multiple orders,” on May 1, 2020, the
administrative judge dismissed the appeal with prejudice as a sanction for failure
to prosecute the appeal. IAF, Tab 23, Initial Decision (ID).
¶4The appellant has timely filed a petition for review of the initial decision
dismissing his appeal for failure to prosecute. Petition for Review (PFR) File,
Tab 1 at 4. The agency has not submitted a response to the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5On review, the appellant asserts that he timely responded to the
administrative judge by submitting a letter from his attorney concerning the status
of his criminal case by facsimile on April 27, 2020, and so his appeal should not
have been dismissed for failure to prosecute. Id. at 4. The appellant avers that he
spoke with a paralegal specialist on April 27, 2020, who informed him that she
had received the facsimile and was placing it on the administrative judge’s desk.
Id. With his petition for review, the appellant attaches the letter from his attorney3
in the criminal case, dated March 19, 2020, confirming that on March 17, 2020,
the two pending criminal cases against the appellant were dismissed and that a
disposition of the cases should be registered with the relevant authorities within a
few weeks. Id. at 8.
The sanction of dismissal for failure to prosecute was not warranted in this case.
¶6As the administrative judge correctly observed, the sanction of dismissal
with prejudice may be imposed if a party fails to prosecute or defend an appeal.
Williams v. U.S. Postal Service , 116 M.S.P.R. 377, ¶ 7 (2011); 5 C.F.R.
§ 1201.43(b). However, such a severe sanction should be imposed only if a party
has failed to exercise basic due diligence in complying with the Board’s orders or
has exhibited negligence or bad faith in his efforts to comply. Id., ¶¶ 7-8; see
Toombs v. Department of the Army , 69 M.S.P.R. 78, 81 (1995) (observing that
dismissal for failure to prosecute is the most severe sanction available). The
Board will not reverse an administrative judge’s determination regarding
sanctions absent an abuse of discretion. Williams, 116 M.S.P.R. 377, ¶ 7.
¶7As previously noted, in his petition for review, submitted under penalty of
perjury, the appellant asserts that he filed the letter confirming that his criminal
cases had been closed by a facsimile sent to the administrative judge on April 27,
2020—two days before the April 29, 2020 deadline identified by the
administrative judge in her final order. PFR File, Tab 1 at 3-5, 8; IAF, Tab 22
at 2. The attached letter, which was signed by the appellant’s attorney in his
criminal case, clearly states that the criminal matters were closed as of March 17,
2020, which is consistent with the previous letter faxed to the administrative
judge’s attention on February 7, 2020, noting that the criminal case had been
postponed to March 17, 2020, and that the case could be resolved on that date.
PFR File, Tab 1 at 8; IAF, Tab 17 at 2. Additionally, the appellant specifically
identifies by name the paralegal specialist who he alleges informed him that she
was placing the facsimile on the administrative judge’s desk to be included in the4
record, and he unequivocally expresses his desire to continue pursuing his Board
appeal. PFR File, Tab 1 at 5-6.
¶8We credit the appellant’s assertion submitted under penalty of perjury that
he timely faxed the letter confirming that his criminal case had been dismissed on
April 27, 2020. Id. at 4-5, 8. Based on the record before us, we cannot conclude
that the appellant failed to exercise basic due diligence in complying with the
Board’s orders, and so we conclude that the extreme sanction of dismissal for
failure to prosecute did not serve the ends of justice in this case. See Wiggins v.
Department of the Air Force , 113 M.S.P.R. 443, ¶¶ 11, 14 (2010). Accordingly,
we vacate the initial decision and remand the appeal to the field office for further
adjudication.
On remand, the administrative judge should consider recent precedent from the
U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and the Board in
developing the record and issuing a new initial decision.
¶9After the initial decision in this case was issued, the Federal Circuit issued
its decision in Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290 (Fed.
Cir. 2021), in which it determined that the agency erred by applying a substantial
evidence burden of proof to its internal review of a disciplinary action taken
under 38 U.S.C. § 714.3 The court in Rodriguez found that substantial evidence is
the standard of review to be applied by the Board, not the agency, and that an
agency’s deciding official must determine whether “the performance or
misconduct . . . warrants” the action at issue, applying a preponderance of the
evidence burden of proof. Id. at 1296-1301 (quoting 38 U.S.C. § 714(a)(1)).
¶10The Board subsequently issued its decision in Semenov v. Department of
Veterans Affairs , 2023 MSPB 16, ¶¶ 21-24, in which it found that it was
3 The VA Accountability Act was signed into law on June 23, 2017, prior to all of the
events at issue in this appeal, and so retroactivity considerations are not implicated in
this appeal. See Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1380-82
(Fed. Cir. 2020) (concluding that applying 38 U.S.C. § 714 to conduct that occurred
prior to its enactment would have an impermissible retroactive effect and so the
Department of Veterans Affairs may not use the VA Accountability Act to discipline
employees for matters that occurred prior to the Act’s effective date).5
appropriate to apply the harmful error standard from 5 U.S.C. § 7701(c)(2) to an
agency’s improper application of the substantial evidence standard to its review
of proposed actions taken under 38 U.S.C. § 714.
¶11In Connor v. Department of Veterans Affairs , 8 F.4th 1319, 1325 -27 (Fed.
Cir. 2021), the Federal Circuit determined that the agency and the Board must
consider and apply the non-exhaustive factors set forth in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981), in reviewing an agency’s penalty
selection under 38 U.S.C. § 714. See Semenov, 2023 MSPB 16, ¶¶ 44-50 (stating
that, consistent with the Federal Circuit’s decision in Connor, 8 F.4th at 1325-26,
the agency and the Board must apply the Douglas factors in reviewing the penalty
in an action taken under 38 U.S.C. § 714). The court held that, although
section 714 precludes the Board from mitigating the agency’s chosen penalty,
“[i]t does not alter the penalty review with respect to the Douglas factors” and
that, although the Board cannot mitigate the penalty, “if the Board determines
that the [agency] failed to consider the Douglas factors or that the chosen penalty
is unreasonable, the Board must remand to the [agency] for a redetermination of
the penalty.” Connor, 8 F.4th at 1326-27 (citing Brenner v. Department of
Veterans Affairs , 990 F.3d 1313, 1325 (Fed. Cir. 2021) (explaining that, “if the
[Board] concludes that the [agency’s] removal decision is unsupported by
substantial evidence, the [Board] should remand to the [agency] for further
proceedings”)).
¶12The removal decision letter appears to indicate that the deciding official
applied a substantial evidence standard in sustaining the removal action. IAF,
Tab 9 at 18. Additionally, the decision letter does not identify whether the
deciding official considered the relevant Douglas factors in deciding to remove
the appellant. Id. Because the administrative judge dismissed the appeal for
failure to prosecute without holding the appellant’s requested hearing, the parties
were not afforded the opportunity to develop the record on these issues, and so6
the administrative judge should permit the parties to supplement the record
regarding these issues on remand.
ORDER
¶13For the reasons discussed above, we remand this case to the New York Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | McNeil_Robert_H_NY-0714-20-0040-I-1_Remand_Order.pdf | 2024-10-30 | ROBERT H. MCNEIL JR. v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-0714-20-0040-I-1, October 30, 2024 | NY-0714-20-0040-I-1 | NP |
390 | https://www.mspb.gov/decisions/nonprecedential/Vinson_Roberta_L_SF-0752-20-0307-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERTA L. VINSON,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-20-0307-I-1
DATE: October 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Roberta L. Vinson , San Diego, California, pro se.
Timothy J. Kuhn , Camp Pendleton, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary demotion appeal for lack of jurisdiction. On petition
for review, the appellant challenges a number of the administrative judge’s
factual findings; argues that he erroneously concluded that she failed to
demonstrate that her working conditions were so intolerable as to compel a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
reasonable person to accept the demotion and that her acceptance of the demotion
was not the product of duress, coercion, and misleading statements by agency
officials; and reargues that the agency engaged in discrimination and retaliation
against her in connection with her demotion. She also provides a number of
emails and documents for the first time with her petition for review. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review.
For the reasons set forth in the initial decision, we agree with the
administrative judge’s finding that the appellant failed to meet her burden of
making a nonfrivolous allegation2 of Board jurisdiction over her involuntary
demotion appeal. Initial Appeal File, Tab 20, Initial Decision (ID) at 16-17; see
Carey v. Department of Health & Human Services , 112 M.S.P.R. 106, ¶ 5 (2009)
(explaining that an appellant generally is entitled to a jurisdictional hearing if she
raises a nonfrivolous allegation of Board jurisdiction over the appeal); see also
Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶¶ 7-8, 11 (2013) (observing that
an employee may establish Board jurisdiction over a constructive adverse action
such as an involuntary demotion by proving, among other things, that she lacked
2 A nonfrivolous allegation of Board jurisdiction is an allegation of fact that, if proven,
could establish that the Board has jurisdiction over the matter at issue. Ferdon v. U.S.
Postal Service, 60 M.S.P.R. 325, 329 (1994); 5 C.F.R. § 1201.4(s).2
a meaningful choice in the matter and it was the agency’s wrongful actions that
deprived her of that choice). We discern no basis to disturb the administrative
judge’s finding that the appellant failed to make a nonfrivolous allegation that her
working conditions were so intolerable as to render her acceptance of the
demotion involuntary or that agency personnel subjected her to duress or coercion
or misinformed her in any material way regarding the demotion. ID at 9-17.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b).
3 We have reviewed the emails and other exhibits the appellant provided with her
petition for review and conclude that none of the exhibits are new or material. Petition
for Review (PFR) File, Tab 1 at 26-78; Tabs 2-4; see Okello v. Office of Personnel
Management, 112 M.S.P.R. 563, ¶ 10 (2009) (noting that under 5 C.F.R. § 1201.115(d),
the Board will not consider evidence submitted for the first time with a petition for
review absent a showing that it is both new and material); Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980) . All of the dated documents predate the close of
record in this case, and the appellant has not explained why she did not provide them
before the record closed below, so they are not “new.” PFR File, Tab 1 at 26-32, 35-62,
78; Tab 2 at 6-11; Tab 3 at 5-8; Tab 4 at 4-5; see Avansino, 3 M.S.P.R. at 214. The
remaining exhibits include an undated and unidentified excerpt from what appears to be
an agency’s reasonable accommodation process guidance, a copy of a Handbook from
the U.S. Forest Service, a screenshot showing the address of a Department of the Navy
facility in Coronado, California, and a photograph of a roll of toilet paper. PFR File,
Tab 1 at 33-34; Tab 2 at 12; Tab 3 at 4. The appellant has not identified the source for
the undated excerpt or explained how it is relevant to voluntariness of her acceptance of
the demotion, nor has she explained how the location of the agency’s Navy facility in
Coronado or the procedures outlined in the U.S. Forest Service Handbook have any
bearing on the voluntariness of her decision to accept the demotion reassignment. The
photograph of the toilet paper roll appears to be related to the appellant’s claim that the
women’s restroom at her former employing agency was poorly maintained. PFR File,
Tab 1 at 16-18; Tab 3 at 4. The administrative judge properly considered this argument
in the context of the appellant’s involuntary demotion claim but determined that her
working conditions were not so intolerable as to compel a reasonable person to feel that
they had no alternative but to accept the reassignment, with which we ultimately agree.
See ID at 14, 16-17. Accordingly, the appellant has not explained how any of the
provided exhibits are material to the jurisdictional matter at issue in this appeal, and we
have not considered them. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349
(1980).3
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Vinson_Roberta_L_SF-0752-20-0307-I-1_Final_Order.pdf | 2024-10-28 | ROBERTA L. VINSON v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-20-0307-I-1, October 28, 2024 | SF-0752-20-0307-I-1 | NP |
391 | https://www.mspb.gov/decisions/nonprecedential/Drumm_Lori_L_CH-1221-18-0158-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LORI LEE DRUMM,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-18-0158-W-1
DATE: October 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephen Goldenzweig , Esquire, Houston, Texas, for the appellant.
Chadwick C. Duran , Esquire, and Danielle Kalivoda , Esquire,
Indianapolis, Indiana, for the agency.
Nicholas E. Kennedy , Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The agency has filed a petition for review and the appellant has filed a
cross petition for review of the initial decision, which granted in part and denied
in part the appellant’s request for corrective action in connection with her
individual right of action (IRA) appeal. For the reasons discussed below, we
GRANT the agency’s petition for review and reverse the administrative judge’s
granting of corrective action regarding the agency’s suspension of the appellant’s
privileges. We DENY the appellant’s cross petition for review. The appellant’s
request for corrective action is denied as to all matters.
BACKGROUND
The essential facts in this appeal are set forth below and are largely drawn
from the administrative judge’s thorough initial decision. The parties do not
challenge these essential facts.
During the 2-year period relevant to this appeal, the appellant encumbered
the position of Associate Chief of Staff at the Veterans Affairs Northern Indiana
Health Care System (VANIHCS). Her first-level supervisor was the VANIHCS
Chief of Staff (COS), and her second-level supervisor was the VANIHCS
Director. In her position, the appellant served as the first-line supervisor of
primary care physicians, many of whom were in remote Indiana sites. As a
collateral duty, she also served as Opioid Safety Initiative (OSI) Co-Champion.
Shortly after the appellant was appointed to her position, she began to be
concerned about the number of patients at the facility who were being prescribed
opioids on a long-term basis. Because of the dangers inherent in that situation,
the appellant favored gradually reducing opioid dosage levels with a view toward
patients becoming opioid free. As a result, the primary care providers she
supervised increased the “tapering” and suspension of patient opioid prescriptions
by employing other methods of pain control.2
The focus at the facility on reducing patient opioid levels attracted
congressional scrutiny and media attention. Patients who were dissatisfied let
their opinions be known through surveys that reflected poorly on VANIHCS and
complaints to patient advocates, members of Congress, and high-level agency
management. The appellant raised to VANIHCS her concerns that executive
leadership appeared to care more about patient satisfaction and positive feedback
than the clinical judgment of the treating providers and that non-providers were
improperly influencing health care provider decisions concerning opioid
prescriptions. Initial Appeal File (IAF), Tab 8 at 47-51.
Subsequently, two members of the House Committee on Veterans’ Affairs
wrote to the Veterans’ Affairs Secretary concerning a number of matters,
including an allegation that the appellant was tapering veterans from their opioid
medication without contacting or examining them, but rather based only on chart
review, and they requested that the agency’s Office of Medical Inspector (OMI)
conduct an investigation, which it did. IAF, Tab 12 at 436-37. The investigation
found that six veterans experienced changes in their medication without any
communication from the appellant, in violation of Indiana law, adopted as
VANIHCS medical center policy, which requires face-to-face meetings every
2 months for patients whose opioid regimen is changed. Id. at 278-305. OMI
recommended that VANIHCS determine the appropriate educational,
administrative, or disciplinary accountability for the appellant’s noncompliance
with state law and medical center policy. Id. at 285. The House Veterans Affairs
Committee wrote to the Secretary of Department of Veterans Affairs inquiring
how VANIHCS had addressed the findings regarding the appellant, specifically,
what administrative actions it took against her, whether her practice privileges
had been or would be suspended, and whether she would be reported to the state
licensing authority. Id. at 431.
