Split (1)

train · 4.54k rows

id int64 0 4.54k	url stringlengths 86 186	text stringlengths 92 116k	filename stringlengths 39 139	date stringclasses 661 values	case_caption stringlengths 74 130 ⌀	docket_number stringlengths 1 19 ⌀	rank stringclasses 1 value
3,100	https://www.mspb.gov/decisions/nonprecedential/MCDANIEL_STEVEN_CB_1208_23_0006_U_2_ORDER_ON_STAY_EXTENSION_REQUEST_2034593.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SPECIAL COUNSEL EX REL. STEVEN MCDAN IEL, Petitioner, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER CB-1208 -23-0006 -U-2 DATE: May 24, 2023 THIS STAY ORDER IS N ONPRECEDENTIAL1 Dustin Seth Frankel , Esquire, Washington, D.C., for the petitioner. Katherine W. Krems , Esquire, Washington, D.C., for the relator. Glen E. Woodworth , Esquire, Anchorage, Alaska, for the agency. Theodore M. Miller , Seattle, Washington, for the agency. BEFORE Cathy A. Harris, Vice Ch airman Raymond A. Limon, Member 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 ORDER ON STAY EXTENSION REQUEST ¶1 Pursuant to 5 U.S.C. § 1214 (b)(1)(B ), the Office of Special Counsel (OSC) requests a 60 -day extension of the previously granted stay of the probationary termination of Mr. McDaniel by the Department of Veterans Affairs (agency) while OSC completes its investigation and legal review of the matter and determines whether to seek corrective action. For the reasons discussed below, OSC’s request is GRANTED. BACKGROUND ¶2 On April 6, 2023, OSC filed a 45 -day initial stay request of the probationary termination of Mr. McDaniel based on alleged misconduct. Special Counsel ex rel. Steven McDaniel v. Department of Veterans Affairs , MSPB Docket No. CB -1208 -23-0006 -U-1, Stay Request File, Tab 1. In its initial stay request, OSC argued that it had reasonable grounds to believe that the agency’s action was in retaliation for Mr. McDaniel’s protected ac tivity under 5 U.S.C. § 2302 (b)(8) and (b)(9) (C). Id. On April 10, 2023, OSC’s initial stay request was granted through and including May 24, 2023. Special Counsel ex rel. Steven McDaniel v. Department of Veterans Affairs , MSPB Docket No. CB -1208 -23- 0006 -U-1, Order on Stay Request, ¶¶ 1, 10 (Apr. 10, 2023 ). ¶3 On May 9, 2023, OSC filed a timely request to extend the stay for an additional 60 days. Special Counsel ex rel. Steven McDaniel v. Departme nt of Veterans Affairs , MSPB Docket No. CB -1208 -23-0006 -U-2, Stay Request File (U-2 SRF), Tab 1. The agency filed a response to OSC’s extension request, explaining, among other things, that it does not oppose OSC’s request but reserves the right to commen t and oppose future requests.2 U-2 SRF, Tab 2 at 4-5. 2 The agency’s response was filed 1 day after the May 16, 2023 deadline . However, because we are granting OSC’s request and the agency is not objecting to an extension, we do not reach the timeliness issue. 3 ANALYSIS ¶4 A stay granted pursuant to 5 U.S.C. § 1214 (b)(1) is issued to maintain the status quo ante while OSC and the agency involved resolve the disputed matter. Special Counsel v. Department of Transportation , 74 M.S.P.R. 155, 157 (1997). The purpose of the stay is to minimize the consequences of an alleged prohibited personnel practice. Id. In evaluating a request for an extension of a stay, the Board will review the record in the light most favorable to OSC and will grant a stay extension request if OSC’s prohibited personnel practice claim is not clearly unreasonable. Id. at 158. The Board may grant the extension for any period that it considers appropriate. 5 U.S.C. § 1214 (b)(1)(B); Special Counsel ex rel. Waddell v. Department of Justice , 105 M.S.P.R. 208, ¶ 3 (2007). ¶5 In its stay extension request, OSC asserts that it continues to have reasonable grounds to believe that Mr. McDaniel’s probationary termination constitutes a prohibited personnel practice pursuant to 5 U.S.C. §§ 2302 (b)(8) and (b)(9)(C), and it states that its investigation is ongoing. U -2 SRF, Tab 1 at 7 -8. OSC explains the actions it has taken thus far, to include, among other things, serving the agency with a request for information, which the agency has partially responded to , conducting seven witness interviews, and serving the agency with a supplemental request for information based on those interviews . Id. at 5. OSC requests this extension to allow the agency to produce the requested information and for OSC to conduct additional necessary witness interviews, review and assess the full evidentiary record, and determine whether further action is warranted . Id. at 5-8. ¶6 Viewing the record in the light most favorabl e to OSC, and considering the fact that the evidentiary record supporting OSC’s initial stay request does not appear to have changed materially since the initial stay was granted, an extension of the stay is not clearly unreasonable to allow OSC time to co ntinue its investigation, attempt a resolution of this matter , and, if necessary, pursue 4 corrective action before the Board. Special Counsel v. Small Business Administration , 73 M.S.P.R. 12, 13-14 (1997). ¶7 Finally, a separate determination must be made on the length of a requested stay. Waddell , 105 M.S.P.R. 208, ¶ 5. It is the intent of Congress that stays not be extended for prolonged periods of time. Special Counsel v. Department of the Treasury , 71 M.S.P.R. 419, 421 (1996). Moreover the Board is obligated to press OSC to present corrective action cases in a timely manner. Id. Nevertheless, this is OSC’s first extension request in this matter, and the agency does not oppose the request. U-2 SRF, Tab 2. Accordingly, in light of these factors, we find that a 60-day extension of the stay is warranted, and we therefore grant OSC ’s request. ORDER ¶8 Pursuant to 5 U.S.C. § 1214 (b)(1)(B), a 60 -day extension of the stay is hereby GRANTED, and it is ORDERED as follows : (1) The stay issued on April 10, 2023, is extended through and including July 23 , 2023 , on the terms and conditions set forth in that Order; (2) The agency shall not effect any changes in Mr. McDaniel’s duties or responsibilit ies that are inconsistent with his salary or grade level, or impose upon him any requirement whic h 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 th e agency, together with any further evidentiary support, on or before July 7, 2023 ; and (5) Any comments on such a request that the agency wants the Board to consider pursuant to 5 U.S.C. § 1214 (b)(1)( C) and 5 C.F.R. 5 § 1201.136 (b) must be received by the Clerk of the Board on or before July 14, 2023 . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MCDANIEL_STEVEN_CB_1208_23_0006_U_2_ORDER_ON_STAY_EXTENSION_REQUEST_2034593.pdf	2023-05-24	null	CB-1208	NP
3,101	https://www.mspb.gov/decisions/nonprecedential/MALONEY_PEGGY_A_CB_1205_21_0005_U_1_FINAL_ORDER_2034621.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD PEGGY A. MALONEY, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Agency, and OFFICE OF ADMINISTRA TION, EXECUTIVE OFFICE OF THE PRESIDENT , Agency. DOCKET NUMBER CB-1205 -21-0005 -U-1 DATE: May 24, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Peggy A. Maloney , Greenport, New York , pro se. Nadia K. Pluta , Esquire, Washington, D.C., for the Office of Personnel Management . Raheemah Abdulaleem and John Kevin Fellin , Washington, D.C., for the Office of Admin istration, Executive Office of the President . 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 The petitioner requests that we review, pursuant to our authority under 5 U.S.C. § 1204 (f), the implementation of 5 C.F.R. § 752.403 by her former employer, the Office of Administration (OA) , an entity within the Executive Office of the President. Request File (RF), Tab 1. She further alleges that OA took various actions in violation of other Office of Personnel Management (OPM) regulation s. For the reasons set forth below, w e DENY the petitioner’s request for regulation review . BACKGROUND ¶2 The petitioner alleges that OA violated 5 C.F.R. § 752.403 (b), which provides that “[a]n agency may not take an adverse action against an employee on the bas is of any reason prohibited by 5 U.S.C. § 2302 .” RF, Tab 1 at 2. She states that OA made significant changes to her working conditions and took multiple adverse actions against her in reprisal fo r her protected whistleblower disclosures in violation of 5 U.S.C. § 2302 (b)(8). Id. at 9. She states that OA’s violations of OPM regulations were also prohibited personnel practices (PPP) under 5 U.S.C. § 2302 (b)(3) and (b)(12). Id. The petitioner states that she is also challenging the OA’s implementation of several other OPM regulations, including 5 C.F.R. §§ 410.302 , 531.410, 630.1202, 736.201, 752.102, and 752.201. Id. at 4, 6, 10. 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 3 ¶3 OA responds that the petitioner is attempting to relitigate claims that she has brought in other app eals.3 RF, Tab 9 at 1. OA states that the petitioner “appears to challenge multiple regulations, but only to the extent that she merely lists them without identifying any specific legal infirmities for the Board’s review.” Id. at 5. OA states that thes e “challenges” relate to matters that she already has appeal ed. Id. Finally, OA states that the petitioner “already has had available to her through her individual appeals all appropriate remedies for the challenged personnel actions.” Id. at 6. OPM di d not file a response.4 ANALYSIS ¶4 The Board has original jurisdiction to review rules and regulations promulgated by OPM. 5 U.S.C. § 1204 (f). In exercising its jurisdiction, the Board is authorized to declare an OPM rule or regulation invalid on its face if the Board determines that such provision would, if implemented by any agency, on its face, require any employee to commit a PPP as def ined by 5 U.S.C. § 2302 (b). 5 U.S.C. § 1204 (f)(2)(A). Similarly, the Board has the authority to determine that an OPM regulation has bee n invalidly implemented by an agency if the Board determines that such provision, as it has been implemented by the agency through any personnel action taken by the agency or through any policy adopted by the agency in conformity with such provision, has r equired any employee to commit a PPP. 5 U.S.C. § 1204 (f)(2)(B). See Prewitt v. Merit Systems Protection Board , 3 The petitioner filed a whistleblower individual right of action (IRA) appeal, MSPB Docket No s. DC -1221 -19-0677 -W-1 and DC -1221 -19-0677 -B-1, and an appeal from her removal, MSPB Docket Nos. DC -0752 -20-0092-I-1 and DC -0752 -20-0092 -I-2. 4 The petitioner filed several motions requesting that the Board sanction OPM for not filing a response to her request for regulation review . See, e.g., RF, Tabs 15, 17 -19. Given that the Board’s invitation to OPM to fil e a response was not compulsory, we deny the petitioner’s motions. See Delos Santos v. Office of Personnel Management , 89 M.S.P.R. 296 , ¶ 5 (2001) (holding that there is no statute or regulation requiring a response to a request for regulation review or authorizing the Board to order sanctions under such circumstances ). 