On May 26, 2017, based on the recommendation of the COS, the
VANIHCS Director suspended the appellant’s privileges pending a3
comprehensive review of allegations that she failed to “implement opioid safety
initiatives with Veterans in a safe and ethical manner.” IAF, Tab 12 at 348. That
investigation included a review of the records of all the appellant’s patients
during the period in question to determine whether any veterans had been harmed
due to the appellant’s actions, but no such harm was found. Hearing Transcript
(HT) at 239, 242 (testimony of COS). Thereafter, the Professional Standards
Board (PSB) unanimously recommended that the appellant’s privileges be
reinstated, and they were, effective June 23, 2017. Id. at 329, 346.
The appellant filed a whistleblower reprisal complaint with the Office of
Special Counsel (OSC). IAF, Tab 1 at 27-40. She listed a number of protected
disclosures she had made to the COS and/or the VANIHCS Director regarding the
opioid prescription situation at the facility that, she alleged, reflected a
significant threat to public health and safety and a violation of law. Id. She also
raised a number of personnel actions she claimed the agency had taken against
her based on the disclosures, including the suspension of her privileges and her
concurrent removal as OSI Co-Champion. Id. The appellant subsequently
amended her complaint to include a proposed reprimand she had received for
failure to follow medical center policy related to opioid prescriptions that was
subsequently reduced to a letter of counseling. Id. at 23-24, 41-72; IAF, Tab 12
at 18. On September 14, 2017, the appellant notified the COS that she intended
to retire effective October 6, 2017, and she did so. IAF, Tab 12 at 15, 17. She
also notified OSC of her retirement and alleged that it was involuntary. IAF,
Tab 1 at 73.
After OSC issued a closure letter, IAF, Tab 1 at 74, the appellant filed an
appeal with the Board that included the same alleged protected disclosures and
personnel actions described in her OSC complaint as amended. IAF, Tab 1. She
requested a hearing. Id. at 2.
After holding the appellant’s requested hearing, the administrative judge
issued an initial decision granting in part and denying in part the appellant’s4
request for corrective action. IAF, Tab 41, Initial Decision (ID) at 2, 55. After
finding that the appellant established that she had exhausted her administrative
remedies, ID at 12-14, the administrative judge found that the appellant made
nine specific protected disclosures between November 2015 and March 2017 to
VANIHCS leadership (the COS and the Director) relating to opioid prescription
issues, including opioid over-prescription, patient diversion of opioids, improper
provider training on urine drug screens, and improper influence on medical
decisions or opioid safety plans, and that she reasonably believed that her
disclosures evidenced potential violations of law and a substantial and specific
danger to public health and safety. ID at 14-26. The administrative judge further
found that the appellant established that her disclosures were a contributing factor
in three personnel actions, the agency’s summary suspension of her health care
privileges, her concurrent removal as OSI Facility Co-Champion, and the
proposed reprimand, noting that the first two of these actions constituted a
significant change to the appellant’s duties and responsibilities. ID at 26-28. The
administrative judge further found that the appellant failed to show that her
retirement was involuntary and that therefore it did not constitute a personnel
action under 5 U.S.C. § 2302(a)(2)(A).2 ID at 36-40. The administrative judge
then determined that the agency failed to show by clear and convincing evidence
that it would have suspended the appellant’s privileges absent her protected
disclosures, ID at 42-49, but that it did make the required showing regarding her
removal as OSI Facility Co-Champion, ID at 49-50, and the proposed reprimand,
ID at 50-54. Accordingly, the administrative judge found that the appellant was
entitled to corrective action only regarding the suspension of her medical
privileges, and he therefore granted relief in part and denied it in part. ID at 55.
2 In addition, the administrative judge found that the appellant failed to meet her burden
to show that her protected disclosures were a contributing factor to another alleged
personnel action, ID at 28-29, and that she also failed to show that she was subjected to
two other alleged personnel actions. ID at 30-36. The appellant has not challenged any
of these findings on review, and therefore, we do not address them further.5
The agency has filed a petition for review, Petition for Review (PFR) File,
Tab 1. The appellant has responded and has also filed a cross petition for review.
PFR File, Tab 3. The agency has responded to the cross petition for review. PFR
File, Tab 4.
ANALYSIS
The administrative judge erred in finding that the agency failed to present clear
and convincing evidence that it would have suspended the appellant’s privileges
absent her protected disclosures.
On review, the agency argues only that the administrative judge erred in
finding that it did not present clear and convincing evidence that it would have
suspended the appellant’s clinical privileges absent her protected disclosures.
PFR File, Tab 1 at 8-17. For the reasons discussed below, we agree with the
agency.
Clear and convincing evidence is a high burden of proof. Whitmore v.
Department of Labor , 680 F.3d 1353, 1367 (Fed. Cir. (2012). Relevant factors
deemed appropriate for consideration of whether the agency has met its burden
are: (1) the strength of the agency’s evidence in support of its action; (2) the
existence and strength of any motive to retaliate on the part of agency officials
who were involved in the decision; and (3) any evidence that the agency takes
similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. Carr v. Social Security Administration , 185 F.3d
1318, 1323 (Fed. Cir. 1999). Evidence only supports this high burden when it
does so in the aggregate considering all of the pertinent evidence in the record,
including that which detracts from the conclusion. Whitmore, 680 F.3d at 1368.
In finding that the agency failed to meet its burden regarding the
suspension of the appellant’s clinical privileges, the administrative judge first
considered Carr factor (2), the motive to retaliate. Because the administrative
judge started his analysis with the second Carr factor, we will do so as well. We
will then discuss the first Carr factor, and finally the third factor.6
The administrative judge found that the second Carr factor weighs heavily
in the appellant’s favor.3 ID at 41-42. The administrative judge considered that
the opioid crisis and attendant problems were of concern to VANIHCS
management, that public scrutiny had cast the facility in an unfavorable light, and
that both the COS and the Director were sensitive to public criticism of the
facility. ID at 42.
The agency contends that the administrative judge made inconsistent and
erroneous conclusions of material fact and failed to address certain evidence
regarding Carr factor (2). For example, the agency argues that the administrative
judge erred in finding that the Director had a motive to retaliate against the
appellant based on her disclosure that he influenced medical decisions relating to
opioids. PFR File, Tab 1 at 9. The administrative judge found that it was more
likely than not that the Director influenced clinical decision-making through the
COS. ID at 24. In support of his finding, the administrative judge considered the
testimony of Dr. C.G., HT at 148-50, and Dr. D.W., HT at 183-86, two primary
care physicians whom the appellant supervised. ID at 20. Although the agency
argues that the appellant was not correct in her allegations of influence, PFR File,
Tab 1 at 9, whether she was or not is not the issue. The administrative judge
found, and the agency does not challenge, that the appellant engaged in protected
activity when she made disclosures to VANIHCS leadership, including that there
was improper influence on medical decisions related to opioid prescription issues,
and that she reasonably believed that such influence evidenced potential
violations of law and a substantial and specific danger to public health and safety.
ID at 26. However, to the extent that this disclosure evidences a motive to
retaliate, it does not, in and of itself, support a finding that Carr factor (2) weighs
heavily in the appellant’s favor as the administrative judge found.
3 The administrative judge made this finding regarding a motive to retaliate concerning
all three of the personnel actions at issue in this appeal. ID at 41-42.7
The agency further argues on review that the administrative judge failed to
consider that both the COS and the Director testified that they generally agreed
with the appellant regarding the need for reducing opioid use among the facility’s
patients, and that such evidence does not support a finding that they had a strong
motive to retaliate against her. PFR File, Tab 1 at 10; HT at 199-200, 270-71
(testimony of the COS), 280, 306-07 (testimony of the Director). 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). On the other hand, an initial decision must
identify all material issues of fact and summarize the evidence. Spithaler v.
Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980). Here, the omitted
evidence appears to be significant and is relevant to the degree of retaliatory
motive, for if the COS and Director shared the appellant’s concern about opioid
use among veterans, that would undercut a finding of a motive to retaliate and
would make the analysis of the second Carr factor more complicated than the
administrative judge found. The analysis is further complicated by the Director’s
testimony that he was afraid the appellant had created a culture where veterans
were seen as drug seekers, that he was angered by such labels, and that his
guidance was to defer to the veteran. HT at 284 (testimony of the Director). The
Director’s more specific testimony that he was at odds with the appellant’s
position on how to achieve the reduction of opioids could support a finding that
he had a strong motivate to retaliate against her. IAF, Tab 24 at 83 (sworn
testimony of the Director before the Administrative Inquiry Board).4 However,
after initially finding that the COS and the Director clearly had a motive to
retaliate against the appellant, given the undisputed weight of patient complaints,
4 Just prior to the suspension of the appellant’s privileges and her removal as OSI Co-
Champion, an Administrative Inquiry Board was tasked with hearing testimony from
witnesses related to issues at the facility, and the appellant, among others, was
interviewed. IAF, Tab 12 at 168. 8
media coverage,5 and congressional scrutiny of the opioid issue at VANIHCS, ID
at 49, the administrative judge subsequently found, while discussing the proposed
reprimand of the appellant, that such influence or scrutiny was unrelated to the
appellant’s protected disclosures. ID at 54. We fail to see, nor did the
administrative judge explain, how the outside influence and scrutiny could have
been unrelated to the protected disclosures in analyzing motive with respect to the
proposed reprimand yet related to the protected disclosures in assessing whether
there was motive when suspending the appellant’s privileges. Both personnel
actions were based on the same conduct—the appellant’s failure to comply with
medical center policy and state law in adjusting the opioid regimens of a number
of veterans.
In sum, the administrative judge’s inconsistent findings and failure to
mention significant evidence call into question his findings regarding Carr
factor (2). We have carefully considered the evidence regarding the motive to
retaliate, and, while we agree with the administrative judge that there was a
motive to retaliate, we do not find the motive as strong as the administrative
judge found.
The agency also challenges on review the administrative judge’s finding
that its support for the suspension of the appellant’s privileges was not strong. In
examining Carr factor (1), the Board looks at the evidence the agency had before
it when it took the alleged retaliatory action. Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1372 (Fed. Cir. 2001). The administrative judge relied
considerably on the testimony of Dr. D., who was on the PSB at the time the
appellant’s privileges were suspended. ID at 45-46. The administrative judge
found Dr. D. very credible in his testimony that he disagreed with the suspension
of the appellant’s privileges because he did not believe that, based on the
5 A local television station in Indianapolis aired a story on the VANIHCS concerning
patient dissatisfaction with changes being made to their opioid prescriptions without
their knowledge. The story identified the appellant as the responsible physician. IAF,
Tab 12 at 355.9
appellant’s actions, there was a clear and imminent danger to patient care, as he
understood the Medical Center Bylaws to require. HT at 160-61 (testimony of
Dr. D.). In fact, the Bylaws require only the “potential of imminent harm to the
health and well-being” of patients, IAF, Tab 24 at 238, and the stated reason for
the suspension of the appellant’s privileges was that her actions “potentially
constitute[d] an “imminent threat to patient welfare.”. IAF, Tab 12 at 348.
Moreover, Dr. D. conceded that he was not privy to the OMI investigation that
formed the basis for the COS’s action. HT at 166 (testimony of Dr. D.). That
investigation substantiated that the appellant was inappropriately tapering
veterans from their opioid pain medication without close clinical supervision or
clinical assessment and in violation of Indiana law, adopted as medical center
policy, IAF Tab 12 at 282, and that her actions posed a risk to public health and
safety. Id. at 286. The COS testified that he proposed suspending the appellant’s
privileges out of concern for patient safety, given that many patients on opioids
also have mental health issues, and that he did not want to risk any incidents until
he could confirm that no other patients had had their prescriptions reduced in a
manner that did not comply with state law, adopted as medical center policy. HT
at 237-38 (testimony of COS). The COS also testified that he believed that
further review was necessary to determine whether there had been any ill health
effects to patients from the appellant’s actions. Id. at 239. Under these
circumstances, we find that the administrative judge erred in concluding that the
agency’s evidence in support of suspending the appellant’s privileges was not
strong. In fact, based on the OMI’s report, which, as noted, recommended
appropriate educational, administrative, or disciplinary accountability, IAF,
Tab 12 at 278, as well as the other evidence, we believe that the agency had a
very strong basis for suspending the appellant’s privileges.
The agency does not challenge on review the administrative judge’s finding
as to Carr factor (3)—that the agency did not present any evidence that the
agency takes similar actions against similarly situated employees who are not10
whistleblowers. ID at 49. It is the agency that bears the burden of proving that it
would have taken the same action in the absence of his protected activity. See
Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 14 (2015). While the
agency does not have an affirmative burden to produce evidence concerning each
and every Carr factor, our reviewing court has held that “the absence of any
evidence relating to Carr factor (3) 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. Moreover, because it is the agency’s burden of
proof, when the agency fails to introduce relevant comparator evidence, the third
Carr factor cannot weigh in favor of the agency. Smith v. General Services
Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental
Protection Agency , 908 F.3d 1291, 1299 (Fed. Cir. 2018).
Here, however, the agency did present some slight evidence in the form of
the COS’s testimony that he has recommended the suspension of privileges of
other doctors, including some who he does not believe “could be” whistleblowers.
HT at 271 (testimony of COS). Because this evidence is not strong, however, we
find that the third Carr factor cuts slightly against the agency.
The Board does not view the Carr factors as discrete elements, each of
which the agency must prove by clear and convincing evidence; rather, the Board
will weigh the factors together to determine whether the evidence is clear and
convincing as a whole. Mithen v. Department of Veterans Affairs , 122 M.S.P.R.
489, ¶ 36 (2015), aff’d, 652 F. App’x 971 (Fed. Cir. 2016). Upon review of the
record, we are left with the firm belief that the agency would have suspended the
appellant’s privileges in the absence of her protected disclosures, given the
strength of the evidence in support of the agency’s action balanced against the
evidence of the motive to retaliate against her and the slight evidence favoring the
appellant under Carr factor (3). We find, therefore, that the appellant is not
entitled to corrective action regarding the suspension of her privileges.11
The appellant failed to show that her retirement was involuntary, and thus, it did
not constitute a personnel action under the whistleblower statutes.
In her cross petition for review, the appellant argues that the administrative
judge erred in finding that she did not establish that her retirement was
involuntary. PFR File, Tab 3 at 23-24. Specifically, the appellant contends that,
contrary to the administrative judge’s finding, she lacked a meaningful choice
because she had to choose between “acceding to illegal and medically dangerous
opioid actions by VANIHCS and resigning (sic).” Id. at 24.