4 133 F.3d 885 , 887 (Fed. Cir. 1998). Here, the petitioner challenges the implementation of various OPM regulations by her former employer, OA. ¶5 The Board’s regulations direct the individual requesting review to provide the followi ng information: the requester’s name, address, and signature; a citation identifying the regulation being challenged; a statement (along with any relevant documents) describing in detail the reasons why the regulation would require an employee to commit a PPP, or the reasons why the implementation of the regulation requires an employee to commit a PPP; specific identification of the PPP at issue; and a description of the action the requester would like the Board to take. 5 C.F.R. § 1203.11 (b). See Di Jorio v. Office of Personnel Management , 54 M.S.P.R. 498 , 500 (1992). Here, the petitioner has provided this information only with respect to her challenge to the OA’s implementation of 5 C.F.R. § 752.403 (b). Although she cites several other OPM regulations, she does not provide reasons explaining why OA’ s purportedly incorrect application of those regulations requires an employee to commit a PPP and, in most instances , she does not specifically identif y the PPP at issue. In the absence of such allegations, the petitioner has not met h er burden under 5 C.F.R. § 1203.11 (b). See Garcia v. Office of Personnel Management , 109 M.S.P.R. 266 , ¶ 6 (2008) (where a petitioner fails to explain how a regulation requires the commission of a PPP or fails to identify the PPP at issu e, the Board has denied the regulation review request). ¶6 The petitioner alleges that OA violated 5 C.F.R. § 752.403 (b) by placing her on a detail after she made disclosure s that a Combi ned Federal Campaign (CFC) raffle violated CFC rules ; an authorization for training form, SF -182, was improperly submitted ; a contractor gave away prescription drugs ; and there was mismanagement related to a leasing contract. RF, Tab 1 at 2-4, 8. These same allegations form the basis of the petitioner’s pending IRA appeal. See Mahoney v. Executive Office of the President, Office of Administration , MSPB Docket No . 5 DC-1221 -19-0677 -W-1, Initial Appeal File, Tab 5 (alleging reprisal for making the sam e disclosures ). ¶7 The Board’s regul ation review authority is discretionary. 5 U.S.C. § 1204 (f)(1)(B) (providing that the Board grants a petition for regulation review “in its sole discretion”). See Clark v. Office of Personnel Management , 95 F.3d 1139 , 1141 (Fed. Cir. 1996) (Congress explicitly authorized the Board to review directly any provision of any OPM rule or regulation and stated that the decision whether to grant such review was in the Board’s “sole discretion”). In deciding whether to exercise our discretion, we consider, among other things, the likelihood that the issue will be timely reached through ordinary channels of appeal, the availability of other equivalent remedies, the extent of the regulation’s application, and the strength of the arguments against the validity of its implementation. McDiarmid v. U.S. Fish and Wildli fe Service , 19 M.S.P.R. 347 , 349 (1984). ¶8 Here, we find it dispositive that the petitioner is raising issues that are duplicative of those that she has raised in her pending IRA appeal . Indeed, the petitioner raised her claims of reprisal for whistleblowing by filing a complaint with the Office of Special Counsel and, upon closure of that complaint, an IRA appeal with the Board. On August 3, 2022, the B oard granted the petitioner’s petition for review, vacated the initial decision, and remanded the case for further adjudication. Maloney v. Office of Administration, Executive Office of the President , 2022 MSPB 26 . Among other things, the Board held that OA met the definition of an “agency ” and that the petitioner is an “employee” in a “covered position.” Id. at ¶ 42. In addition , the petitioner’s appeal from her removal remains pending before the Board. If the petitioner prevails in her IRA appeal and/or her removal appeal, appropriate remedies would be available to her. If she prevails in her removal appeal, she may be reinstated and entitled to back pay ; and if she prove s that she was subjected to prohibited personnel practices in her 6 IRA appeal , she may be entitled to corrective action , including compensatory and consequential damages .5 See 5 U.S.C. § 1221 (g). ORDER ¶9 Accord ingly, the petitioner’s request for regulation review is DENIED. This is the final decision of the Merit Systems Protection Board in this proceeding. Title 5 of the Code of Federal Regulations, section 120 3.12(b) (5 C.F.R. § 120 3.12(b)). FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 5 In her request for regulation review, t he petitioner requests that the Board charge certain Federal employees with treason. RF, Tab 1 at 12. The Board does not have authority to order such a remedy.	MALONEY_PEGGY_A_CB_1205_21_0005_U_1_FINAL_ORDER_2034621.pdf	2023-05-24	null	CB-1205	NP
3,102	https://www.mspb.gov/decisions/nonprecedential/ESTRELLA_ELENA_C_SF_0752_16_0506_I_1_FINAL_ORDER_2034627.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ELENA C. ESTRELLA, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER SF-0752 -16-0506 -I-1 DATE: May 24, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Antonio Hernandez , Barstow, California, for the appellant. Christopher H. Bonk , Esquire, and Alexis Tsotakos , Esquire, Silver Spring, Maryland, for the appellant. Michael E. Nyre , Fort Irwin, California, for the agency. BEFO RE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the agency’s action removing her for excessive absenteeism . On review, the appellant argues that the administrative judge erred in denying her affirmative 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required t o follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 defenses of disability discrimination based on a failure to accommodate and retaliation based on prior union and equal employment opportunity activity.2 Petitio n for Review File, Tab 3 at 6 -7, 10 -18. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regula tions, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 f or granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to apply a but -for causation standard to the appellant’s claim of reprisal for complaining of disability discrimination, we AFFIRM the initial decision .3 2 The appellant does not challenge the administrative judge’s findings that the agency proved the charge of excessive absenteeism, established nexus between the charge and the efficiency of the service, and showed that it exercised management discretion within the tolerable limits of reasonableness in imposing her removal. Petition for Review File, Tab 3. She also does not challenge the administrative judge’s findings that she failed to prove her affir mative defenses of disability discrimination based on disparate treatment, discrimination based on uniformed service, harmful procedural error, or a due process violation. Id. We have reviewed the record and discern no basis to disturb these well -reasone d findings. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 105-06 (1997) (finding no reason to disturb the administrative judg e’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility). 3 We agree with the administrative judge that the appellant failed to meet the lesser burden of proving that her protected activity was a motivating factor in her removal. We modify that finding to conclude that the appellant also failed to meet the more 3 NOTICE OF APPEAL RIG HTS4 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time li mit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). stringent “but -for” standard that ap plies to her retaliation claim. See Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 46 -47. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter . 4 If you submit a petition f or review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calend ar days after your representative receives this decision. If the action involves a claim of discrimination based on 5 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) a nd 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you re ceive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial rev iew either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ESTRELLA_ELENA_C_SF_0752_16_0506_I_1_FINAL_ORDER_2034627.pdf	2023-05-24	null	SF-0752	NP
3,103	https://www.mspb.gov/decisions/nonprecedential/JOHNSON_CONNIE_L_PH_0752_18_0134_X_1_FINAL_ORDER_2034660.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CONNIE L. JOHNSON, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER PH-0752 -18-0134 -X-1 DATE: May 24, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Connie L. Johnson , Wausau, Wisconsin, pro se. Daniel S. Lacy , North Chicago, Illinois, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 This compliance proceeding was initiated by t he appellant’s petition for enforcement of the Board’s final decision in the underlying appeal, in which the administrative judge accepted the parties’ settlement agreement into the record for enforcement purposes. Johnson v. Department of Defense , MSPB Docket 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 No. PH-0752 -18-0134 -C-1, Compliance File (CF), Tab 1; Johnson v. Department of Defense , MSPB Docket No. PH -0752 -18-0134 -I-1, Initial Appeal File (IAF), Tab 14, Initial Decision (ID). On February 28, 2019, the administrative judge issued a co mpliance initial decision finding the agency not in compliance with the settlement agreement. CF, Tab 8, Compliance Initial Decision (CID). For the reasons discussed below, we find the agency in compliance and dismiss the petition for enforcement. DISC USSION OF ARGUMENTS AND EVIDENCE ON COMP LIANCE ¶2 On January 11, 2018, the appellant appealed the agency’s decision to remove her from the position of Medical Technician. IAF, Tab 1. During the pendency of the appeal, the parties entered into a settlement a greement that provided for, among other things, expungement of the appellant’s removal documentation from her official personnel file (OPF) and replacement of that documentation with a new Standard Form (SF) 50 indicating that she voluntarily resigned from employment for personal reasons. IAF, Tab 13. On July 11, 2018, the administrative judge issued an initial decision dismissing the appeal as settled and accepting the settlement agreement into the record for enforcement purposes. ID at 2. The initial decision became the final decision of the Board on August 15, 2018, after neither party petitioned for administrative review. ID at 3. ¶3 On January 28, 2019, the appellant filed a petition for enforcement of the settlement agreement, alleging that the age ncy failed to expunge the removal documentation from her OPF and replace the documentation with the new SF -50 indicating her voluntary resignation. CF, Tab 1 at 1. In response, the agency stated that it was unable to expunge the old removal documentation and replace it with the resignation SF -50 due to Executive Order (EO) 13839, section 5, which 3 the agency claimed prohibited it from changing the appellant’s OPF to resolve an administrative challenge to an adverse personnel action.2 CF, Tab 5 at 4-5. ¶4 In a February 28, 2019 compliance initial decision, the administrative judge found the agency not in compliance due to its failure to expunge the removal documentation and replace it with the resignation SF -50. CID at 5 -6. In so finding, the administrati ve judge held that the settlement agreement did not violate the EO because , although it was not signed by all parties until after the May 25, 2018 issuance date of the EO, it was preceded by a binding May 11, 2018 oral agreement to the same terms.3 CID at 5-6. ANALYSIS ¶5 The Board has authority to enforce a settlement agreement that has been entered into the record for enforcement purposes in the same manner as any final Board decision or order. Vance v. Department of the Interior , 114 M.S.P.R. 679 , ¶ 6 (2010). A settlement agreement is a contract, and the Board will therefore adjudicate a petition to enforce a settlement agreemen t in accordance with contract law. Allen v. Department of Veterans Affairs , 112 M.S.P.R. 659 , ¶ 7 2 In its submission, the agency referenced EO 13837. Johnson v. Department of Defense , MSPB Docket No. PH -0752 -18-0134 -X-1, Compliance Referral File , Tab 5 at 4. However, the language quoted by the agency is in EO 13839. 