As the administrative judge correctly found, an employee-initiated action
such as a retirement is presumed to be voluntary and thus outside the Board’s
jurisdiction. See Conforto v. Merit Systems Protection Board , 713 F.3d 1111,
1121 (Fed. Cir. 2013), abrogated on other grounds by Perry v. Merit Systems
Protection Board , 137 S. Ct. 1975, 1979 (2017); Searcy v. Department of the
Commerce, 114 M.S.P.R. 281 ¶ 12 (2010); 5 C.F.R. § 752.401(b)(9). Such
actions may be involuntary, however, and tantamount to an adverse action if they
are obtained by coercion, misinformation, or deception. Shoaf v. Department of
Agriculture, 260 F.3d 1336, 1341 (Fed. Cir. 2001); Searcy, 114 M.S.P.R. 281,
¶ 12. An appellant may establish involuntariness by showing that he lacked a
meaningful choice because of the agency’s improper actions. Bean v. U.S. Postal
Service, 120 M.S.P.R. 397, ¶ 11 (2013).
In considering this claim, the administrative judge thoroughly reviewed the
documentary and testimonial evidence in light of the above and other precedential
decisions of the Board and our reviewing court. ID at 36-40. Although he found
the appellant credible, ID at 38-39, he ultimately concluded that she failed to
meet the high legal burden necessary to show that the circumstances were so
intolerable that a reasonable person in her position would have been compelled to
retire. Garcia v. Department of Homeland Security , 437 F.3d 1322, 1329 (Fed.
Cir. 2006) (finding that an employee must satisfy a demanding legal standard in
order to establish that a retirement is involuntary); Heining v. General Services12
Administration, 68 M.S.P.R. 513, 519-20 (1995) (finding that the totality of the
circumstances must be gauged by an objective standard rather than by the
employee’s purely subjective evaluation). Because the administrative judge
found that the appellant failed to show that her retirement was involuntary, he
found that she did not establish that the action was a personnel action for IRA
purposes. See Comito v. Department of the Army , 90 M.S.P.R. 58, ¶ 13 (2001)
(finding that a separation pursuant to a voluntary resignation is not a personnel
action under 5 U.S.C. § 2302(a)(2)(A) within the Board’s IRA jurisdiction); ID
at 40.
The appellant’s mere disagreement with the administrative judge’s findings
regarding the voluntariness of her retirement does not explain why those findings
are incorrect or otherwise establish error. Yang v. U.S. Postal Service ,
115 M.S.P.R. 112, ¶ 12 (2010) (finding that arguments that constitute mere
disagreement with the initial decision do not provide a basis to grant the petition
for review); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (finding that there is no reason to disturb the
administrative judge’s conclusions when the initial decision reflects that the
administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions). Therefore, the appellant has failed
to show that the administrative judge erred in finding that she did not show that
her retirement was involuntary.
The appellant failed to show that the agency did not establish that it would have
removed her from her position as OSI Co-Champion absent her protected
disclosures.
In her cross petition for review, the appellant also challenges the
administrative judge’s finding that the agency proved by clear and convincing
evidence that it would have removed her from her OSI Facility Co-Champion role
in the absence of her protected disclosures. PFR File, Tab 3 at 22. The appellant
argues that the administrative judge misapplied the standard by essentially13
“call[ing] a ‘tie,’” and that, in so doing, he did not hold the agency to its high
burden of proof. Id. at 23.
The administrative judge found, based on the appellant’s testimony, that
her OSI Co-Champion duties were removed concurrently with the suspension of
her privileges, HT at 92, 103 (testimony of the appellant); ID at 49, and that,
under the circumstances, the two actions were likely tied together in that the
appellant could not provide guidance on opioid matters while her privileges were
suspended. ID at 50. Acknowledging the dearth of evidence presented specific to
this action, the administrative judge determined that he must consider it within
the context of the evidence as a whole, including the results of the OMI
investigation, the local news story, the appellant’s testimony before the
Administrative Investigative Board,6 and the Congressional Committee’s inquiry
into the actions taken against her in light of the OMI’s findings. On that basis,
the administrative judge concluded that the agency presented clear and
convincing evidence that it would have removed the appellant as OSI Facility Co-
Champion absent her protected disclosures, pending further investigation. ID
at 50.
As we have stated, the Board does not view the Carr factors as discrete
elements, each of which the agency must prove by clear and convincing evidence;
rather, the Board will weigh the factors together to determine whether the
evidence is clear and convincing as a whole. Mithen, 122 M.S.P.R. 489, ¶ 36.
That is what the administrative judge did here. The appellant acknowledged that,
once the agency suspended her privileges, she could no longer serve as OSI Co-
Champion, and that, as a consequence, the agency removed her from that role.
We have found that the agency had strong evidence in support of its action to
suspend the appellant’s privileges. Because the agency was compelled to then
6 The appellant acknowledged in her sworn testimony that she did not physically engage
in face-to-face meetings with veterans at remote locations regarding the tapering of
opioid prescriptions, but she contended that she did not have time to do so, given the
extent of her responsibilities. IAF, Tab 12 at 199-200.14
remove the appellant as OSI Co-Champion, it necessarily had strong evidence in
support of that action. Based on the strength of that evidence, and
notwithstanding that the agency had a motive to retaliate and that the record
contains no information regarding whether the agency removed employees from
the role of OSI Co -Champion who were not whistleblowers,7 we find that the
appellant has not shown that the administrative judge erred in finding that the
agency showed by clear and convincing evidence that it would have removed the
appellant as OSI Co-Champion absent her protected disclosures.8
The appellant has not challenged on review the administrative judge’s
finding that the agency showed by clear and convincing evidence that it would
have proposed the reprimand based on the appellant’s failure to follow medical
center policy absent her protected disclosures. Because the appellant has not
challenged this finding on review, we do not address it further.
In sum, we find that the agency proved by clear and convincing evidence
that it would have taken all three personnel actions absent the appellant’s
protected disclosures, and that therefore her request for corrective action is
denied.
7 The other OSI Co-Champion who served with the appellant was not a medical doctor,
and there is no evidence to suggest that there were other co-champions prior to the time
the appellant held that role.
8 The appellant also argued that there is no evidence in the record that the agency ever
reinstated her as OSI Co-Champion after it restored her privileges. PFR File, Tab 3
at 23. However, she did not claim below that any such failure on the agency’s part was
a personnel action. IAF, Tab 26 at 6. Therefore we need not consider this matter on
review. McCarthy v. International Boundary and Water Commission , 116 M.S.P.R.
594, ¶ 27 (2011) (finding that an issue is not properly before the Board where it is not
included in the administrative judge’s summary of the prehearing conference, which
stated that no other issues will be considered, where neither party objects to the
exclusion of that issue in the summary), aff’d, 497 F. App’x 4 (Fed. Cir. 2012).15
NOTICE OF APPEAL RIGHTS9
This decision constitutes the Board’s final decision in this matter. 5 C.F.R.
§ 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1).
By statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.16
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on17
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or18
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.10 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision. 5
U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website 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 original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.20 | Drumm_Lori_L_CH-1221-18-0158-W-1_Final_Order.pdf | 2024-10-28 | LORI LEE DRUMM v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-18-0158-W-1, October 28, 2024 | CH-1221-18-0158-W-1 | NP |
392 | https://www.mspb.gov/decisions/nonprecedential/Jones_Darin_A_DC-1221-20-0630-W-1_FInal_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DARIN ANDREW JONES,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-1221-20-0630-W-1
DATE: October 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Darin Andrew Jones , Potomac, Maryland, pro se.
Nikki Greenberg , Washington Naval Yard, District of Columbia,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review. Except as expressly MODIFIED to address alternative
findings relating to contributing factor and exhaustion of remedies, and to
supplement the analysis of the knowledge/timing test, we AFFIRM the initial
decision.
BACKGROUND
¶2The appellant filed this IRA appeal alleging that, in reprisal for his
whistleblowing and protected activity, the agency rescinded a tentative job offer
for the position of Supervisory Contract Specialist on January 13, 2020. Initial
Appeal File (IAF), Tab 1 at 3, 5. The appellant’s alleged disclosures included
assertions to the agency on January 10, 2020, that its Human Resources (HR)
department had violated proper HR procedures when it failed to timely
communicate with him regarding onboarding for new employees after the
tentative job offer, his submission to the agency on November 27, 2019, in
response to its request, of a Standard Form (SF) 50 showing his termination
during his probationary period from the Federal Bureau of Investigation (FBI),
and his claim, while employed at the FBI in 2012, that the FBI had violated
procurement laws. Id. at 5, 10, 20-23, 26, 31; IAF, Tab 5 at 5. The appellant also2
asserted that he had engaged in protected activity relating to his 2012 termination
from the FBI, including the filing of a Board appeal of that action. IAF, Tab 1
at 5, 26, 31.
¶3After issuing a jurisdictional order and receiving responses from the parties,
e.g., IAF, Tabs 3, 5, 9-10, 12, 20-23, the administrative judge dismissed the
appeal for lack of jurisdiction without holding the appellant’s requested hearing.
IAF, Tab 24, Initial Decision (ID) at 1, 12-13.
¶4The appellant has filed a petition for review of the initial decision, the
agency has filed a response, and the appellant has filed a reply. Petition for
Review (PFR) File, Tabs 1, 3, 5. The appellant asserts that the administrative
judge improperly weighed evidence, erred in finding that he failed to make a
nonfrivolous allegation of a protected disclosure, failed to consider his “discovery
evidence,” failed to adjudicate a novel claim that he raised, and exhibited
favoritism toward the agency. PFR File, Tab 1 at 4-12, Tab 5 at 4-18.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant failed to make a nonfrivolous allegation of a protected disclosure
regarding his January 10, 2020 email to HR.
¶5The administrative judge concluded that the appellant failed to make a
nonfrivolous allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8)
regarding his January 10, 2020 email to HR. ID at 9. The administrative judge
also concluded that the appellant failed to nonfrivolously allege that this email
contributed to the agency’s rescission of his tentative job offer. ID at 8. We
agree with the former finding, but vacate the latter finding.
¶6A protected disclosure is one that an appellant reasonably believes
evidences 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. Mudd v. Department of Veterans Affairs , 120 M.S.P.R.
365, ¶ 5 n.3 (2013). The proper test for determining whether an appellant had a3
reasonable belief that his disclosures were protected is whether a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by the appellant could reasonably conclude that the actions evidenced any of the
conditions set forth in 5 U.S.C. § 2302(b)(8). Id., ¶ 5.
¶7Although the appellant characterized his email as having disclosed that the
agency was violating “acceptable and proper HR procedure,” the email merely
conveyed the appellant’s belief that he was not being treated fairly by the agency
and that the agency had no reason to withdraw his tentative job offer.2 IAF,
Tab 5 at 6, 17. Indeed, instead of disclosing HR improprieties, the email stated as
follows: “How is [the agency’s lack of communication] acceptable and proper
HR procedure?” Id. at 17. Thus, we find that the email amounted to a vague
query as to whether the agency had treated the appellant fairly or complied with
unidentified HR best practices, and therefore did not constitute a protected
disclosure under 5 U.S.C. § 2302(b)(8). See Rzucidlo v. Department of the Army ,
101 M.S.P.R. 616, ¶ 13 (2006) (explaining that disclosures must be specific and
detailed, not vague allegations of wrongdoing regarding broad or imprecise
matters); see also Gryder v. Department of Transportation , 100 M.S.P.R. 564,
¶ 13 (2005) (finding that the appellant’s statement of his personal disagreement
with the agency’s decision not to rehire him did not amount to a protected
disclosure).
2 In Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1369 (Fed. Cir. 2020),
the court explained that the Board’s jurisdictional determination in an IRA appeal “must
be determined based on whether the employee alleged sufficient factual matter,
accepted as true, to state a claim that is plausible on its face.” However, we need not
consider allegations “in a vacuum.” Id. at 1369 n.5. Here, therefore, we look beyond
the appellant’s characterization of his email to consider the document itself. IAF, Tab 5
at 17. In any event, we find that even the appellant’s characterization of his email fell
short of a nonfrivolous allegation of a protected disclosure. See Salerno v. Department
of the Interior, 123 M.S.P.R. 230, ¶¶ 7-9 (2016) (finding that the appellant failed to
make a nonfrivolous allegation that he reasonably believed he had disclosed a violation
of law when he made vague allegations of wrongdoing and referenced broad statutory
provisions).4
¶8The administrative judge also concluded that the appellant failed to
nonfrivolously allege that his January 10, 2020 email had contributed to the
rescission of his job offer, crediting the agency’s argument that it had initiated
the withdrawal of the offer before the appellant sent the above email and relying
on supporting documentary evidence provided by the agency, i.e., email
correspondence dated December 23, 2019, and January 9, 2020. ID at 8. The
Board may not, however, deny an appellant the right to a hearing by “crediting
the agency’s interpretation of the evidence as to . . . whether the disclosures were
a contributing factor to an adverse action.” Hessami v. Merit Systems Protection
Board, 979 F.3d 1362, 1369 (Fed. Cir. 2020). Because the administrative judge
incorrectly relied on evidence submitted by the agency and credited its
interpretations of that evidence, we modify the initial decision accordingly.
The appellant’s submission of his SF-50 did not constitute a protected disclosure.
¶9The administrative judge found that the appellant’s submission of the SF -50
documenting his termination did not constitute a protected disclosure, but also
concluded that the appellant failed to exhaust this disclosure with the Office of
Special Counsel (OSC). ID at 12. Again, although we agree with the former
finding, we disagree with the latter and modify the initial decision accordingly.
¶10We discern no basis to disturb the administrative judge’s conclusion that the
appellant’s submission of the SF-50 did not constitute a nonfrivolous allegation
of a disclosure pertaining to 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. ID at 12; see 5 U.S.C. § 2302(b)
(8); see also Mudd, 120 M.S.P.R. 365, ¶ 5 n.3. Indeed, the appellant’s apparent
belief that the agency improperly required hm to submit the subject form does not
transform his submission of the document into a protected disclosure. See Doster
v. Department of the Army , 56 M.S.P.R. 251, 253-54 (1993) (concluding that the
Board lacked jurisdiction over the appeal when the appellant’s filings contained a5
litany of allegations of agency improprieties but failed to discernably allege any
disclosures regarding the same).
¶11Although the administrative judge also concluded that the appellant failed
to show that he raised this purported disclosure with OSC, we disagree. IAF,
Tab 1 at 22-23; see, e.g., Mudd, 120 M.S.P.R. 365, ¶ 12 (holding that an appellant
can demonstrate exhaustion by providing the OSC complaint). Accordingly, we
modify this aspect of the administrative judge’s alternative finding regarding
exhaustion.
The appellant failed to satisfy the contributing factor jurisdictional criterion
regarding his remaining alleged protected disclosures and activities.
¶12The administrative judge concluded that the appellant failed to make a
nonfrivolous allegation that any of his remaining alleged protected disclosures or
activities, i.e., his 2011 -2012 procurement-related FBI disclosures or his
post-termination litigation, contributed to the agency’s rescission of the tentative
job offer.3 ID at 9-12. Although we agree with this determination, we modify
and supplement the administrative judge’s analysis of the knowledge/timing test.