3 Although neither party has challenged the administrative judge’s finding, we address it because the administrative judge properly accepted the settlement agreement into the record for enforcement only if it was lawful. See Mass ey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) (before accepting a settlement agreement into the record for enforcement, the Board must determine, among other things, whether the agreement is lawful on its face), overruled on other grounds by Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce settlement agreements that have been entered into the record, indepe ndent of any prior finding of Board jurisdiction over the underlying matter being settled). We agree with the administrative judge’s reasoning and conclusion regarding the lawfulness of t he settlement agreement and find that the settlement agreement was p roperly entered into the record for enforcement. We additionally note that EO 13839 was revoked on January 22, 2021, via EO 14003, and that the Office of Personnel Management repealed its regulations implementing EO 13839 on December 12, 2022 . 4 (2009), aff’d , 420 F. App’x 980 (Fed. Cir. 2011) . When , as here, an appellant alleges noncompliance with a settlement agreement, the agency must produce relevant, material, and credible evidence of its compliance with the agreement. Vance , 114 M.S.P.R. 679 , ¶ 6. ¶6 On March 25, 2019, the agency submitted a statement of compliance pursuant to 5 C.F.R. § 1201.183 (a)(6)(i). Johnson v. Department of Defense , MSPB Docket No. PH -0752 -18-0134 -X-1, Comp liance Referral File (CRF), Tab 1. The agency stated that it had expunged all documentation related to the appellant’s removal from her OPF and replaced it with the resignation SF -50, and included the new SF -50 as evidence of compliance. Id. at 1-2. The appellant did not file any response to the agency’s submission, despite having been notified of her opportunity to do so and cautioned that, if she did not respond, the Board might assume she was satisfied and dismiss her petition for enforcement. CRF, Tab 2. Accordingly, we assume that she is satisfied with the agency’s compliance. See Baumgartner v. Department of Housing and Urban Development , 111 M.S.P.R. 86 , ¶ 9 (2009). ¶7 In light of the agency’s evidence of compliance and the lack of a response from the appellant, we fin d the agency in compliance and dismiss the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable t ime limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a pe tition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional info rmation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 6 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action inv olves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other securi ty. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, 7 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decis ion. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 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 Circu it 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorn ey will accept representation in a given case. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	JOHNSON_CONNIE_L_PH_0752_18_0134_X_1_FINAL_ORDER_2034660.pdf	2023-05-24	null	PH-0752	NP
3,104	https://www.mspb.gov/decisions/nonprecedential/CHERRY_NYSIAAVIS_M_PH_0752_18_0225_X_1_FINAL_ORDER_2034718.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD NYSIAAVIS M. CHERRY, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER PH-0752 -18-0225 -X-1 DATE: May 24, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Conor Ahern , Esquire , Matthew D. Estes , Esquire, P. Sean Murphy , Esquire , and Angel Juan Valencia , Esquire, Washington, D.C., for the appellant. Ryan K. Bautz , Fort Meade, Maryland, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 In a December 9, 2019 compliance initial decision, the administrative judge found the agency in noncompliance with the Board’s December 3, 2018 decision dismissing the appellant’s appeal based on a settlement agreement entered into the record for purposes of enforcement by the Board. Cherry v. Department of the Army , MSPB Docket No. PH -0752 -0225 -C-1, Compliance File (CF) , Tab 4, Compliance Initial Decision (CID); Cherry v. Department of the Army , MSPB Docket No. PH -0752 -18-0225 -I-1, Initial Ap peal File, Tab 19, Initial Decision. For the reasons discussed below, we find the agency in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 On November 14, 2019, the appellant filed a petition for enforcement asserting that the agency had failed to carry out certain of its obligations under the settlement agreement reached in the underlying appeal. CF, Tab 1 at 6 -7. Following a response by the agency, the administrative judge issued a compliance initial decision granting the petition for enforcement and finding, in relevant part, that the agency had failed to credit the appellant with 84 hours of annual leave and 56 hours of sick leave, as required by the settlement agreement. CID at 4. ¶3 The admini strative judge informed the agency that, if it decided to take the actions ordered in the compliance initial decision, it must submit to the Clerk of the Board a narrative statement and evidence establishing compliance. Id. In addition, he informed both parties that they could file a petition for review of the compliance initial decision if they disagreed with the findings therein. Id. Neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114 . A ccordingly , pursuant to 5 C.F.R. § 1201.183 (b)-(c), the administrative judge’s findings of noncompliance became final, and the appellant’s petition for enforcement was referred to the Board for a 3 final decision on issues of compliance. Cherry v. Department of the Army , MSPB Docket No. PH -0752 -18-0225-X-1, Compliance Referral File (C RF), Tab 1. ¶4 On January 16, 2020, the Board issued an acknowledgment order directing the agency to submit evidence showing that it had complied with all actions identified in the compliance initial decision. CRF, Tab 1 a t 3. On March 2, 2020, the agency filed a response confirming it intended to comply with the actions identified in the compliance initial decision but had not yet “succeeded” in doing so. CRF, Tab 3 at 4. ¶5 The Board issued a second order on August 25, 202 0, again ordering the agency to file evidence of compliance within 30 days. CRF, Tab 4 at 2. The agency did not respond. ¶6 The Board issued a third order on May 31, 2022, instructing the agency to file evidence of compliance within 21 days and warning th at if the agency failed to do so, the Board would issue an order to show cause why the agency should not be sanctioned for its repeated failure s to respond. CRF, Tab 9 at 2 -3. The agency did not respond. ¶7 On August 22, 2022, the Board issued an order to s how cause, instructing the agency to submit a written response explaining why sanctions should not be imposed for the agency’s failure to comply with the Board’s August 25, 2020 and May 31, 2022 orders. CRF, Tab 10 at 4. The show cause order noted that d espite repeated instructions, the agency had failed to identify the agency official charged with compliance with Board orders under 5 U.S.C. § 1204 (e)(2)(A) and 5 C.F.R. § 1201.183 (c). Id. at 3. The Board therefore identified Mr. William J. Koon, Director, Civilian Personnel, Labor and Employment Law for the Army’s Office of the Judge Advocate General, as the responsible agency official, and ordered him to respond to the show cause order as well. Id. ¶8 The agency and Mr. Koon timely filed responses to the show cause order. CRF, Tabs 12 -13. The agency apologized for its prior failures to respond and submitted evidence of full compliance, with which the agency stated the appellant 4 agreed. CRF, Tab 12 at 4 -5, 11 -15. The agency provided the name of the responsible agency official, Lieutenant Colonel James F. Beheler, in accordance with the Board’s prior orders, and contended that sanctions against the agency are not warranted. Id. at 4, 6. Mr. Koon, whom the Board had named as the responsible agency official in the absence of a designation b y the agency, argued that the Board should not impose sanctions because compliance has been achieved. CRF, Tab 13 at 4 -5. The appellant did not respond to either submission and has not opposed the representation that she agrees that the agency has achiev ed compliance. ANALYSIS ¶9 A settlement agreement is a contract and, as such, will be enforced in accordance with contract law. Burke v. Department of Veterans Affairs , 121 M.S.P.R. 299 , ¶ 8 (2014). The Board will enforce a settlement agreement that has been entered into the record in the same manner as a final Board decision or order. Id. When the appellant alleges noncompliance with a settlement agreement, the agency must produce relevant material evidence of its compliance with the agreement or show that there was good cause for noncompliance. Id. The ultimate burden, however, remains with the appellant to prove breach by a prepond erance of the evidence. Id. ¶10 Here, t he agency has submitted a narrative statement, supported by evidence, detailing its compliance efforts. CRF, Tab 12 at 4 -5, 8-15. The agency explained that it s previous representative had worked with the appellant’s attorney to finalize the outstanding issues, including issues related to attorney fees, and submitted a signed agreement between the parties and email exchanges documenting that the issues had been resolved to the appellant’s satisfaction.3 Id. at 10 -15. T he appellant has not responded or otherwise contradicted this 3 The parties did not request that the agreement be entered into the record for enforcement purposes. See CRF, Tab 12 at 12. 5 evidence. Accordingly, we find the agency in compliance with the compliance initial decision and the underlying settlement agreement . ¶11 We decline to impose sanctions on the agency or Mr. Koon. As the agency argued, CRF, Tab 13 at 4 -5, and the appellant did not refute, the Board’s sanctions authority in the petition for enforcement context is aimed at obtaining compliance with Board orders. E.g., Martin v. Department of Justice , 86 M.S.P.R. 13 , ¶ 2 (2000). Once the agency achieves compliance, sanctions are “inappropriate.” Id.; accord Mercado v. Office of Personnel Management , 115 M.S.P.R. 65 , ¶ 8 (2010); O’Keefe v. Department of Veterans Affairs , 69 M.S.P.R. 567 , 569 (1996). Because we now find the agency in compliance, sanctions are not appropriate. ¶12 This is the final decision of the Merit Systems Protection Board in th is compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T 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 regul ations 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 DA YS 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. 6 NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicia l review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for 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 fin al decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 U.S. Court of Appeals for the Federal Ci rcuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any att orney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no lat er than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 8 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed t hrough the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you rece ive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raise s no challenge to the Board’s 9 disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 A ppeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the co urt’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 jur isdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U. S. Court of Appeals for the Federal Circuit or any other circuit court 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: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CHERRY_NYSIAAVIS_M_PH_0752_18_0225_X_1_FINAL_ORDER_2034718.pdf	2023-05-24	null	PH-0752	NP