¶13An appellant’s protected disclosures or activities are a contributing factor in
a personnel action if, among other things, they in any way affect an agency’s
decision to take or fail to take a personnel action. Dorney v. Department of the
Army, 117 M.S.P.R. 480, ¶ 14 (2012). One way to establish contributing factor is
the knowledge/timing test. Wadhwa v. Department of Veterans Affairs ,
3 The administrative judge did not analyze whether any of these claims amounted to a
nonfrivolous allegation of a protected disclosure or protected activity. Because we
agree that the appellant failed to satisfy the contributing factor criterion, the absence of
such an analysis is not a material error. Nevertheless, under 5 U.S.C. § 2302(b)(9)(C),
disclosures of information to an agency’s Inspector General are protected regardless of
content as long as such disclosures are made in accordance with applicable provisions
of law. Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8. Thus, the appellant’s
assertion that he disclosed information to the Department of Justice Inspector General
constituted a nonfrivolous allegation of protected activity under 5 U.S.C.
§ 2302(b)(9)(C). To the extent his prior litigation sought to remedy whistleblower
reprisal, it too would constitute protected activity. See Bishop v. Department of
Agriculture, 2022 MSPB 28, ¶ 15 (explaining that complaints seeking to remedy
whistleblower reprisal are covered under 5 U.S.C. § 2302(b)(9)(A)(i)).6
110 M.S.P.R. 615, ¶ 12, aff’d, 353 F. App’x 435 (Fed. Cir. 2009). Under this
test, an appellant can prove the contributing factor element through evidence
showing that the official taking the action knew of the protected activity and the
action occurred within a period of time such that a reasonable person could
conclude that the activity was a contributing factor in the personnel action. Id.
¶14The administrative judge found that the appellant failed to satisfy the
knowledge component because he failed to allege that the official who rescinded
the job offer had any knowledge of his FBI-related disclosures or activities. ID
at 10. She reasoned that the appellant’s assertions regarding how the official may
have learned of the same, e.g., through an internet search, publicly available court
filings, or the Congressional Record, were “purely speculative.” Id. She also
relied on deposition testimony from the official indicating that she had not
researched the appellant on the internet and was unaware of his alleged FBI
whistleblowing. ID at 10 & n.7. The administrative judge further considered the
agency’s stated reason for rescinding the tentative job offer, i.e., that it had
learned that he had been terminated from his last Federal position, and found that
reason to be “certainly justifiable.” ID at 11.
¶15As explained above, in resolving questions of jurisdiction, the Board may
not deny an appellant the right to a hearing by crediting the agency’s
interpretation of the evidence, nor may it weigh evidence to resolve the parties’
conflicting assertions. See Hessami, 979 F.3d at 1369; Ferdon v. U.S. Postal
Service, 60 M.S.P.R. 325, 329 (1994). Thus, the administrative judge incorrectly
relied on the deposition transcript and the agency’s explanation for withdrawing
the appellant’s tentative job offer.4 ID at 11. Accordingly, we modify the initial
decision’s analysis of the knowledge component of the knowledge/timing test, but
we find, as set forth below, that a different outcome is not warranted.
4 To the extent that the administrative judge also relied on the deposition testimony of
other agency employees, ID at 10-11 & n.8, her reliance was similarly misplaced. 7
¶16Absent consideration of the agency’s evidence and argument, the appellant
nonetheless failed to make a nonfrivolous allegation that the acting official had
any knowledge of his FBI-related disclosures or activities. The appellant’s
assertions as to how this official may have learned of these disclosures or
activities are entirely speculative and, therefore, insufficient. As set forth in the
initial decision, the disclosures and activities occurred as much as 8 years before
the rescission of the job offer and concerned the appellant’s tenure at a
completely different agency. ID at 11; see Jones v. Department of the Treasury ,
99 M.S.P.R. 479, ¶¶ 7-8 (2005) (finding insufficient the appellant’s speculation
that an agency official may have learned of a protected disclosure that she made
11 years prior while working at a separate agency facility). Thus, although we
modify the legal basis for the conclusion, we agree with the administrative judge
that the appellant failed to make nonfrivolous allegations sufficient to satisfy the
contributing factor criterion regarding the rescinding official’s knowledge of the
appellant’s FBI-related protected disclosures or activities.
¶17An appellant may also satisfy the knowledge/timing test by proving that the
official taking the action had constructive knowledge of the protected disclosure,
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 showing that an individual with actual knowledge of the disclosure
influenced the official accused of taking the retaliatory action. Id.
¶18Here, the appellant asserted that an agency attorney had “looked [him] up”
and discovered “protected activity regarding [his] 2012 termination (wrongful)
from the FBI” as well as “information and articles” about him. IAF, Tab 20
at 18; see PFR File, Tab 5 at 7-8, 11, 15. Because the administrative judge did
not consider these allegations, we supplement the analysis to consider this claim,
finding that a different outcome is not warranted. The appellant’s assertions that
the attorney must have researched him and thereafter influenced the rescinding
official again are entirely speculative. See Jones, 99 M.S.P.R. 479, ¶ 8.8
Although the appellant argued otherwise, there is nothing inherently suspect or
improper about the agency having asserted attorney-client privilege during
discovery. See Grimes v. Department of the Navy , 99 M.S.P.R. 7, ¶ 6 (2005); see
also 5 C.F.R. § 1201.72(b) (stating that discovery covers relevant, nonprivileged
matters). Thus, we find that the appellant has failed to nonfrivolously allege that
any of his remaining alleged protected disclosures or activities contributed to the
rescission of his tentative job offer.5
¶19Finally, the appellant’s other arguments on review do not warrant a
different outcome. The appellant has not identified which factual disputes the
administrative judge allegedly improperly weighed or resolved, see Tines v.
Department of the Air Force , 56 M.S.P.R. 90, 92 (1992), and we have found that
the administrative judge’s improper consideration of certain agency evidence and
argument did not affect the outcome in this case. Other vague and general
disagreements with the initial decision, PFR File, Tab 1 at 7, Tab 5 at 14-15, do
not provide a basis to disturb the conclusion that the appellant did not make a
nonfrivolous allegation of protected disclosures or activity that was a contributing
factor in a personnel action. Any failure by the administrative judge to discuss
all of the evidence of record does not mean that it was not considered in reaching
the decision. See Marques v. Department of Health and Human Services ,
22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
Even assuming that the appellant exhausted before OSC his claim that the agency
perceived him as a whistleblower, given the absence of a nonfrivolous allegation
5 The Board has found that, if an appellant fails to prove contributing factor through the
knowledge/timing test, it shall consider other evidence, such as the strength or
weakness of the agency’s reasons for taking the personnel action, whether the
whistleblowing was personally directed at the individuals taking the personnel action,
and whether those individuals had a desire or motive to retaliate against the appellant.
Dorney, 117 M.S.P.R. 480, ¶ 15. Here, the administrative judge implicitly considered
such evidence but found that it did not satisfy the jurisdictional criterion. ID at 11-12.
We have considered this evidence, as well as the appellant’s allegations regarding the
agency’s attorney, but agree with the administrative judge that the appellant failed to
nonfrivolously allege the contributing factor criterion based on this other evidence.9
of actual or constructive knowledge of his disclosures or activity on the part of
the acting official, the appellant failed to make a nonfrivolous allegation that the
agency perceived him as a whistleblower. Because the appellant did not file a
motion seeking the certification of an interlocutory appeal before the
administrative judge, see 5 C.F.R. § 1201.93(a), he is precluded from doing so on
review, see Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980).
Although the appellant claims that the administrative judge exhibited favoritism
toward the agency, he has not shown that the administrative judge’s comments or
actions evidence a deep-seated favoritism or antagonism that would make fair
judgment impossible. See Bieber v. Department of the Army , 287 F.3d 1358,
1362-63 (Fed. Cir. 2002).
¶20Accordingly, we affirm the initial decision as modified, still dismissing the
appellant’s IRA appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review
of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your
claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.10
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 11
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 12
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 13
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | Jones_Darin_A_DC-1221-20-0630-W-1_FInal_Order.pdf | 2024-10-25 | DARIN ANDREW JONES v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-1221-20-0630-W-1, October 25, 2024 | DC-1221-20-0630-W-1 | NP |
393 | https://www.mspb.gov/decisions/nonprecedential/Walker_James_L_SF-1221-21-0305-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES L. WALKER,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-1221-21-0305-W-1
DATE: October 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James L. Walker , Helendale, California, pro se.
Robert Aghassi , Veronica Hale , and Emelia M. Sanchez ,
Barstow, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction, as
untimely filed, and barred by collateral estoppel. Generally, we grant petitions
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. The initial decision is
MODIFIED to find that, although the administrative judge should have dismissed
the claims that had been decided in the August 15, 2018 initial decision under the
doctrine of adjudicatory efficiency and not collateral estoppel, because the Board
has issued a final order in the prior case, it is now proper to bar those claims
under collateral estoppel. We otherwise AFFIRM the initial decision.
BACKGROUND
On February 20, 2018, the appellant filed a complaint with the Office of
Special Counsel (OSC), designated as OSC File No. MA-18-2306 (hereafter
referred to as 2306 OSC complaint), alleging that the agency suspended him on
October 10, 2017, and February 19, 2018, in reprisal for his protected disclosures
and activities.2 Walker v. Department of the Navy , MSPB Docket No. SF-1221-
18-0510-W-1, Initial Appeal File (0510 IAF), Tab 4 at 5-11. OSC informed the
2 The appellant also filed a complaint with OSC in October 2017, in which he alleged
that the agency suspended him in August 2017 for filing a claim with the Office of
Workers’ Compensation Programs. Walker v. Department of the Navy , MSPB Docket
No. SF-1221-18-0510-W-1, Initial Appeal File, Tab 13 at 74-82. It is not clear from the
record what action(s) OSC took regarding this complaint, but the appellant has not
made any allegations raised in that complaint in this appeal, so we need not further
discuss it.2
appellant that it was closing its investigation into that complaint in an April 26,
2018 letter because it appeared that he had elected to contest the suspensions
through a negotiated grievance procedure. Id. at 2. The appellant filed an IRA
appeal with the Board on May 7, 2018. 0510 IAF, Tab 1. The administrative
judge dismissed the appeal for lack of jurisdiction in an August 15, 2018 initial
decision, and the appellant filed a petition for review. Walker v. Department of
the Navy, MSPB Docket No. SF-1221-18-0510-W-1, Initial Decision (Aug. 15,
2018); Walker v. Department of the Navy , MSPB Docket No. SF-1221-18-0510-
W-1, Petition for Review File, Tab 3.
While that petition for review was pending before the Board, the appellant
filed the instant IRA appeal on April 9, 2021. Walker v. Department of the Navy ,
MSPB Docket No. SF-1221-21-0305-W-1, Initial Appeal File (0305 IAF), Tab 1.
In this appeal, the appellant again submitted OSC’s April 26, 2018 close -out
letter and raised both the October 2017 and February 2018 suspensions discussed
above.3 Id. at 4, 9-10, 14. The administrative judge issued a series of orders
identifying the issues raised by the appeal, informing the appellant of the
elements and burdens of proof, and affording the parties the opportunity to submit
evidence and arguments. 0305 IAF, Tabs 2-4, 12. In response, among other
things, the appellant submitted a May 30, 2019 OSC close-out letter regarding
what appears to be a second OSC complaint, OSC File No. MA-19-3731
3 The appellant included with his appeal a Standard Form 50 documenting a May 28,
2019 14-day suspension. 0305 IAF, Tab 1 at 11. A suspension of 14 days is not within
the Board’s jurisdiction as an otherwise appeal action, 5 U.S.C. § 7512(2), but is a
personnel action for purposes of the Board jurisdiction over IRA appeals, Smith v.
Department of the Army , 80 M.S.P.R. 311, ¶ 11 (1998). As there is no evidence that the
appellant exhausted this matter with OSC, there is no basis for the Board to exercise
IRA appeal jurisdiction over it. Carney v. Department of Veterans Affairs ,
121 M.S.P.R. 446, ¶ 4 (2014) (stating that the first element of Board jurisdiction over
an IRA appeal is exhaustion of administrative remedies with OSC); see Chambers v.
Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11 (holding that exhaustion
requirements are met when an appellant has provided OSC with a sufficient basis to
pursue an investigation). Thus, we will not consider the May 28, 2019 suspension
further. 3
(hereafter referred to as 3731 OSC complaint). 0305 IAF, Tab 10 at 4. After
considering the record evidence, the administrative judge dismissed the appeal in
a May 19, 2021 initial decision. 0305 IAF, Tab 22, Initial Decision (0305 ID).
Among other things, the administrative judge found that, because the May 30,
2019 OSC close-out letter described the appellant’s claim in his second OSC
complaint as reprisal for equal employment opportunity (EEO) activity, the
appellant’s disclosures were not protected under the whistleblower protection
statutes. Id. at 12. The administrative judge also found that, based on a
consideration of both OSC close-out letters, the appeal was untimely filed and the
appellant did not show that circumstances warranted the invocation of equitable
tolling. Id. at 13-14. Finally, the administrative judge found that collateral
estoppel barred relitigation of the issues previously addressed in the August 15,
2018 initial decision, which, as noted, was based on OSC’s April 26, 2018
close-out letter regarding the appellant’s February 20, 2018 OSC complaint. Id.
at 15-16.
The appellant has filed a petition for review of the initial decision
asserting, among other things, that his appeal was timely filed and that equitable
tolling should apply. Walker v. Department of the Navy , MSPB Docket No. SF-
1221-21-0305-W-1, Petition for Review (0305 PFR) File, Tab 1. The agency has
responded in opposition to the petition for review, to which the appellant has
replied. 0305 PFR File, Tabs 3-4. After the record on review closed in this case,
the Board issued a final order in the appellant’s prior appeal. Walker v.
Department of the Navy , MSPB Docket No. SF-1221-18-0510-W-1, Final Order
(May 21, 2024). In that order, the Board denied the appellant’s petition for
review but vacated the initial decision and dismissed the appeal for lack of
jurisdiction. Id.4
The administrative judge erred in finding that the claims decided in the
August 15, 2018 initial decision were barred by the doctrine of collateral
estoppel, but his error did not harm the appellant’s substantive rights.