3,105	https://www.mspb.gov/decisions/nonprecedential/ROMERO_WILFREDO_AT_0841_21_0628_I_1_FINAL_ORDER_2034171.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD WILFREDO ROMERO, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER AT-0841 -21-0628 -I-1 DATE: May 23, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Wilfredo Romero , Lake Mary, Florida, pro se. Alison Pastor , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal of the Office of Personnel Management (OPM)’s calculation of his Federal Employees’ Retirement System (FERS) retirement annuity for lack of jurisdiction . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative ju dge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal ar gument is available that, despite the petitioner ’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201 .115 ). After fully considering the filings in this appeal, we conclude that 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 decisi on, which is now the Board ’s final decision. 5 C.F.R. § 1201.113 (b). However, we FORWARD the appellant ’s involuntary retirement claim to the Atlanta R egional Office for docketing as a new appeal naming the appellant’s former employing agency, the Department of Veterans Affairs (DVA), as the responding agency . BACKGROUND ¶2 The appellant filed a Board appeal , alleging that DVA and OPM miscalculated his FERS retirement annuity following his September 29, 2018 retirement . Initial Appeal File (IAF), Tab 1 at 5 , 22. He checked the box on his initial appeal form indicating that he was appealing an involuntary retirement and listed the DVA as the agency that made the decision he was appealing. Id. at 1, 3. The administrative judge docketed the appeal with OPM as the responding 3 agency, explaining in the initial decision that he did so because OPM “has sole authority and responsibility for adjudicating retirement claims.” IAF, Tab 2, Tab 15, Ini tial Decision (ID) at 4. ¶3 OPM moved to dismiss the appeal on the basis that it had not issued a final decision. IAF, Tab 9 at 5-6. The administrative judge issued an order informing the appellant that the Board has jurisdiction over appeals affecting an individual’s retirement rights only after OPM has issued a final decision and directed him to show cause why his appeal should not be dismissed for lack of juri sdiction. IAF, Tab 10. In his response, the appellant noted that he had filed his appeal again st DVA, not OPM, and argued that both agencies committed harmful error. IAF, Tab 11 at 4. ¶4 Without holding the appellant’s requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction because OPM ha d not issued a final decision . ID at 1, 5-6. He found that OPM expressed intent to issue a final decision and appeared open to adjusting the appellant’s retirement annuity. ID at 5 -6. He further found that the Board has no authority to consider the appe llant’s claim of harmful error in the absence of an otherwise appealable action. ID at 6. ¶5 The appellant has filed a petition for review of the initial decision.3 Petition for Review (PFR) File, Tab 1. OPM has filed a response, PFR File, Tab 4, to whic h the appellant has replied, PFR File, Tab 5. 3 The appellant provides excerpts from the CSRS and FERS Handbook concerning Individual Retirement Records and Registers of Separations and Transfers, his FERS Benefit Estimate Report and retirement records, OPM’s June 26, 2020 letter and proof of its postmark date, and documents pertaining to his purchase of a P .O. Box in Lake Mary, Florida in June 2021. PFR File, Tab 1 at 9 -140, Tab 5 at 10 -13. The se documents fail to show that OPM took an action which adversely affected the appellant’s rights or interests under FERS and, accordingly, are not material t o the outcome of the 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 4 ANALYSIS To the extent the appellant contends that OPM and/or DVA made a decision affecting his rights or interests under FERS, the Board lacks jurisdiction over the claim. ¶6 The Board has jurisdiction over an ad ministrative action or order affecting an individual’s rights or interests under FERS. 5 U.S.C. § 8461 (e). Generally, that requires a final decision by OPM, which is the agency that administers FERS. Okello v. Office of Personnel Management , 120 M.S.P.R. 498 , ¶ 14 (2014); Johnson v. Office of Personnel Management , 97 M.S.P.R. 193 , ¶ 5 (2004); 5 C.F.R. § 841.308 . The Board also has jurisdiction over an individual’s employing agency’s decision affecting his rights or interests under FERS . Adams v. Department of Defense , 688 F.3d 1330 , 1335 (Fed. Cir. 2012). ¶7 Here, OPM did not issue a final decision on the appellant’s claim but indicated that it intended to review his case and issue a decision after the dismissal of this a ppeal. IAF, Tab 9 at 4. The administrative judge relied on OPM’s assertions in finding that the Board lacks jurisdiction over the appeal. ID at 5. We discern no error in that regard. ¶8 The appellant argues that the Board has jurisdiction over his appeal because DVA provided him estimate d retirement benefits information that was subsequently contradicted by OPM. PFR File, Tab 1 at 7 -8. However, t he appellant does not point to an administrative action or order by DVA affecting his rights or interes ts under FERS. Although the appellant received from DVA a FERS Benefit Estimate Report, which he attached to his initial appeal, it s very title reflects that it was an estimate and it contains language stating that the amounts shown were estimates and not intended to represents actual amounts. from that of the initial decision). In addition, most of the documents are alr eady part of the record and, therefore, are not new. IAF, Tabs 1, 5; see Meier v. Department of the Interior, 3 M.S.P.R. 247 , 256 (1980) (stating th at evidence that is already a part of the record is not new ). Thus, we find that the appellant’s evidence does not provide a basis to disturb the initial decision. 5 IAF, Tab 1 at 23 -27. The Report further states that OPM has the sole authority and responsibility for adjudicating retirement matters. Id. at 24. Thus, we find no basis for Board jurisdiction over a DVA administr ative action or order affecting the appellant’s rights or interests under FERS. Accordingly, we deny the petition for review and affirm the initial decision. The appellant’s claim that DVA provided misinformation regarding his length of Federal service re sulting in an involuntary retirement must be forwarded to the regional office for docketing as a separate appeal against DVA. ¶9 An employee -initiated action, such as a re tirement , is presumed to be voluntary and, thus, outside the Board’s jurisdiction. Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501 , ¶ 17 (2007). An involuntary re tirement , however, is tantamount to a removal and, therefore, is within the Board’s jurisdiction. Id. A retirement is involuntary if the employing agency made misleading statements upon which an employee reasonably relied to his detriment. Aldridge v. Department of Agriculture , 111 M.S.P.R. 670, ¶ 8 (2009); Barnett v. U.S. Postal Service , 59 M.S.P.R. 125, 129 (1993). The appellant need not show that the agency was intentionally misleading. Aldridge , 111 M.S.P.R. 670, ¶ 8. ¶10 Below, the appellant indicated that he was appealing his involuntary retirement. IAF, Tab 1 at 3. He asserted that DVA had advised him that he had 20 years, 1 month, and 2 days of service b ut that, after he retired, OPM informed him that he had only 19 years and 6 months of service, resulting in his monthly benefit being reduced by approximately $300 -$400. Id. at 5 . Despite the appellant raising the matter, the administrative judge did not address the involuntary retirement claim. On review, the appellant reiterates his claim that his retirement was based on misinformation from DVA. PFR File, Tab 1 at 6-7. Accordingly, we must forward this matter to the regional office for the administra tive judge to docket an involuntary retirement appeal with DVA as the 6 responding agency. See Oden v. Office of Personnel Management , 58 M.S.P.R. 249, 252 (1993). ¶11 After docketing the appeal, the administrative judge shall inform the appellant of the element s of proof of an involuntary retirement appeal and what he needs to allege to be entitled to a jurisdiction al hearing. Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985) (stating that a n appellant must receive explicit information on w hat is required to establish an appealable j urisdictional issue). The administrative judge shall afford the parties a reasonable opportunity to submit evidence and argument regarding those issues. If the administrative judge finds that the appellant has raised a nonfrivolous allegation that his ap peal is within the Board ’s jurisdiction , he shall afford the appellant his requested hearing.4 ¶12 This is the final decision of the Board regarding the appellant’s appeal of a decision regarding his rights or interests under FERS.5 The appellant’s claim of an involuntary retirement based on misinformation provided by DVA is forwarded to the Atlanta Regional Office for docketing as a new appeal. NOTICE OF APPEAL RIG HTS6 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such 4 The administrative judge should also afford the parties the opportunity to submit evidenc e and argument regarding the timeliness of the September 20, 2021 appeal of the alleged involuntary retirement and if good cause exists for any filing delay. In making this determination, the administrative judge should be mindful of the possible lack of notice of appeal rights regarding the allegedly involuntary retirement. 5 If the appellant is dissatisfied with any subsequent decision regarding his rights or interests under FERS , he may appeal a final decision to the Board. See 5 U.S.C. § 8461 (e)(1), 5 C.F.R. § 841.308 . Any future appeal must be filed within the time limits set forth in the Board’s regulations. See 5 C.F.R. § 1201.22 (b)(1). 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. 7 review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how c ourts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questio ns about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court ’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court ’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11. 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. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action inv olves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other securi ty. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the 9 EEOC ’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request f or review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board ’s disposition of allegations of a prohibited personnel practice describ ed in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your petition for 7 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on 10 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional inform ation about the U.S. Court of Appeals for the Federal Circuit is available at the court ’s website, www.cafc.uscourts.gov. Of particular relevance is the court ’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 Contact information fo r the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ROMERO_WILFREDO_AT_0841_21_0628_I_1_FINAL_ORDER_2034171.pdf	2023-05-23	null	AT-0841	NP
3,106	https://www.mspb.gov/decisions/nonprecedential/STEWART_CHRISTINA_RENA_AT_1221_22_0546_W_1_FINAL_ORDER_2034234.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHRISTINA RENA STEWA RT, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-1221 -22-0546 -W-1 DATE: May 23, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Christina Rena Stewart , Vance, Alabama, pro se. Joy Warner , Decatur, Georgia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has petitioned for review of the November 3, 2022 initial decision in this individual right of action appeal. Initial Appeal File, Tab 12, Initial Decision; Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the appeal as sett led. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 ¶2 After the filing of the petition for review, the agency submitted a document entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on November 21, 2022, and by the agency on November 16, 2022. PFR File, Tab 3 at 9-13. The document provi des, among other things, that the appellant agreed to voluntarily withdraw “any appeals to the Merit Systems Protection Board” in exchange for the promises made by the agency. Id. at 9. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146 , 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agree ment is lawful on its face and whether the parties freely entered into it. See Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002), overruled on other grounds by Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 11-21 (2017 ) (holding that the Board may enforce settlement agreements that have been entered into the record, independent of any prior finding of Board jurisdiction over the underlying matter being settled). ¶4 Here, we find that the parties have entered into a settlem ent agreement and understand its terms. PFR File, Tab 3 at 9 -13. We further find that the parties do not intend to enter the settlement agreement into the record for enforcement by the Board, as the agreement instead provides for enforcement through the equal employment opportunity procedures set forth at 29 C.F.R. § 1614.504 . Id. at 10; see Grubb v. Department of the Interior , 76 M.S.P.R. 639 , 642 -43 (1997) (finding that the parties intended the Equal Employment Opportunity Commission, not the Board, to enforce a settlement agreement that provided for enforcement i n accordance with 29 C.F.R. § 1614.504 ). As the parties do not intend for the Board to enforce the settlement agreement, we need not address the additional 3 considerations regarding enf orcement and do not enter the settlement agreement into the record for enforcement by the Board. ¶5 In light of the foregoing, we find that dismissing the appeal “with prejudice to refiling” (i.e., the parties normally may not refile this appeal) is appropria te under these circumstances. This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . 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 not ice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono re presentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, 5 and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your re presentative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed thro ugh the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your d iscrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washi ngton, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW 12G Washington, D.C. 20507 6 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petit ion for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “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, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 If you are interested in securing pro bono representation for an appeal to the U. S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses th e services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	STEWART_CHRISTINA_RENA_AT_1221_22_0546_W_1_FINAL_ORDER_2034234.pdf	2023-05-23	null	AT-1221	NP
3,107	https://www.mspb.gov/decisions/nonprecedential/LEWIS_WENDY_ANNE_AT_0845_19_0429_X_1_FINAL_ORDER_2034240.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD WENDY ANNE LEWIS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER AT-0845 -19-0429 -X-1 DATE: May 23, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Wendy Anne Lewis , Davenport, Florida, pro se. Tynika Faison Johnson , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 This compliance proceeding was initiated by the appellant’s petition for enforcement of the Board’s November 7, 2019 order in Lewis v. Office of Personnel Management , MSPB Docket No. AT -0845 -19-0429 -I-1, in which the administrative judge accepted the parti es’ settlement agreement into the record for enforcement purposes. Lewis v. Office of Personnel Management , MSPB Docket No. AT -0845 -19-0429 -I-1, Initial Appeal File (IAF), Tab 32, Initial Decision (ID). On May 29, 2020, the administrative judge issued a compliance initial decision finding the agency not in compliance with the Board’s November 7, 2019 order. Lewis v. Office of Personnel Management , MSPB Docket No. AT -0845 -19-0429 -C-1, Compliance File (CF), Tab 7, Compliance Initial Decision (CID). For th e reasons discussed below, we find the agency in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 On April 18, 2019, the appellant appealed the determination by the Office of Personnel Management (OP M) that she had received an overpayment of her Federal Employees Retirement System (FERS) annuity in the amount of $15,378.10. IAF, Tab 1 at 3 -4. On November 7, 2019, the administrative judge, pursuant to a settlement between the parties, issued an initi al decision dismissing the appeal as settled and accepting the settlement agreement into the record for enforcement purposes. ID at 1 -2. The settlement agreement called for the agency to accept a reduced amount to be deducted monthly from the appellant’s annuity to repay the overpayment and extend the repayment period. Specifically, the agreement included the following term: [OPM] will accept repayment for current balance of $15,378.10 in full recovery of the annuity[.] [O]verpayment will be collected via installment [that] will be made from Ms. Lewis’s annuity benefit @ $50.00 a month for 307 months with a final installment of $28.10. 3 IAF, Tab 30 at 5 (emphasis omitted). The initial decision became the final decision of the Board on December 12, 2019, when neither party petitioned for review. ID at 3. ¶3 On March 31, 2020, the appellant filed a petition for enforcement of the settlement agreement. CF, Tab 1. The appellant alleged that, for the annuity payment dated April 1, 2020, the agency deducted b oth the $50.00 amount and the final installment payment of $28.10. Id. at 4 -5. In response, the agency admitted to withdrawing the $28.10, stating this withdrawal was due to its “current operating procedure” for final installment amounts that are differe nt than the agreed upon monthly amount for the remainder of the repayment period. CF, Tab 4 at 3. In a May 29, 2020 compliance initial decision, the administrative judge found the agency not in compliance with the settlement agreement because the agency’ s withholding of the $28.10 from the April annuity payment, in addition to the $50.00, was in conflict with the plain language of the settlement agreement, which called for the $28.10 to be withheld only at the end of the repayment schedule. CID at 3 -4. As a result, the administrative judge granted the appellant’s petition for enforcement and ordered the agency to refund the $28.10 to the appellant, with interest. CID at 4. ¶4 Neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114 . As such, pursuant to 5 C.F.R. § 1201.183 (b)-(c), the administrative judge’s findings of noncompliance became final, and the appellant’s petition for enforcement was referred to the Board for a final decision on issues of compliance. Lewis v. Office of Personnel Management , MSPB Docket No. AT -0845 -19-0429 -X-1, Compliance Referral File (CRF), Tab 1. ¶5 On July 7, 2020, the appellant informed the Board that the agency had refunded the $28.10 to her in her July 1, 2020 benefit check but also noted that the a gency failed to pay interest on the refunded amount. CRF, Tab 2 at 3 -4. 4 ¶6 On July 14, 2020, the agency provided documentary evidence showing it had refunded the $28.10 to the appellant and requested that the Board dismiss the appellant’s petition for enfor cement. CRF, Tab 3 at 4 -8. In a separate pleading filed the same day, the agency asserted that the administrative judge did not order it to pay interest and further claimed that interest should not be paid because the appellant still owed the Federal Ret irement Fund a debt of over $10,000.00 that she was paying back interest -free. CRF, Tab 4 at 3. In response, the appellant asserted that the administrative judge did, in fact, order that interest be paid on the refunded amount. CRF, Tab 5 at 3 -4. ANAL YSIS ¶7 A settlement agreement is a contract and, as such, will be enforced in accordance with contract law. Burke v. Department of Veterans Affairs , 121 M.S.P.R. 299 , ¶ 8 (2014). The Board will enforce a settlement agreement that has been entered into the record in the same manner as a final Board decision or order. Id. When the appellant alleges noncompliance with a settlement agreem ent, the agency must produce relevant material evidence of its compliance with the agreement or show that there was good cause for noncompliance. Id. The ultimate burden, however, remains with the appellant to prove breach by a preponderance of the evide nce. Id. ¶8 The agency’s outstanding compliance issues were its obligations to refund $28.10 to the appellant and pay her interest on that amount. The parties’ submissions show that the agency has refunded the $28.10 to the appellant. CRF, Tab 2 at 3 -4, Ta b 3 at 4 -8. The parties dispute, though, whether interest is owed to the appellant on the refunded amount. In this regard, the appellant is correct that the administrative judge did order the agency to pay interest. CID at 4. However, the amount of int erest owed equates to approximately $0.27, and this de 5 minimis amount is insufficient to establish the agency as not in compliance.3 See Boomer v. Department of the Navy , 54 M.S.P.R. 541 , 546 ( de minimis amount of overtime owed was insufficient to entitle an award of overtime pay). ¶9 Accordingly, the Board finds the agency in compliance and dismisses the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the n ature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appea l rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in th e dismissal of your case by your chosen forum. Please read 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 agency further claims, without citing any aut hority, that paying interest to the appellant would be inappropriate under the circumstances. CRF, Tab 4 at 3. Because we find the agency to be in compliance due to the de minimis amount of funds owed, we do not address the agency’s contention regarding whether interest would otherwise be owed. 