As discussed above, in the May 19, 2021 initial decision, the administrative
judge found that collateral estoppel precluded the appellant’s appeal of the
matters addressed in the August 15, 2018 initial decision. Collateral estoppel is
appropriate when the following conditions are met: (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 of the issue in the prior action was necessary to the
resulting judgment; and (4) the party against whom issue preclusion is sought
had a full and fair opportunity to litigate the issue in the prior action, either as a
party to the earlier action or as one whose interests were otherwise fully
represented in that action. Hau v. Department of Homeland Security ,
123 M.S.P.R. 620, ¶ 13 (2016), aff’d sub nom. Bryant v. Merit Systems Protection
Board, 878 F.3d 1320 (Fed. Cir. 2017). Collateral estoppel bars the relitigation
of issues that have previously been fully litigated and made part of a final
judgment. Zgonc v. Department of Defense, 103 M.S.P.R. 666, ¶ 6 (2006), aff'd,
230 F. App’x 967 (Fed. Cir. 2007).
As the administrative judge noted in his initial decision, at the time he
issued the decision the Board had not yet ruled on the appellant’s petition for
review of the August 15, 2018 initial decision. 0305 ID at 2, 7, 15-16. Thus,
because the initial decision in the prior appeal was not yet final, the
administrative judge erred in dismissing this appeal by applying the doctrine of
collateral estoppel.
When an appellant files an appeal that raises claims raised in an earlier
appeal after the initial decision in the earlier appeal has been issued, but before
the full Board has acted on the appellant’s petition for review, it is appropriate to
dismiss the subsequent appeal on the grounds of adjudicatory efficiency. Bean v.
U.S. Postal Service , 120 M.S.P.R. 447, ¶ 5 (2013). In other words, the Board will5
dismiss on the basis of adjudicatory efficiency when an identity of issues exists
and the controlling issues in the appeal will be determined in a prior appeal. Id.
Although the administrative judge should have dismissed this appeal on the basis
of adjudicatory efficiency, because the Board has now issued a final decision in
the prior appeal, as explained below, we find that this appeal is now barred by
collateral estoppel.
Considering the conditions necessary for application of collateral estoppel,
first, we find that the issues in the two appeals were identical because, in both
appeals the appellant was alleging that the October 2017 and February 2018
suspensions were taken in retaliation for his protected disclosures. In fact, the
appellant submitted the close-out letter from the 2306 OSC complaint in support
of his claim that he had exhausted his remedies with OSC as to both appeals.
Further, the Board dismissed the prior appeal for lack of jurisdiction, so the
appellant’s claims were actually litigated in that appeal and necessary to the
judgment. See Luecht v. Department of the Navy, 87 M.S.P.R. 297, ¶ 16 (2000)
(finding that the appellant was collaterally estopped from asserting an issue he
had raised in a previous appeal that was dismissed for lack of jurisdiction).
Finally, the appellant was a party to the prior appeal and therefore had a full and
fair opportunity to litigate the issues. Accordingly, because we find that
collateral estoppel is now applicable as a basis for dismissal of this appeal, the
administrative judge’s error in prematurely dismissing this appeal under collateral
estoppel did not prejudice the appellant’s substantive rights. See Panter v.
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (explaining that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision).4
4 In the Final Order dismissing the appellant’s prior IRA appeal for lack of jurisdiction,
the Board found that only the claims raised in the 2306 OSC complaint were at issue in
that appeal. Walker, MSPB Docket No. SF-1221-18-0510-W-1, Final Order, ¶¶ 13-14.
As discussed above, in this appeal the appellant submitted a May 30, 2019 OSC letter
notifying him that it was closing its investigation into the 3731 OSC complaint. The
administrative judge found that, because that letter described the appellant’s claim as6
The administrative judge correctly found as an alternative disposition that the
appeal was untimely filed and equitable tolling did not apply.
As noted above, OSC closed its inquiry into the appellant’s complaints on
April 26, 2018, and May 30, 2019, and the appellant filed the instant appeal on
April 9, 2021. 0510 IAF, Tab 4 at 2; 0305 IAF, Tabs 1, 10 at 4. Pursuant to
5 U.S.C. § 1214(a)(3)(A)(ii), any appellant who wishes to seek corrective action
with the Board must do so within 60 days from an OSC close-out letter. Under
the Board’s regulations implementing the statutory limit, an IRA appeal must be
filed no later than 65 days after the date that OSC issues its close-out letter, or, if
the appellant shows that the letter is received more than 5 days after its issuance,
within 60 days of the date of receipt. 5 C.F.R. § 1209.5(a)(1). Unlike the
Board’s regulatory time limits for appeals filed under 5 U.S.C. § 7701, the
statutory time limit for filing an IRA appeal cannot be waived for good cause
shown because there is no statutory mechanism for doing so. Heimberger v.
Department of Commerce , 121 M.S.P.R. 10, ¶ 9 (2014). Nonetheless, the filing
deadline might be subject to equitable tolling, under which the filing period is
suspended for equitable reasons, such as when the complainant has been induced
or tricked by his adversary’s misconduct into allowing the deadline to pass. Id.,
¶ 10; 5 C.F.R. § 1209.5(b).
Below, despite receiving notice regarding the untimeliness of the appeal,
the appellant did not address that issue. Because the appellant made no allegation
reprisal for EEO activity, the appellant’s disclosures were not protected under the
Whistleblower Protection Enhancement Act of 2012. 0305 ID at 12. The appellant
does not specifically challenge this finding on review, and we discern no error in the
administrative judge’s reasoning. See Edwards v. Department of Labor , 2022 MSPB 9,
¶ 10 (holding that filing an EEO complaint is a matter relating solely to discrimination
and is not protected by 5 U.S.C. § 2302(b)(8)), aff’d, No. 2022-1967, 2023 WL 4398002
(Fed. Cir. July 07, 2023); Williams v. Department of Defense , 46 M.S.P.R. 549, 554
(1991). Likewise, there is no indication in the record that the substance of the
appellant’s EEO complaint sought to remedy a violation of 5 U.S.C. § 2302(b)(8), and
thus, the complaint does not constitute protected activity under 5 U.S.C. § 2302(b)(9)
(A)(i). Accordingly, the administrative judge correctly found that the Board lacked
jurisdiction over the claim. Edwards, 2022 MSPB 9, ¶¶ 24-25; Mudd v. Department of
Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013).7
that he received either of OSC’s close-out letters more than 5 days after they were
issued, he had 65 days after OSC’s issuance of the letters to file his IRA appeal.
See 5 C.F.R. §§ 1201.23, 1209.5(a)(1). Thus, to the extent he intended to file an
IRA appeal based on the May 30, 2019 close-out letter, the deadline to file this
IRA appeal was August 3, 2019. The appellant did not file his appeal until
April 9, 2021. If the appellant is alleging that his IRA appeal was based on
OSC’s April 26, 2018 close-out letter, it is even more untimely filed.
The appellant alleges on review that the administrative judge erred by not
applying the doctrine of equitable tolling. 0305 PFR File, Tab 1 at 3. However,
he does not explain why he believes the administrative judge erred. Id. Equitable
tolling is a rare remedy that is to be applied in unusual circumstances and
generally requires a showing that the litigant has been pursuing his rights
diligently and some extraordinary circumstances stood in his way. Heimberger,
121 M.S.P.R. 10, ¶ 10; 5 C.F.R. § 1209.5(b). We find that there is no basis to
disturb the administrative judge’s finding that equitable tolling did not apply.5
In sum, we find that, although the administrative judge improperly applied
the doctrine of collateral estoppel in dismissing the appeal, collateral estoppel is
now applicable and bars this appeal. Further, even if collateral estoppel did not
apply, we find that the appeal was untimely filed and the appellant has not shown
that the filing delay should be equitably tolled.
5 The appellant also asserts on review, without explanation, that he made a nonfrivolous
allegation of jurisdiction, that agency witnesses made false statements, and that he was
tricked into entering into a settlement agreement. 0305 PFR File, Tab 1 at 3. None of
these claims are relevant to the timeliness issue or the application of a preclusive
doctrine. To the extent that the appellant is asserting that the Board has jurisdiction
over this appeal, the appellant does not explain the basis for such a conclusion. Id. The
appellant attaches to his petition for review a number of documents, most of which are
included in the record below. Id. at 5-35. The appellant submits for the first time on
review an affidavit and rebuttal from an EEO investigation, but he has not shown how
this document is relevant to the dispositive issues in this appeal or why he could not
have presented it prior to the close of the record below. 0305 PFR File, Tab 1 at 15-35;
see 5 C.F.R. § 1201.115. Regarding the appellant’s assertions in his reply to the
agency’s response to his petition for review about a May 2021 proposed removal and
whistleblower reprisal complaint, those matters are not at issue in this appeal. 8
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on10
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or11
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Walker_James_L_SF-1221-21-0305-W-1_Final_Order.pdf | 2024-10-25 | JAMES L. WALKER v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-1221-21-0305-W-1, October 25, 2024 | SF-1221-21-0305-W-1 | NP |
394 | https://www.mspb.gov/decisions/nonprecedential/Granville-Golackey_Kenneth_W_DE-0731-19-0408-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH W. GRANVILLE-
GOLACKEY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0731-19-0408-I-2
DATE: October 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kenneth W. Granville-Golackey , Maricopa, Arizona, pro se.
Darlene M. Carr , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of a negative suitability determination as moot after the
Office of Personnel Management (OPM) rescinded the determination. On petition
for review, the appellant argues that the administrative judge erred in dismissing
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the matter as moot because, following OPM’s rescission, his employing agency,
the Department of Veterans Affairs (DVA), discriminated against him and failed
to provide him with certain remedial relief, to include back pay. Petition for
Review (PFR) File, Tab 1 at 4, Tab 2 at 3, Tab 3 at 3, Tab 4 at 3.2 Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
In suitability actions, the Board’s jurisdiction is limited to that provided
under 5 C.F.R. § 731.501, and does not extend to reviewing or modifying the
ultimate action taken as a result of a suitability determination. Folio v.
Department of Homeland Security , 402 F.3d 1350, 1353, 1355-56 (Fed. Cir.
2005); Odoh v. Office Personnel Management , 2022 MSPB 5, ¶ 16. Here, insofar
as it is undisputed that OPM rescinded its negative suitability determination, we
2 The appellant also expresses displeasure regarding the length of the appeal process
and avers that he “ask[ed] the [administrative] judge to dismiss the case in a timely
fashion [a] year ago.” PFR File, Tab 1 at 4, Tab 4 at 3. These vague statements,
however, do not provide a basis to disturb the administrative judge’s conclusion that
OPM’s rescission of its suitability determination rendered the matter moot. See Tines v.
Department of the Air Force , 56 M.S.P.R. 90, 92 (1992) (explaining that a petition for
review must contain sufficient specificity to enable the Board to ascertain whether there
is a serious evidentiary challenge). 2
agree that the matter was rendered moot.3 Granville-Golackey v. Office of
Personnel Management , MSPB Docket No. DE-0731-19-0408-I-1, Initial Appeal
File, Tab 8 at 6-7; see Harris v. Department of Transportation , 96 M.S.P.R. 487,
¶ 8 (2004) (explaining that an appeal is moot if the agency completely rescinds its
action and appellant has received all of the relief that he could have received if
the matter had been adjudicated and he had prevailed).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 Although this matter is moot, and the Board therefore has no authority to order OPM
or the DVA to take any action, we note that OPM has authority to direct the DVA to
“restore [the appellant] to duty or otherwise reverse any action taken.” 5 C.F.R.
§ 5.3(a)(1). The Board has interpreted OPM’s regulatory authority under section 5.3
broadly, stating that OPM has authority to direct an agency to take “any other action
necessary” to correct an erroneous action. See Post v. Office of Personnel Management ,
27 M.S.P.R. 572, 575 (1985). This includes the authority to “certify to the Comptroller
General of the United States the agency’s failure to act together with such additional
information as the Comptroller General may require, and [to] furnish a copy of such
certification to the head of the agency concerned.” 5 C.F.R. § 5.3(c). The employee
designated to correct the erroneous action “shall be entitled thereafter to no pay or only
to such pay as appropriate to effectuate [OPM’s] instructions. Id. Therefore, if the
appellant believes that the DVA has not fully carried out OPM’s instruction of
September 13, 2019, he may notify OPM of the specific parts of the instruction that the
DVA has failed to follow and request that OPM exercise its enforcement authority.
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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 5
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Granville-Golackey_Kenneth_W_DE-0731-19-0408-I-2_Final_Order.pdf | 2024-10-25 | null | DE-0731-19-0408-I-2 | NP |
395 | https://www.mspb.gov/decisions/nonprecedential/Huntley_Trisha_S_NY-844E-21-0105-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRISHA SHAYNE HUNTLEY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-844E-21-0105-I-1
DATE: October 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Trisha Shayne Huntley , Fulton, New York, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of the Office of Personnel Management (OPM)
reconsideration decision as untimely filed with no good cause shown. Generally,
we grant petitions such as this one only in the following circumstances: the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
On July 17, 2020, OPM issued a reconsideration decision affirming its
initial decision that the appellant failed to establish eligibility for disability
retirement benefits under the Federal Employees’ Retirement System. Initial
Appeal File (IAF), Tab 5 at 15-19. The appellant signed for and received OPM’s
reconsideration decision sent via certified mail on July 23, 2020. Id. at 20. The
decision specifically informed the appellant that she could file an appeal with the
Board within 30 calendar days after her receipt of the decision. Id. at 19.
The appellant filed a Board appeal challenging OPM’s reconsideration
decision on May 26, 2021. IAF, Tab 1. The administrative judge informed the
appellant that her appeal appeared untimely filed and informed her of how to
establish that she timely filed a Board appeal or show good cause for the delay in
filing. IAF, Tab 3 at 1-4. The appellant did not respond to this order.
The administrative judge subsequently issued an initial decision dismissing
the appeal as untimely filed without good cause shown. IAF, Tab 6, Initial2
Decision (ID) at 1-2. Specifically, the administrative judge found that the appeal
was filed roughly 9 months after the filing deadline, and the appellant failed to
explain why her appeal was filed late. ID at 4. The administrative judge
additionally considered the evidence suggesting that the appellant’s attorney may
have neglected to follow up on the matter, but she ultimately found that the
appellant was responsible for her attorney’s failures. Id.
The appellant has filed a petition for review, and the agency has responded.
Petition for Review (PFR) File, Tab 1, Tab 3. The appellant argues that her
attorney was negligent in handling her case and asserts that he was subsequently
suspended from the practice of law for, among other things, neglecting client
matters. PFR File, Tab 1 at 3-4, 8; IAF, Tab 5 at 8, 10-14. She asserts that her
then-attorney did not inform her that an appeal was never filed until after the
deadline to file had passed and claims that the matter was out of her control. PFR
File, Tab 1 at 3-4. She attaches various documents on review purporting to show
that her prior attorney was suspended from practicing law for 1 year beginning
December 23, 2020, and that, in January 2021, she sought new representation to
ascertain the status of her case with OPM after discovering that no appeal was
filed. Id. at 6-9.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge found that the appellant’s Board appeal was
untimely filed by roughly 9 months. ID at 4. The parties do not challenge this
finding on review, and we see no reason to disturb it. See 5 C.F.R. § 1201.22(b)
(1) (setting forth the deadline to file an appeal of an agency’s decision).
The Board may waive its regulatory filing time limit for good cause shown.