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 i s most appropriate in any matter. 6 about whether a particular forum is the appropriate o ne to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U .S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Cou rt of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6 , 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Mer it Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain 7 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this dec ision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action inv olves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other securi ty. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request f or review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 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 describ ed in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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: 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional infor mation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information f or the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR T HE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	LEWIS_WENDY_ANNE_AT_0845_19_0429_X_1_FINAL_ORDER_2034240.pdf	2023-05-23	null	AT-0845	NP
3,108	https://www.mspb.gov/decisions/nonprecedential/PRINGLE_PATRICIA_SF_0714_17_0678_I_1_FINAL_ORDER_2034254.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD PATRICIA PRINGLE, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER SF-0714 -17-0678 -I-1 DATE: May 23, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Brook L. Beesley , Alameda, California, for the appellant. Nadine Scott , Esquire, Seattle, Washington, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has petitioned for review of the initial decision in this appeal. For the reasons set forth below, we DISMISS the appeal as settled. ¶2 After the filing of the petition for review, on May 16, 2023, the parties submitted a document entitled “SETTLEMENT AGREEMENT ,” which was 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required t o follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 executed by the appellant on April 28, 2023, and by the app ellant’s representative and the agency on May 4, 2023. Petition for Review (PFR) File, Tab 7 at 4 -7. The document provides, among other things, for the withdrawal of the appeal . Id. at 4. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board . See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146, 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it. See Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 10 -11 (2017 ). ¶4 Here, we find that the parties have entered into a settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enfo rcement by the Board. PFR File, Tab 7 at 3, 5-6. 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 entere d into, and we accept the settlement agreement into the record for enforcement purposes. ¶5 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS If the agency or the appellant has not fully carried out the terms of the agreement, either party may ask the Board to enforce the se ttlement 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 ha ve not 3 been fully carried out, and should include the dates and results of any communications between the parties. 5 C.F.R. § 1201.182 (a). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims an d carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be 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 whic h 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 c ourt’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federa l Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorne y nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a re presentative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimi nation based on 5 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts. gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a r epresentative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. C ourt of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circui t 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitio ners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our web site at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 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, si gned into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	PRINGLE_PATRICIA_SF_0714_17_0678_I_1_FINAL_ORDER_2034254.pdf	2023-05-23	null	SF-0714	NP
3,109	https://www.mspb.gov/decisions/nonprecedential/BAKER_TOMMY_DEAN_PH_0752_18_0217_X_1_FINAL_ORDER_2034310.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TOMMY DEAN BAKER, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER PH-0752 -18-0217 -X-1 DATE: May 23, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Tommy Dean Baker , Mount Hope, West Virginia, pro se. Daniel S. Lacy , North Chicago, Illinois, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 In a March 28, 2019 compliance initial decision, the administrative judge found the agency in noncompliance with a settlement agreement that had been entered into the record for enforcement by the Board in the underlying appeal and granted the appellant’s petition for enforcement. Baker v. Department of the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Army , MSPB Docket No. PH -0752 -18-0217 -C-1, Compliance File (CF), Tab 5, Compliance Initial Decision (CID); Baker v. Department of the Army , MSPB Docket No. PH -0752 -18-0217 -I-1, Initial Appeal File, Tab 15, Initial Decision (ID).2 For the reasons discussed below, we now find the agency in compl iance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 In the compliance initial decision, the administrative judge found the agency in noncompliance with the settlement agreement to the extent it fa iled to cancel the appellant’s 30 -day suspension and replace it with a 14 -day suspension, document such replacement in the appellant’s Official Personnel Folder (OPF), and pay him appropriate back pay.3 CID at 3 -7. Accordingly, the administrative judge g ranted the appellant’s petition for enforcement and ordered the agency to: (1) cancel and replace the appellant’s 30 -day suspension with a 14 -day 2 The June 26, 2018 initial decision entering the settlement agreement into the record for enforcement and dismissing the appeal as settled became the final decision of the Board on July 3 1, 2018, after neither party filed a petition for administrative review. ID at 3. 3 The administrative judge also held that the settlement agreement did not violate Executive Order (EO) 13839, section 5, and that the EO did not preclude the agency from complying with the settlement term requiring it to reduce the 30 -day suspension to a 14 -day suspension. CID at 5 -6. Although neither party has challenged this finding , we address it because the administrative judge properly accepted the settlement agreem ent into the record for enforcement only if the settlement agreement was lawful. See Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) (before accepting a settlement agreement into the record for enforcement, the Board must determi ne, among other things, whether the agreement is lawful on its face), overruled on other grounds by Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce settlement agreements that have been entered into the record, independent of any prior finding of Board jurisdiction over the underlying matter being settled). We agree with th e administrative judge’s reasoning and conclusion regarding the lawfulness of the settlement agreement, and find that the settlement agreement was properly entered into the record for enforcement. We additionally note that EO 13839 was revoked on January 22, 2021, via EO 14003, and that the Office of Personnel Management repealed its regulations implementing EO 13839 on December 12, 2022 . 3 suspension, and document this change on a Standard Form (SF) 50, which was to be placed in the appellant’s OP F; and (2) pay the appellant back pay as specified by paragraph 3(b) of the settlement agreement. CID at 7. ¶3 Neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114 . As such, pursuant to 5 C.F.R. § 1201.183 (b)-(c), the administrative judge’s findings of noncompliance became final, and the appellant’s petition for enforcement was referred to the Board for a final decision on issues of compliance. Baker v. Department of the Army , MSPB Docket No. PH -0752 -18-0217-X-1, Compliance Referral File (CRF), Tab 1. In a May 6, 2019 acknowledgment order, the Clerk of the Board directed the agency to submit evidence showing it had complied with the actions identified in the compliance initial decision. Id. at 3. The Cle rk informed the appellant that he could respond to any submission from the agency within 20 calendar days of the submission and that, if he did not respond, the Board might assume he was satisfied and dismiss his petition for enforcement. Id. ¶4 On May 21, 2 019, the agency submitted two compliance submissions to the Board. CRF, Tabs 2 -3. Therein, the agency stated and provided evidence reflecting that it had removed from the appellant’s OPF the SF -50 documenting the 30 -day suspension and replaced it with on e showing a 14 -day suspension. CRF, Tab 2 at 4-6. The agency also stated and provided evidence showing that it gave corrected timecards and time and attendance records to the Defense Finance and Accounting Service (DFAS) so that DFAS could process the ap pellant’s back pay. CRF, Tab 2 at 4, 7, Tab 3 at 3 -5. The appellant did not respond to the agency’s compliance submissions despite being notified of his opportunity to do so and being cautioned that the Board might assume he is satisfied and dismiss his petition for enforcement if he did not respond. Accordingly, we assume that the appellant is satisfied with the agency’s compliance. See Baumgartner v. Department of Housing and Urban Development , 111 M.S.P.R. 86 , ¶ 9 (2009). 4 ¶5 In light of the agency’s evidence of compliance and the lack of any response from the appellant, we find the agency in compliance and dismiss the petiti on for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seek ing such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not p rovide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final d ecision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum f or more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the cou rt 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights inc luded 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 d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file 6 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEO C via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 7 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited p ersonne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or a ny 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 wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of c ompetent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 inf ormation regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case . Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/Cour tWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BAKER_TOMMY_DEAN_PH_0752_18_0217_X_1_FINAL_ORDER_2034310.pdf	2023-05-23	null	PH-0752	NP