Marcantel v. Department of Energy , 121 M.S.P.R. 330, ¶ 10 (2014); 5 C.F.R.
§ 1201.22(c). To establish good cause for the untimely filing of an appeal, a
party must show that she exercised due diligence or ordinary prudence under the
particular circumstances of the case. Marcantel, 121 M.S.P.R. 330, ¶ 10. To3
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 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 causal relationship to her inability to timely file her
appeal. Id. The Board generally holds that, when, as here, an appellant fails to
follow OPM’s instructions, it does not constitute good cause for any ensuing
delay. Maggard v. Office of Personnel Management , 102 M.S.P.R. 75,
¶ 9 (2006).
The appellant argues that her attorney’s negligence led to her untimely
filing and thus the matter was out of her control.2 PFR File, Tab 1 at 4-5. The
Board has repeatedly held that an appellant is responsible for the action or
inaction of her chosen representative and that delays caused by a representative
will not constitute good cause to excuse a filing delay. Strong v. Department of
the Navy, 86 M.S.P.R. 243, ¶ 7 (2000). The Board has recognized a limited
exception to this rule for cases when an appellant proves that she actively
monitored the progress of her appeal but that her diligent efforts to prosecute her
case were thwarted by the deception and negligence of her representative. Id.;
see Dunbar v. Department of the Navy , 43 M.S.P.R. 640, 643 -45 (1990).
However, the Board has found that, even when an appellant’s representative
misleads her as to the status of a filing, the appellant has a personal duty to
2 In support of her arguments, the appellant attaches new evidence and argument for the
first time on review. PFR File, Tab 1 at 4-9. The Board generally will not consider an
argument raised for the first time in a petition for review absent a showing that it is
based on new and material evidence not previously available despite the party’s due
diligence. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016); 5 C.F.R.
§ 1201.115(d). Indeed, the Board will not consider evidence submitted for the first time
on review when it previously was available but a party elected to not submit it to the
administrative judge. Fox v. U.S. Postal Service , 81 M.S.P.R. 522, ¶¶ 4-5 (1999). The
appellant’s new evidence here predates the filing of her appeal and thus is not new.
PFR File, Tab 1 at 6-9. Nonetheless, even considering the new evidence and argument
on review, the appellant has failed to establish good cause for her untimely appeal.4
monitor the progress of her appeal at all times and not leave the matter entirely to
her attorney. Miller v. Department of Homeland Security , 110 M.S.P.R. 258,
¶ 12 (2008).
According to the appellant, she did not learn that her prior attorney failed
to file an appeal of OPM’s reconsideration decision until after the deadline to file
had passed. PFR File, Tab 1 at 3. On or about January 4, 2021, her then-attorney
informed her that he had been suspended from practicing law and thus could no
longer represent her. Id. at 6. Shortly thereafter, the appellant, through a new
attorney, contacted OPM to inquire about the status of her case. IAF, Tab 5 at 8.
Therein, the appellant asserted that her last communication from OPM was the
acknowledgment of receipt of her request for reconsideration and that she was
unaware of any reconsideration decision. Id. However, the appellant personally
signed for receipt of OPM’s reconsideration decision via certified mail on
July 23, 2020. Id. at 20. Even if she did not read the decision and merely
forwarded it to her prior attorney, the record does not reflect that she took any
further steps to monitor the progress of her case for several months following her
receipt of OPM’s reconsideration decision. Compare Strong , 86 M.S.P.R. 243,
¶ 11 (finding no good cause when the appellant only contacted his attorney once
before the filing deadline and did not inquire about the status and progress of his
appeal), with Sullivan v. Office of Personnel Management , 88 M.S.P.R. 499, ¶ 9
(2001) (finding that the appellant established good cause when he repeatedly
contacted his attorney by both facsimile and telephone, and even physically drove
to the attorney’s office, in attempts to inquire about the progress of the appeal).
Moreover, the appellant does not assert that her prior attorney actively misled her
into believing that an appeal had been filed. See Sullivan, 88 M.S.P.R. 499, ¶ 9
(finding that, in addition to the appellant’s diligent efforts to monitor his appeal,
he was misled and erroneously reassured by his attorney that the appeal would be
timely filed); Dunbar, 43 M.S.P.R. at 644 (finding that the appellant’s attorney’s
misleading information thwarted his otherwise diligent efforts to file a timely5
appeal). On the contrary, the appellant here took no steps to monitor her appeal
from the July 2020 receipt of OPM’s reconsideration decision to the January 2021
notice that her attorney had been suspended.
Accordingly, we find that the appellant has not made a diligent effort to
monitor the progress of her appeal, and she has not established sufficient grounds
to overcome the rule that she is responsible for the mistakes of her chosen
representative. Strong, 86 M.S.P.R. 243, ¶ 11. Despite her pro se status at the
time of filing her Board appeal, the appellant’s roughly 9-month delay in filing is
significant. See Johnson v. U.S. Postal Service , 98 M.S.P.R. 695, ¶ 8 (2005)
(finding no good cause for an 8-month delay in filing despite the appellant’s pro
se status). Thus, we find that the appellant has failed to establish good cause for
the delay in filing.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain7
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 8
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Huntley_Trisha_S_NY-844E-21-0105-I-1_Final_Order.pdf | 2024-10-25 | TRISHA SHAYNE HUNTLEY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-844E-21-0105-I-1, October 25, 2024 | NY-844E-21-0105-I-1 | NP |
396 | https://www.mspb.gov/decisions/nonprecedential/Cohn_Matthew_L_DC-1221-21-0005-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW LOUIS COHN,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-1221-21-0005-W-1
DATE: October 25, 2024
THIS ORDER IS NONPRECEDENTIAL1
Matthew Louis Cohn , Clinton, Maryland, pro se.
Stephanie Sneed , Esquire, Bethesda, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal as untimely filed. For the
reasons discussed below, we GRANT the appellant’s petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
VACATE the initial decision, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2The agency terminated the appellant from his position as a GS-13 Process
Improvement Specialist during his probationary period. Initial Appeal File (IAF),
Tab 1 at 7-9. He then filed a complaint with the Office of Special Counsel (OSC)
asserting that his termination was taken in reprisal for his protected
whistleblowing disclosures. Id. at 11. In letters dated July 27, 2020, OSC
informed the appellant that it had closed its investigation into his allegations and
that he could file a request for corrective action with the Board within 65 days
after the date of the letter. IAF, Tab 1 at 11-12, Tab 6 at 10-11.
¶3On October 1, 2020, the appellant filed an IRA appeal with the Board. IAF,
Tab 1 at 3-5. The administrative judge issued an order informing the appellant
that, pursuant to the time limits set forth in 5 U.S.C. § 1214(a)(3) and 5 C.F.R. §
1209.5(a), his appeal had to be filed by September 30, 2020, sixty -five days after
July 27, 2020, and thus, his appeal was one day late. IAF, Tab 3 at 3. She further
apprised the appellant of the legal standard for applying the doctrine of equitable
tolling to extend the filing deadline, notified him of his burden regarding
timeliness and the application of equitable tolling, and ordered him to file
evidence and/or argument on those issues. Id. at 3-4, 10. The appellant
responded that his appeal was filed 1 day late due to a “documented system
malfunction.” IAF, Tab 5 at 3. He stated that he was unable to upload documents
to the Board’s e-Appeal system on September 30, 2020. Id. He submitted a
ticket for technical (tech) support, to which he received a response the following
day. Id. at 3-4. He was then able to upload documents and, after doing so, filed
his appeal. Id. at 3. The agency moved to dismiss the appeal as untimely filed.
IAF, Tab 8 at 4-6.2
¶4Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the IRA appeal as untimely filed. IAF, Tab 9, Initial
Decision (ID) at 1, 6. She found that the appeal was filed 1 day late and,
although the appellant raised a claim of technical difficulties, there is no evidence
that the e-Appeal system malfunctioned or that there was a system outage.
ID at 4. She considered that the Board has excused delays in filing when the
appellant reasonably, but erroneously, believed he had submitted his appeal, but
she observed that was not the situation here. ID at 5. Instead, the appellant
“waited until literally the 11th hour” to file his appeal; he knew he had not
submitted his appeal when he logged off on the night of September 30, 2020; and
there is no evidence that he attempted to file his appeal through some other means
such as mail or fax. ID at 5. Thus, she found that the appellant’s last-minute
decision to file his appeal was garden-variety negligence and not a basis for
finding equitable tolling applicable. ID at 5-6.
¶5The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He asserts, as he did below, that he tried to file his appeal
approximately 30 minutes prior to the deadline and that difficulties encountered
with the Board’s e-Appeal system prevented him from doing so. Id. at 4. The
agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6An appellant may file an IRA appeal with the Board once OSC closes its
investigation into his complaint and no more than 60 days have elapsed since
notification of the closure was provided to him. 5 U.S.C. § 1214(a)(3)(A)(i)-(ii);
see Heimberger v. Department of Commerce , 121 M.S.P.R. 10, ¶ 6 (2014). Under
the Board’s regulations implementing that statutory time limit, an IRA appeal
must be filed no later than 65 days after the date that OSC issues its close-out
letter, or, if the letter is received more than 5 days after its issuance, within
60 days of the date of receipt. 5 C.F.R. § 1209.5(a)(1); see Heimberger ,3
121 M.S.P.R. 10, ¶ 6. The appellant bears the burden of proving by preponderant
evidence that he timely filed his appeal. 5 C.F.R. § 1201.57(c)(2); see Pacilli v.
Department of Veterans Affairs , 113 M.S.P.R. 526, ¶ 8, aff’d per curiam , 404 F.
App’x 466 (Fed. Cir. 2010).
¶7By letter dated July 27, 2020, OSC notified the appellant that it had
terminated its inquiry into his allegations. IAF, Tab 1 at 11. The appellant has
not alleged that he received the July 27, 2020 letter more than 5 days after its
issuance, thus, the appellant had 65 days after OSC’s issuance of its letter, or by
September 30, 2020, to file his IRA appeal. IAF, Tab 1 at 11; see 5 C.F.R.
§§ 1201.23, 1209.5(a)(1). The appellant filed his appeal on October 1, 2020. We
agree with the administrative judge that the appellant’s IRA appeal was untimely
filed by 1 day. ID at 4.
¶8Notwithstanding the implementing provisions of 5 C.F.R. § 1209.5(a), the
filing period for an IRA appeal is statutory, not regulatory. Heimberger,
121 M.S.P.R. 10, ¶ 9. As such, the statutory time limit for filing an IRA appeal
cannot be waived for good cause shown because there is no statutory mechanism
for doing so. Id. However, the filing deadline might be subject to equitable
tolling, under which the filing period is suspended for equitable reasons, such as
when the complainant has been induced or tricked by his adversary’s misconduct
into allowing the deadline to pass. Id., ¶ 10. Equitable tolling is a rare remedy
that is to be applied in unusual circumstances and generally requires a showing
that the litigant has been pursuing his rights diligently and some extraordinary
circumstances stood in his way. Id.
¶9On review, the appellant asserts that he was unable to submit his appeal on
September 30, 2020 because the e-Appeal system froze when he attempted to
upload a document and required a reset, and his tech support ticket was not
resolved until the next day.2 PFR File, Tab 1 at 4; IAF, Tab 5 at 3. Under limited
2 The appellant also asserts that he waited until the last day to file in the hopes of
acquiring additional information from a pending Office of Inspector General
investigation related to his whistleblowing. PFR File, Tab 1 at 4. Although we are not4
circumstances, the Board will excuse delays in filing caused by difficulties
encountered with the Board’s e-Appeal system. Palermo v. Department of the
Navy, 120 M.S.P.R. 694, ¶ 5 (2014). For example, the Board found good cause
for a 1-day delay in filing when an appellant’s representative was unable to
timely file because the Board’s e-Appeal system “timed out,” and the Board’s
records reflected a high incidence of users reporting problems with the e-Appeal
system during the same period. Boykin v. U.S. Postal Service , 104 M.S.P.R. 460,
¶¶ 3, 6-7 (2007).
¶10We find that the appellant’s inability to timely file was caused by
circumstances beyond his control. In concluding that the appellant was not
entitled to equitable tolling, the administrative judge did not credit the appellant’s
statement that he was unable to submit his appeal due to a problem with the
e-Appeal system. ID at 4. A declaration subscribed as true under penalty of
perjury, if uncontested, proves the facts it asserts. Tram v. U.S. Postal Service ,
120 M.S.P.R. 208, ¶ 8 (2013). The appellant declared under penalty of perjury
that he attempted to timely file his appeal but he was unable to do so because the
“submit” button was not available. IAF, Tab 5 at 3. We credit his statement.
¶11While the agency questioned whether the appellant in fact submitted a tech
support ticket on September 30, 2020, and does so again on review, the basis of
its argument is that the appellant’s assertions lack corroboration. IAF, Tab 8 at 5-
6; PFR File, Tab 3 at 5-6. Corroboration is a factor in weighing the appellant’s
statement, but it is not required. See Elder v. Department of the Air Force , 124
M.S.P.R. 12, ¶ 22 (2016) (listing the factors to be considered in determining the
weight to give hearsay statements). In any event, the appellant submitted an
email from the Board dated October 1, 2020, responding to his tech support
persuaded that equitable tolling should be applied for that reason, we have determined
that the appellant alleged circumstances warranting equitable tolling in this instance.
See Heimberger, 121 M.S.P.R. 10, ¶ 11 (stating that the discovery of new evidence does
not generally constitute the type of extraordinary circumstance that warrants tolling a
statutory deadline, especially when there is no indication that the evidence was
previously unavailable because the agency improperly concealed it). 5
ticket. IAF, Tab 5 at 4. We find that the ticket is corroborating evidence of his
timeline of events. Because the appellant made diligent efforts to pursue his
rights, as evidenced by his attempt to timely file his appeal, his promptness in
filing a tech support ticket, and his promptness in filing his appeal once his tech
support ticket was addressed, we find that the appellant has shown a sufficient
basis to toll the filing deadline.
¶12Therefore, we remand this appeal to the regional office for further
adjudication. On remand, the administrative judge should make findings on the
issue of jurisdiction. If the administrative judge determines that the appellant
established Board 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
v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
ORDER
¶13For the reasons discussed above, we vacate the initial decision and remand
this case to the Washington Regional Office for further adjudication in
accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Cohn_Matthew_L_DC-1221-21-0005-W-1_Remand_Order.pdf | 2024-10-25 | MATTHEW LOUIS COHN v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-21-0005-W-1, October 25, 2024 | DC-1221-21-0005-W-1 | NP |
397 | https://www.mspb.gov/decisions/nonprecedential/Williams_Jason_M_DC-0752-18-0620-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JASON M. WILLIAMS SR.,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-18-0620-I-1
DATE: October 24, 2024
THIS ORDER IS NONPRECEDENTIAL1
Neil Curtis Bonney , Esquire, Virginia Beach, Virginia, for the
appellant.