3,110	https://www.mspb.gov/decisions/nonprecedential/TRAYLOR_DONNA_E_DA_1221_17_0128_W_1_FINAL_ORDER_2034319.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DONNA E. TRAYLOR, Appellant, v. OFFICE OF SPECIAL CO UNSEL, Agency. DOCKET NUMBER DA-1221 -17-0128 -W-1 DATE: May 23, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Donna E. Traylor , Lawton, Oklahoma, pro se. Amy Beckett , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Ch airman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her individual right of action appeal for lack of jurisdiction . On petition for review, the appellant argues that she was unable to read and respond to the agency’s motion to dismiss prior to the status conference. She also argues that the administrative ju dge should not have addressed the merits of 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 dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 during the status conference. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decisi on is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record c losed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how cour ts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is mos t appropriate in any matter. 3 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a p etition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, o n unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit ), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision bef ore you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling c ondition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can b e found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision be fore you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 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 se ction 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law b y the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Feder al Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	TRAYLOR_DONNA_E_DA_1221_17_0128_W_1_FINAL_ORDER_2034319.pdf	2023-05-23	null	DA-1221	NP
3,111	https://www.mspb.gov/decisions/nonprecedential/SEAY_ALIKA_AT_0752_19_0147_X_1_FINAL_ORDER_2034343.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ALIKA SEAY, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER AT-0752 -19-0147 -X-1 DATE: May 23, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Alika Seay , Quitman, Georgia, pro se. James M. Reed , Esquire, Clearwater, Florida , for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 On January 23, 2020 , the administrative judge issued a compliance initial decision granting the appellant’s petition for enforcement and finding 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 require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 in partial noncompliance with an August 13, 2019 initial decision revers ing the appellant’s removal. Seay v. U.S. Postal Service , MSPB Docket No. AT -0752 - 19-0147 -C-1, Compliance File (CF), Tab 5, Compliance Initial Decision (CID) ; Seay v. U.S. Postal Service , MSPB Docket No. AT -0752 -19-0147 -I-1, Initial Appeal File (IAF), Tab 43, Initial Decision (ID) .3 For the reasons dis cussed below, we now find the agency in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 Effective November 7, 2018, the agency removed the appellant from her Part-Time Flexible Clerk position at the Quitman, Georgia Post Office. IAF, Tab 5 at 4, 13, 58 -62. The appellant appealed her removal to the Board. IAF, Tab 1. In the August 13, 2019 initial decision , the administrative judge reversed the removal and ordered the agency to reinstate the appel lant with back pay and benefits. ID at 7 -10, 12-13. When neither party filed a petition for review by September 17, 2019, the initial decision became the final decision of the Board. ID at 1 5; see 5 C.F.R. § 1201.113 . ¶3 On November 8, 2019, the appellant petitioned for enforcement of the initial decision .4 CF, Tab 1. In the January 23, 2020 compliance initial decision, the administrative judge found that the agency was in partial nonco mpliance with the initial decision to the extent that it had not paid the appellant back pay for the period from May 23 through August 20, 2019. CID at 4. Accordingly, she granted the appellant’s petition for enforcement and ordered the agency to pay her back pay for that period with interest and to adjust her benefits with appropriate 3 The August 13, 2019 initial decision also address ed the appellant’s constructive suspension appeal in Seay v. U.S. Postal Service , MSPB Docket No. AT-0752 -19-0398 - I-1. 4 On March 6, 2020, the appellant filed a second petition for enforcement, which the administrative judge denied in a June 22, 2020 compliance initial decision. Seay v. U.S. Postal Service , MSPB Docket No. AT -0752 -19-0147 -C-2, Compliance File, Tabs 1, 6. 3 credits and deductions . CID at 4-5. Neither party filed any submission with the Clerk of the Board within the applicable time limits, and the appellant’s petition for enf orcement was referred to the Board for a final decision on issues of compliance pursuant to 5 C.F.R. § 1201.183 (b)-(c). Seay v. U.S. Postal Service , MSPB Docket No. AT -0752 -19-0147 -X-1, Compliance Referral File (CRF), Tab 1. ¶4 In a February 28, 2020 acknowledgment order, the Office of the Clerk of the Board directed the agency to submit evidence showing that it had complied with all actions identified in the compliance initial decision. CRF Tab 1 at 3. The Clerk ’s Office informed the appellant that she had the right to respond to the agency’s submission and that, if she did not respond, the Board m ight assume she was satisfied and dismiss her petition for enforcement. Id. On March 9, 2020, the agency notified the Board that it had taken all actions required by the initial decision. CRF, Tab 2 at 4. In support, the agency provided a Back Pay Decision/Settlement Worksheet signed by the appellant on March 1, 2020, and by the agency offi cial on March 5, 2020, reflecting that the agency would process back pay and benefits to the appellant for the period from May 23 through August 20, 2019. Id. at 5-11. In a response dated March 20, 2020, the appellant alleged that the agency had failed t o comply with the administrative judge’s order “to issue a statement after every obligation was met.” CRF, Tab 3 at 1. The remainder of her response pertained to her personal health issues and new problems with the agency following her return to work in late 2019 , including alleged harassment, retaliation, denial of leave, and issues with pay . Id. at 2-6. ¶5 When , as here, the Board finds a personnel action unwarranted, the aim is to place the appellant, as nearly as possible, in the situation she would have been in had the wrongful personnel action not occurred. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011); King v. Department of the Navy , 100 M.S.P.R. 116 , ¶ 12 (2005), aff’d per curiam , 167 F. App ’x 191 (Fed. Cir. 2006). The agency bears the burden to prove compliance with the Board ’s order 4 by a preponderance of the evidence.5 Vaughan , 116 M.S.P.R. 319 , ¶ 5; 5 C.F.R. § 1201.183 (d). An agency ’s assertions of compliance must include a clear explanation of its compliance actions supported by documentary evidence. Vaughan , 116 M.S.P.R. 319 , ¶ 5. The appellant may rebut the agency ’s evidence of compliance by making specific, nonconclusory, and supported assertions of continued nonco mpliance. Id. ¶6 As described above, the administrative judge found that the agency was in partial noncompliance with the initial decision to the extent it had not paid the appellant back pay for the period from May 23 through August 20, 2019. CID at 4. Th e agency has now submitted evidence indicating that the appellant has been paid appropriate back pay and benefits for this period. CRF, Tab 2. The appellant has not challenged the agency’s evidence of compliance with its obligation to provide her back pa y and benefits , and the Board therefore assumes she is satisfied. See Baumgartner v. Department of Housing and Urban Development , 111 M.S.P.R. 86 , ¶ 9 (2009). Regarding the appellant’s claim that the agency failed to comply with the administrative judge’s o rder to submit a statement after “every obligation was met,” the agency was under no such obligation. See CID at 4-5. Finally, the appellant’s allegations concerning problems with the agency arising after her return to work in late 2019 are unrelated to the agency’s compliance with the relief ordered in the compliance initial decision and provide no basis to find noncompliance . ¶7 In light of the foregoing, we find that the agency is now in compliance and dismiss the petition for enforcement. This is th e final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, sec tion 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). 5 A preponderance of the evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q). 5 NOT ICE 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 t ime limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a pe tition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 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 advi se which option is most appropriate in any matter. 6 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional info rmation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action in volves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 7 requirement of prepayment of fees, costs, or other secur ity. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial deliver y or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities l isted in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 8 disposition of allegations of a prohibited personnel practi ce described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of app eals 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 pe tition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additi onal information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’ s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regard ing 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. 9 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact inf ormation for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SEAY_ALIKA_AT_0752_19_0147_X_1_FINAL_ORDER_2034343.pdf	2023-05-23	null	AT-0752	NP