Edith L. Moore McGee , Esquire, Lorna Jacqueline Jerome , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s removal for failure to maintain a regular work schedule .
For the reasons discussed below, we GRANT the appellant’s petition for review.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
We REVERSE IN PART and AFFIRM IN PART the initial decision. The
appellant’s removal is NOT SUSTAINED. We REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2The following facts are undisputed. The appellant was employed by the
agency as a Supervisory Accounting Technician. Initial Appeal File (IAF),
Tab 10 at 49. Beginning in March 2017, the appellant began taking significant
amounts of leave due to his symptoms from Meniere’s disease. IAF, Tab 5
at 13-38, Tab 6 at 4-10, 25. In October 2017, the appellant submitted to the
agency a letter from his physician explaining the appellant’s condition and
recommending accommodations, including morning telework due to side effects
of medication, through February 2018. IAF, Tab 6 at 25. The agency granted the
appellant’s reasonable accommodation request. Id. at 23. Nonetheless, the
appellant continued to take frequent leave. IAF, Tab 5 at 35-38, Tab 6 at 4-10.
¶3On January 23, 2018, the agency warned the appellant that he needed to
return to duty on a regular full-time basis and that he could be removed if his
attendance did not improve. IAF, Tab 16 at 34. During that meeting, the
appellant informed his supervisor that he had a “30-day plan” to return to a
regular work schedule. Id. Two days later, the appellant emailed his supervisor
with details of this 30-day plan, indicating that he would return to a regular work
schedule the week of February 19, 2018, and that he would no longer need to
work under a reasonable accommodation.2 Id. at 18.
¶4The appellant returned to a regular work schedule on February 19, 2018.
IAF, Tab 16 at 11. Shortly thereafter, however, he began to suffer from
gastrointestinal issues, which resulted in a visit to the emergency room on
April 17, 2018. IAF, Tab 16 at 51-53. Between the appellant’s February 19,
2 On March 14, 2018, the appellant’s physician wrote a letter confirming that the
appellant was cleared to perform his essential duties without a reasonable
accommodation plan. IAF, Tab 6 at 12.2
2018 return to a regular schedule and April 24, 2018, the appellant worked 48.5
hours out of an available 240 hours. IAF, Tab 5 at 8, Tab 6 at 9-10, Tab 16 at 41-
42.
¶5As a result, on April 24, 2018, the agency proposed the appellant’s removal
for failure to maintain a regular work schedule. IAF, Tab 5 at 6-9. Specifically,
it alleged that the appellant’s attendance record between March 19, 2017, and
March 25, 2018, reflected that he was absent for 653.5 hours out of an available
2,080 work hours.3 Id. at 6. The proposal notice stated that “removal is the only
effective course of action for the efficiency of the service, since [the appellant] is
unable to maintain a regular work schedule due to situations beyond [his]
control.” Id. at 8. In his written reply to the proposal notice, the appellant
explained that, following a medical appointment on April 26, 2018, his symptoms
related to his gastrointestinal issues were corrected and resolved, and that, in the
period between his proposed removal and reply, he had been consistently
performing his duties as a supervisory accounting technician. IAF, Tab 4
at 24-25.
¶6On June 7, 2018, the deciding official issued a decision on the notice of
proposed removal. IAF, Tab 4 at 16-21. In addition to discussing the relevant
Douglas4 factors, he considered the appellant’s argument that, following the
issuance of the notice of proposed removal, his medical conditions improved and
his attendance returned to normal, but ultimately found that sequence of events
“concerning,” stating that he doubted “the authenticity of the reason given” for
3 Of the 653.5 hours, the appellant had taken 122 hours of annual leave, 218.5 hours of
leave without pay, and 313 hours from the voluntary leave transfer program. IAF,
Tab 5 at 6. The proposal notice specifically stated that the 653.5 hours did not include
absences for medical conditions covered by his approved Family Medical Leave Act
(FMLA) requests. Id.; see McCauley v. Department of the Interior , 116 M.S.P.R. 484,
¶¶ 10-11 (2011) (explaining that an agency may not rely on FMLA-protected leave
when charging an employee with excessive absences).
4 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.3
the appellant’s return. Id. at 17-18. As such, he found that removal was the
“most appropriate penalty and is taken for the efficiency of the service.” Id.
at 18. The appellant’s removal was effective June 8, 2018. Id.
¶7The appellant appealed his removal to the Board arguing that the removal
did not promote the efficiency of the service, that the deciding official failed to
consider mitigating factors, and that the agency discriminated against him based
on his disability. IAF, Tab 1 at 6, Tab 17 at 4.
¶8After a hearing, the administrative judge issued an initial decision. IAF,
Tab 20, Initial Decision (ID). She found that the agency established the required
elements to prove its charge of failure to maintain a regular schedule by
preponderant evidence. ID at 3-13. Regarding the appellant’s affirmative
defense, she found that the appellant failed to show that his conditions limited
any major life activity, and that he, therefore, failed to establish his disability
discrimination claim. ID at 13-15. She then concluded that the agency proved
that there was a nexus between the appellant’s removal and the efficiency of the
service, and that the penalty of removal was reasonable. ID at 16-20.
¶9The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. He reiterates his arguments from below that his
situation presented significant mitigating circumstances in that his absences were
due to medical problems, that the removal action does not promote the efficiency
of the service, that the deciding official did not properly consider the Douglas
factors, and that he was discriminated against due to a disability. Id. at 6-11. The
agency did not respond to the appellant’s petition for review.
ANALYSIS
The agency proved its charge.
¶10The agency charged the appellant with failure to maintain a regular
schedule, noting that, between March 19, 2017, and March 25, 2018, he was
absent for 653.5 hours out of an available 2080 work hours. IAF, Tab 5 at 6. The4
administrative judge appropriately construed that charge as one of excessive
absences. ID at 6; see Fox v. Department of the Army , 120 M.S.P.R. 529, ¶ 31
(2014) (construing a charge of inability to work a regular schedule as a charge of
excessive absences). Generally, an agency may not take an adverse action based
on an employee’s use of approved leave. Williams v. Department of Commerce ,
2024 MSPB 8, ¶ 5. However, as appropriately explained by the administrative
judge, an exception exists when an agency can prove that (1) the employee was
absent for compelling reasons beyond his control so that agency approval or
disapproval was immaterial because the employee could not be on the job; (2) the
absences continued beyond a reasonable time, and the agency warned the
employee that an adverse action could be taken unless the employee became
available for duty on a regular full-time or part-time basis; and (3) the agency
showed that the position needed to be filled by an employee available for duty on
a regular, full-time or part-time basis. Id., ¶ 5; Fox, 120 M.S.P.R. 529, ¶ 31;
Cook v. Department of the Army , 18 M.S.P.R. 610, 611-12 (1984).
¶11Regarding the first criterion, the administrative judge acknowledged that the
parties stipulated that the appellant suffered from Meniere’s disease and that he
was absent for reasons beyond his control. ID at 10; IAF, Tab 18 at 2. Regarding
the second criterion, the administrative judge explained that 653.5 hours of
non-Family and Medical Leave Act (FMLA)-protected leave was the equivalent
of 81 days of leave and that such an amount of time was longer than reasonable.
ID at 10. She further credited the appellant’s supervisor’s testimony that she met
with the appellant on January 23, 2028, along with a human resources
representative, to discuss the impact of his absences and to warn him that the
agency intended to issue a “Notice of Intent” to terminate his employment based
on his inability to maintain a work schedule. ID at 12; IAF, Tab 6 at 18, Tab 16
at 34, Tab 19, Hearing Compact Disc, Tab 19-1 (testimony of the appellant’s
supervisor). Regarding the criterion concerning whether the agency showed that
the position needed to be filled by an employee on a regular basis, the5
administrative judge relied on the appellant’s supervisor’s testimony that the
appellant’s absences impacted the team’s operations, particularly because the
appellant was a supervisor, so another employee had to review his subordinates’
work. ID at 9; IAF, Tab 19-1 (testimony of the appellant’s supervisor). After a
thorough discussion of the evidence in support of the agency’s charge, the
administrative judge found that the agency proved the charge of failure to
maintain a regular schedule by preponderant evidence. ID at 6-13.
¶12The appellant has not challenged this finding on review. See 5 C.F.R.
§ 1201.115 (explaining that the Board normally will consider only issues raised in
a timely filed petition or cross petition for review). Ultimately, we discern no
basis to disturb it. We note, however, that in Williams, the Board found that, to
prove a charge of excessive approved absences, an agency cannot rely on
absences that predate its warning to the appellant regarding his attendance.
2024 MSPB 8, ¶ 6. Here, the agency warned the appellant that his absences were
excessive and that it intended to remove him on January 23, 2018. IAF, Tab 6
at 18, Tab 16 at 34. Thus, only absences after January 23, 2018, can be relied
upon in support of the removal action. In any event, the proposal notice explains
that, between February 19, 2018, and the date of the notice, the appellant only
worked 48.5 hours of 240 hours. IAF, Tab 5 at 8, Tab 6 at 9-10, Tab 16 at 41-42.
Further, the deciding official stated that, following the appellant’s return to a
regular schedule in February 2018, he began taking sporadic leave again just
1 week later and continued to do so until early March, when he remained absent
and in a leave without pay (LWOP) status. IAF, Tab 4 at 17. Accordingly, we
find that the agency still meets its burden of showing that the appellant’s absences
continued beyond a reasonable time even relying only on absences postdating the
January 23, 2018 warning. See Williams, 2024 MSPB 8, ¶¶ 5-6.
¶13Based on our review of the record, we find that the administrative judge’s
analysis of the charge with respect to the other two factors is sound, and we
discern no basis to disturb her findings. See Crosby v. U.S. Postal Service ,6
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 agency did not prove nexus between the charge and the efficiency of
the service.
¶14In addition to proving the charge, the agency must also establish the
existence of a nexus between the sustained misconduct and the efficiency of the
service and that the penalty of removal is reasonable. 5 U.S.C. § 7513(a);
Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 18 (2013); Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 306-07 (1981). Regarding nexus, the
requirement to show that an adverse action promotes the efficiency of the service
means that there must be a clear and direct relationship between the articulated
grounds for an adverse action and either the employee’s ability to accomplish his
or her duties satisfactorily or some other legitimate Government interest. Merritt
v. Department of Justice , 6 M.S.P.R. 595, 596 (1981), modified on other grounds
by Kruger v. Department of Justice , 32 M.S.P.R. 71, 75 n.2 (1987). It is well
settled that the “efficiency of the service” standard of 5 U.S.C. § 7513(a) is the
“ultimate criterion” for determining both whether any discipline is warranted and
whether a particular penalty may be sustained. Owens v. Department of
Homeland Security , 2023 MSPB 7, ¶ 15; Wren v. Department of the Army ,
121 M.S.P.R. 28, ¶ 7 (2014); Morgan v. U.S. Postal Service , 48 M.S.P.R. 607,
611 (1991).
¶15In the initial decision, the administrative judge found that the agency
established the nexus requirement based on the burden placed on an agency when
faced with the appellant’s unscheduled absences, but she did not address the
appellant’s recovery following the proposal notice. ID at 16. On review, the
appellant maintains his position that his removal does not promote the efficiency
of the service because his medical issues were resolved when the agency effected7
his removal and the agency otherwise stipulated that he was “not a disciplinary
problem.” PFR File, Tab 1 at 7-9; IAF, Tab 18 at 2. As discussed below, we
agree with the appellant and find that his removal for a failure to maintain a
regular work schedule, which was caused by medical conditions out of his control
that were resolved at the time of his removal, does not promote the efficiency of
the service.
¶16The charge at issue here—inability to maintain a regular work schedule—
bears similarities to a removal for a physical inability to perform. Both types of
cases generally involve serious long-term health conditions resulting in lengthy
absences attendant to those conditions. Additionally, both types of cases concern
an agency’s need to replace an employee who, through no fault of his own, is no
longer able to provide useful and efficient service. When an appellant who has
been removed for physical inability to perform presents evidence of complete
recovery from the medical condition that resulted in his removal before the
administrative judge has issued an initial decision in his appeal, the removal
action does not promote the efficiency of the service. See Owens, 2023 MSPB 7,
¶ 15; Johnson v. U.S. Postal Service , 120 M.S.P.R. 87, ¶ 8 (2013); Morgan,
48 M.S.P.R. at 611-12; Street v. Department of the Army , 23 M.S.P.R. 335,
340-43 (1984). Similarly, we find that it does not promote the efficiency of the
service to remove an employee for excessive absence when he has fully recovered
from the medical condition(s) that caused those absences and resumed regular
attendance before his removal has even been effected.
¶17 Here, along with his reply to the notice of proposed removal, the appellant
submitted to the agency a March 14, 2018 letter from his physician explaining
that he no longer experiences physical symptoms related to Meniere’s disease
because it has been appropriately treated and that his medical conditions “should
not impact his life activities on or off the job.” IAF, Tab 6 at 12. The appellant
also stated during his reply that his gastrointestinal issues had “resolved and have
been corrected” following medical intervention around the time the agency issued8
the proposal notice, and the record contains April 23, 2018 medical evidence
supporting this assertion. IAF, Tab 4 at 24-25, Tab 16 at 61-62. Thus, we find
that the appellant has shown that he was fully recovered from his medical
conditions prior to the June 7, 2018 agency decision.
¶18Further, although the Board has held that removal for a charge of excessive
absences promotes the efficiency of the service when there is “no foreseeable
end” to the absences, see, e.g., Williams, 2024 MSPB 8, ¶¶ 2, 18; Allen v.
Department of the Army , 76 M.S.P.R. 564, 570-71 (1997); Conte v. Department of
the Treasury, 10 M.S.P.R. 346, 348 (1982), the appellant’s medical evidence
following his recovery all indicated that he could perform the essential duties of
his position, that his medical conditions no longer affected his life activities on or
off the job, and that he could return to a normal work schedule. IAF, Tab 6 at 12,
Tab 16 at 62. Most importantly, it is undisputed that, upon resolution of the
appellant’s medical issues, his attendance returned to normal. IAF, Tab 4 at 17,
24-25. In the final decision removing the appellant, the deciding official
dismissed the appellant’s resumption of regular attendance and ignored the
medical evidence showing that the appellant’s medical problems had been
resolved or otherwise brought under control. IAF, Tab 4 at 16-18.
¶19Because the evidence plainly demonstrates that the appellant’s irregular
schedule due to his medical conditions returned to normal following the
resolution of those medical conditions, and there is no indication that the
appellant would relapse, we find that the agency failed to prove that his removal
promotes the efficiency of the service. See Owens, 2023 MSPB 7, ¶ 15; Johnson,
120 M.S.P.R. 87, ¶ 8; Morgan, 48 M.S.P.R. at 611-12; Street, 23 M.S.P.R.
at 340-43. Therefore, we reverse the administrative judge’s finding to the
contrary and, accordingly, reverse the removal action.5
5 Because we reverse the agency’s action based on its failure to prove the removal
promotes the efficiency of the service, we need not address the penalty. 9
The appeal is remanded for further adjudication of the appellant’s disability
discrimination claim.
¶20Regarding the appellant’s disability discrimination defense, the Board
adjudicates claims of disability discrimination raised in connection with an
otherwise appealable action under the substantive standards of section 501 of the
Rehabilitation Act. Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶ 35. The Rehabilitation Act has incorporated the standards of the Americans
with Disabilities Act (ADA), as amended. Id. Therefore, we apply those
standards here to determine if there has been a Rehabilitation Act violation. Id.
In particular, the ADA provides that it is illegal for an employer to “discriminate
against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a);
Haas v. Department of Homeland Security , 2022 MSPB 36, ¶ 28. An employer is
also required to provide reasonable accommodation to an otherwise qualified
individual with a disability. 42 U.S.C. § 12112(b)(5); Haas, 2022 MSPB 36,
¶ 28. Thus, both a claim of disability discrimination based on an individual’s
status as disabled and a claim based on an agency’s failure to reasonably
accommodate that disability require that the individual be disabled within the
meaning of 42 U.S.C. § 12102(1) and 29 C.F.R. § 1630.2(g)(1) and that he be
“qualified,” meaning that he can perform the essential functions of the position
that he holds with or without reasonable accommodation. Haas, 2022 MSPB 36,
¶ 28.
¶21In her initial decision, the administrative judge found that the appellant
failed to prove his disparate treatment disability discrimination claim because he
failed to prove that he was disabled within the meaning of the statute. ID at 14.
We disagree. To prove that he has a disability, the appellant must show that he:
(1) has a physical or mental impairment that substantially limits one or more
major life activities; (2) has a record of such impairment; or (3) is regarded as
having such an impairment. 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(1). An
impairment is considered a disability if it substantially limits an individual’s10
ability to perform a major life activity as compared to most people in the general
population. 29 C.F.R. § 1630.2(j)(1)(ii). Major life activities include, but are not
limited to, caring for oneself, performing manual tasks, eating, lifting, bending,
concentrating, communicating, and working; major life activities also include the
operation of major bodily functions. 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(i)
(1). The term “substantially limits” is construed broadly in favor of expansive
coverage, to the maximum extent permitted under the ADA, and is not meant to
be a demanding standard. 29 C.F.R. § 1630.2(j)(1)(i).
¶22The administrative judge found that the appellant did not establish that he
was an individual with a disability because his diagnosis of Meniere’s disease was
not sufficient, by itself, to prove that he was disabled and he failed to otherwise
show that he was limited in any major life activity. ID at 14. However, the
parties have stipulated that the appellant’s numerous absences from work were
due to his medical condition, and the record contains an October 10, 2017 note
from the appellant’s physician explaining that the appellant’s symptoms often
rendered him unable to commute to work. IAF, Tab 6 at 25, Tab 18 at 2. It also
contains a January 25, 2018 email from the appellant to his supervisor explaining
that his symptoms are exacerbated by a lack of oxygen, which interferes with his
ability to sleep well, so much so that he underwent a sleep study. IAF, Tab 6 at
18. Thus, we find that the appellant was “substantially limited” in his ability to
work and sleep. His subsequent improvement and ability to manage his
symptoms do not change this conclusion, as Meniere’s disease is a permanent
condition. See 29 C.F.R. § 1630.2(j)(vi) (stating that the “determination of
whether an impairment substantially limits a major life activity shall be made
without regard to the ameliorative effects of mitigating measures”). Accordingly,
we find that the record supports a finding that the appellant’s Meniere’s disease
rendered him disabled within the meaning of 42 U.S.C. § 12102(2) and 29 C.F.R.
§ 1630.2(j)(1)(ii).11
¶23We also find that, at the time the deciding official issued the decision
removing the appellant, he was a “qualified” individual who could perform the
essential functions of his position with or without reasonable accommodation.
See Haas, 2022 MSPB 36, ¶ 28. Notably, in the time immediately preceding the
removal decision, the appellant’s absences were minimal, and there is no other
evidence showing that he was unable to perform the essential functions of his job.
Indeed, the record includes a March 14, 2018 letter from the appellant’s physician
explaining that the appellant was “cleared to perform his essential duties without
a need of a reasonable accommodations plan” and that he is “on medications that
are tolerated well and should not adversely affect his ability to perform the
essential functions” of his position. IAF, Tab 6 at 12. Regarding his
gastrointestinal issues, the appellant also submitted evidence that this condition
improved and that he was cleared to return to duty as normal. IAF, Tab 16
at 61-62. Accordingly, we find that the appellant has met the threshold
requirement of showing that he was a qualified individual with a disability. See
Haas, 2022 MSPB 36, ¶ 28.
¶24Because she found that the appellant did not meet the definition of
“disabled” for purposes of the Rehabilitation Act, the administrative judge did not
analyze the remainder of the appellant’s disparate treatment claim, i.e., whether
disability discrimination was at least a motivating factor in the appellant’s
removal. See Pridgen, 2022 MSPB 31, ¶ 40. In light of this, and in light of the
agency’s failure to establish a nexus between its charge and the efficiency of the
service, we find it appropriate to remand the appeal for further adjudication,
limited to the disability discrimination issue. On remand, the administrative
judge shall permit the parties to submit supplemental briefing on the matter.
ORDER
¶25Accordingly, the initial decision is REVERSED IN PART, and the case is
REMANDED for further adjudication.12
¶26Notwithstanding the remand proceedings on the appellant’s disability
discrimination claim, we ORDER the agency to cancel the appellant’s removal
and restore him retroactive to June 8, 2019. See Kerr v. National Endowment for
the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must accomplish this action
no later than 20 days after the date of this decision.
¶27We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶28We 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).
¶29No 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).
¶30For 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 decision13
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards
until notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the
employee in a job undertaken during the back pay period to replace federal
employment. Documentation includes W-2 or 1099 statements, payroll
documents/records, etc. Also, include record of any unemployment earning
statements, workers’ compensation, CSRS/FERS retirement annuity payments,
refunds of CSRS/FERS employee premiums, or severance pay received by the
employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | Williams_Jason_M_DC-0752-18-0620-I-1_Remand_Order.pdf | 2024-10-24 | JASON M. WILLIAMS SR. v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-18-0620-I-1, October 24, 2024 | DC-0752-18-0620-I-1 | NP |
398 | https://www.mspb.gov/decisions/nonprecedential/Vindiola_Rigoberto_M_SF-4324-19-0537-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RIGOBERTO M. VINDIOLA,
Appellant,
v.
DEPARTMENT OF STATE,
Agency.DOCKET NUMBER
SF-4324-19-0537-I-1
DATE: October 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tyler Buck and D.N. Brady , Esquire, San Diego, California,
for the appellant.
Anna Katherine Drake , Camille V’Estres , and Marianne Perciaccante ,
Washington, D.C., for the agency.
Gerard E. Riddick , Clarksburg, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
Chairman Harris issues a separate dissenting opinion.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his Uniformed Services Employment and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301-4335) (USERRA) appeal. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant asserts that his coworker’s “false and defamatory”
statements against him—namely, that he committed war crimes in Vietnam—were
made only because his coworker knew of his military service. Petition for
Review (PFR) File, Tab 1 at 7-8. He asserts that, because he was falsely accused
of being a “war criminal,” the agency initiated an “inquiry,” and he was
constructively terminated. Id. at 8. In addition, the appellant provides a number
of documents on review, including copies of the various initial decisions, his
declaration, a May 24, 2019 letter from the Department of Labor, and
correspondence from various agencies. Id. at 10-86. These documents are not
new evidence because they are included in the record below. Initial Appeal File
(IAF), Tab 5; see Meier v. Department of the Interior , 3 M.S.P.R. 247, 256
(1980).
Moreover, a different outcome is not warranted. We agree with the
administrative judge’s finding that the appellant failed to make a nonfrivolous2
allegation that any agency denial was due to his uniformed service. The
evaluation worksheet reflects that the agency terminated his candidacy for the
Visa Specialist position in 2003 because of several acts of misconduct, including
selling green cards and visas, making slanderous statements about other
employees, making statements about his battlefield service that were disruptive to
the work place, and asking another employee to obtain cocaine and marijuana for
him. IAF, Tab 1 at 10. Even if we focus on the portion of this worksheet that
referenced his service, i.e., that the appellant “made statements about his alleged
battlefield service in Vietnam that were disruptive to the workplace, because of
the alleged criminal nature of his actions,” id., such statements do not constitute a
nonfrivolous allegation of discrimination based on his uniformed service.
Significantly, the documentation reflects that it was the “disruptive” impact of the
appellant’s statements on the work place, and not his uniformed service, that was
the basis for the termination of his candidacy.2 For the reasons stated herein and
in the initial decision, the appellant has not made a nonfrivolous allegation of
jurisdiction under 38 U.S.C. § 4311(a), and Lubert v. U.S. Postal Service ,
2 Even if we considered the appellant’s assertion that the statements in question
involved war crimes, USERRA does not prohibit an employer from considering events
which occur during a period of service but do not constitute performance of military
duty, or from taking action against an employee for gratuitous misconduct in the course
of performing military duties. McMillan v. Department of Justice , 120 M.S.P.R. 1, ¶ 17
(2013).3
110 M.S.P.R. 430, ¶ 11 (2009).3 He is therefore not entitled to a hearing.4 Downs
v. Department of Veterans Affairs , 110 M.S.P.R. 139, ¶ 18 (2008).
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 The Board Chairman has filed a dissent to this Final Order, finding that the appellant’s
conclusory assertion constitutes a nonfrivolous allegation under USERRA. While we
certainly support the fulsome use of USERRA rights, we believe the standard
articulated by the Chairman would result in a jurisdictional bar that does not distinguish
between allegations relating to an appellant’s service obligations and those relating to
his descriptions of his service conduct. USERRA protects the former, not the latter.
4 Because the appellant resigned on April 19, 2003, the agency subsequently terminated
his candidacy on suitability grounds on May 30, 2003, and the Board has already
determined that it did not have jurisdiction over the appellant’s 2003 involuntary
resignation appeal, there is a question as to whether the agency denied him initial
employment, reemployment, retention, promotion, or any benefit of employment under
38 U.S.C. § 4311(a) after he resigned. We need not resolve this issue in light of our
decision to affirm the administrative judge’s decision to dismiss the appeal for lack of
jurisdiction.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain5
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 6
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8
DISSENTING OPINION OF CATHY A. HARRIS
in
Rigoberto M . Vindiola v. Department of State
MSPB Docket No. SF -4324 -19-0537 -I-1
As applicable here, to establish jurisdiction over a Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended at
38 U.S.C. §§ 4301 -4335) (USERRA) appeal, an appellant must make nonfrivolous
allegations that: (1) he performed duty or has an obligation to perform duty in a
uniformed service of the United States; (2) the agency denied him employment or
any benefit of employment; and (3) the denial was due to the performance of duty
or obligation to perform duty in the uniformed service. Lubert v. U.S. Postal
Service , 110 M.S.P.R. 430, ¶ 11 (2009).
In this case, the administrative judge dismissed the appeal for lack of
jurisdiction. Initial Appeal File (IAF), Tab 14, Initial Decision (ID). He found
that the appellant made a nonfrivolous allegation that he performed duty in the
uniformed service and was denied employment or a benefit of employment, but
failed to make a nonfrivolous allegation that any denial was due to his uniformed
service. ID at 11.
I would find that the appellant established jurisdiction over his appeal and
remand it for adjudication of the merits, including the appellant’s requested
hearing. IAF, Tab 1 at 3. The appellant alleged that his uniformed service was a
substantial or motivating factor in his loss of employment or a benefit of
employment because his coworker’s allegation that he had committed war crimes
2
in Vietnam formed the basis of the agency’s negative suitability determination and
eventually led to the appellant’s resignation.1 IAF, Tab 5 at 6 -7.
I agree with the administrative judge that the appellant’s allegation of
uniformed service discrimination is not particularly strong on its face, but this is not a sufficient basis to dismiss a USERRA appeal for lack of jurisdiction. The
relative weakness of an appellant’s factual allegations is not a basis for dismissing
his USERRA appeal for lack of jurisdiction; rather, if he fails to develop those
allegations, his claim should be denied on the merits. Beck v. Department of the
Navy , 120 M.S.P.R. 504, ¶ 8 (2014). The Board has found that even a conclusory
allegation of uniformed service discrimination is sufficient for jurisdictional
purposes. Wilson v. Department of the Army , 111 M.S.P.R. 54, ¶ 10 (2009)
(holding that the appellant’ s assertion that the agency terminated him because it
“didn ’t like the fact” of his service in the Army National Guard was sufficient to
constitute a nonfrivolous allegation of a USERRA violation).
Moreover, in finding that the appellant failed to establish jurisdiction over
his appeal, the administrative judge applied the factors set forth in Sheehan v.
Department of the Navy , 240 F.3d 1009, 1013 (Fed. Cir. 2001). ID at 8 -9.
However, Sheehan provides a legal framework for weighing and balancing
evidence. It applies to the merits phase of a USERRA appeal and not the
jurisdictional phase. 240 F.3d at 1013 -15; see McMillan v. Department of Justice ,
120 M.S.P.R. 1, ¶¶ 19-20 (2013).
For these reasons, I respectfully dissent.
/s/
Cathy A. Harris Chairman
1 It is unclear at this point whether the agency’s actions were based on the fact of the
appellant’s uniformed service, the character of that service, or the statements that the
appellant made in describing his service to his coworkers. | Vindiola_Rigoberto_M_SF-4324-19-0537-I-1_Final_Order.pdf | 2024-10-24 | RIGOBERTO M. VINDIOLA v. DEPARTMENT OF STATE, MSPB Docket No. SF-4324-19-0537-I-1, October 24, 2024 | SF-4324-19-0537-I-1 | NP |
399 | https://www.mspb.gov/decisions/nonprecedential/Andrews_Ravin_R_SF-0752-20-0627-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAVIN R. ANDREWS,
Appellant,
v.
GENERAL SERVICES
ADMINISTRATION,
Agency.DOCKET NUMBER
SF-0752-20-0627-I-1
DATE: October 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ravin R. Andrews , Tacoma, Washington, pro se.
Scott Gengras , Fort Worth, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary resignation appeal for lack of jurisdiction. On petition
for review, the appellant argues that the agency’s failure to engage in the
interactive process in good faith and grant her an effective accommodation forced
her to resign. Petition for Review File, Tab 1 at 6-7, 10 -11, 17-18, 57.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Andrews_Ravin_R_SF-0752-20-0627-I-1_Final_Order.pdf | 2024-10-24 | RAVIN R. ANDREWS v. GENERAL SERVICES ADMINISTRATION, MSPB Docket No. SF-0752-20-0627-I-1, October 24, 2024 | SF-0752-20-0627-I-1 | NP |
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