3,112	https://www.mspb.gov/decisions/nonprecedential/PORTER_BILLY_J_DA_3443_17_0497_I_1_FINAL_ORDER_2034355.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BILLY J. PORTER, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DA-3443 -17-0497 -I-1 DATE: May 23, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Billy J. Porter , Cibolo, Texas, pro se. Alyssa W. Silberman , Esquire, Jackson, Mississippi, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed this appeal for lack of jurisdiction. On petition for review, the appellant argues the merits of the agency’s action suspending him for 14 days and alleges reprisal for protected equal employment opportunity activity. He includes 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 correspondence with his petition for review indicating he may have exhausted his administrative remedies before the Office of Special Counsel concerning the claims he made in this appeal .2 Generally, we grant petitions such as this one only in the following circumstanc es: 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 rulin gs during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is a vailable that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that 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 i s 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 Subsequent to the filing of this petition for review, the appellant file d an individ ual right of action appeal concerning his 14 -day suspension . Porter v. Department of Veterans Affairs , MSPB Docket No. DA -1221 -18-0172 -W-1. The appellant has petitioned for review of the initial decision that denied his request for corrective action in that appeal , and we will resolve that petition for review in a separate decision. 3 Since the issuance of th e initial decision in this matter, the Board may have updated the notice 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 b elow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies t o your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judic ial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 4 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any a ttorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and tha t such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then yo u must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may b e entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 5 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 t hat provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	PORTER_BILLY_J_DA_3443_17_0497_I_1_FINAL_ORDER_2034355.pdf	2023-05-23	null	DA-3443	NP
3,113	https://www.mspb.gov/decisions/nonprecedential/SAUNDERS_DIANA_PH_0752_17_0215_I_1_FINAL_ORDER_2034427.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DIANA SAUNDERS, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER PH-0752 -17-0215 -I-1 DATE: May 23, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Karen Betournay , Esquire, Springfield, Massachusetts, for the appellant. Alice Bishop and Jonathan Smith , Bedford, Massachusetts, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained her removal . On petition for review, the appellant argues that the administrative judge denied her request for one witness on the basis of repetitious testimony and that a different witness lied during her testimony. Petition for 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Review File, Tab 1 at 3, Tab 4 at 3. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material f act; 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 w ere not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not avai lable when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that t he petitioner has not established any basis under section 1201.115 for granting the petition for review.2 Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your clai ms determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t 2 We have reviewed the appellant’s alleged new evidence submitted on review and have determined that it is either not new evidence or it is not material to her appeal , and she has made no showing tha t the information in these documents were unavailable before the record closed . 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 ); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) (holding that , under 5 C.F.R. § 1201.115 , the Board will no t consider evidence submitted for the first time on review absent a showing that it was unavailable before the rec ord was closed despite the party’ s due diligence ). 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 yo u wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of you r case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circu it, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 4 http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the lin k below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discriminati on claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations 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 Washi ngton, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW 12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no chal lenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review e ither with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claim s by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certai n whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 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 “G uide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit , you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor war rants that any attorney will accept representation in a given case. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SAUNDERS_DIANA_PH_0752_17_0215_I_1_FINAL_ORDER_2034427.pdf	2023-05-23	null	PH-0752	NP
3,114	https://www.mspb.gov/decisions/nonprecedential/ANSORGE_LAURIE_V_PH_0845_22_0194_I_1_FINAL_ORDER_2033613.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LAURIE V. ANSORGE, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER PH-0845 -22-0194 -I-1 DATE: May 22, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kimberly H. Berry , Esquire, Reston, Virginia, for the appellant. Karla W. Yeakle , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the final decision of the Office of Personnel Management (OPM) finding that the appellant had been overpaid Federal Employee Retirement System (FERS) annuity benefits . For the reasons discussed below, we GRANT the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 appellant’s petition for review , VACATE the i nitial decision , and ORDER OPM to cancel its final decision concluding that the appellant was overpaid $2,002.96 in interim annuity benefits and was not eligible for an annuity supplement and to retroactively recalculate the appellant’s annuity pursuant to the new evidence discussed below . BACKGROUND ¶2 The appellant retired effective October 6, 2021 , at age 57 from her position as Supervisory IT Specialist for the Food and Drug Administration (FDA) , Department of Health and Human Services (DHHS) . Initial A ppeal File (IAF), Tab 1 at 12 . At the time of her retirement, she believed that she had 30 years plus 1 day of creditable Federal service and that she would be eligible to receive a FERS annuity supplement. IAF, Tab 1 at 4-5, Tab 3 at 4 . On March 22, 20 22, OPM notified the appellant that it had determined she had been overpaid $2,002.96 in estimated interim annuity payments and that it would collect the overpayment in seven monthly installments of $269.01 and one final installment of $119.89. IAF, Tab 3 at 16 -18. The appellant requested reconsideration of the existence and amount of the overpayment , alleging that OPM had incorrectly calculated her annuity by failing to include the annuity supplement she qualified for based on her 30 years of service and her age at retirement , and that she had in fact been underpaid . Id. at 19 -20. On May 5, 2022, OPM issued a final decision concluding that the appellant was not eligible for an annuity supplement because it calculated that she only worked 29 years and 11 months , and it affirmed its initial decision. IAF, Tab 1 at 8. ¶3 The appellant timely appealed to the Board , argui ng that OPM erroneously denied her entitlement to an annuity supplement . Id. at 4. After holding the requested hearing with only the appellant because OPM failed to participate in the appeal, the administrative judge issued an initial decision affirming OPM’s final decision. IAF, Tab 17, Initial Decision (ID) at 1 -2. The administrative judge 3 found that based on the language at 5 U.S.C. § 8411 (a)2 and in OPM guidance,3 the 6 days that the appella nt worked in October 2021 constituted a fractional part of a month that did not count towards her creditable service . ID at 2 -4. The administrative judge further found that although the appellant relied on retirement estimates provided by the FDA and onl ine platforms that showed that she had just over 30 years of service credit and would be entitled to an unreduced annuity, erroneous advice could not serve to estop OPM from denying benefits prohibited by law and that OPM was bound by the language in 5 U.S.C. § 8411 (a). ID at 4 (citing Office of Personnel Management v. Richmond , 496 U.S. 414 (1990) ). ¶4 The appellant filed a timely petition for review. Petition for Review (PFR) File, Tab 1. She argue d that the Board should grant her petition for review based on new and material evidence coming forward in a constructive discharge case she fi led against the FDA as a result of the FDA’s error and misadvice in calculating her retirement date . Id. at 5-8. She discussed the ongoing confusion regarding her creditable service and specifically noted that her constructive discharge case was in settl ement negotiations that could lead to her retirement date being recalculated or corrected to comply with OPM regulations, which would directly affect OPM’s final decision in this case . Id. at 6. OPM filed a response, maintaining that it correctly compute d the appellant’s annuity and overpaymen t based on the records contained in her retirement file at that time . PFR File, Tab 5 at 4-8. In her reply, the appellant discussed additional new and conflicting information regarding her retirement and also stated that she was 2 The relevant statute for determining creditable service for FERS retirement annuity purposes states that “[t]h e total service of an employee or Member is the full years and twelfth parts thereof, excluding from the aggregate the fractional part of a month, if any.” 5 U.S.C. § 8411 (a)(1). 3 See Office of Personnel Management, Civil Service Retirement System (CSRS) and Federal Employees’ Retirement System (FERS) Handbook for Personnel and Payroll Offices (Handbook ), Ch. C050 , Sections 50A2.1 -2, 50A2.1 -3, (Apr. 1998), https://www.opm.gov/retirement -center/publications -forms/csrsfers -handbook/c050.pdf (last visited May 19, 2023). 4 awaiting receipt of a proposed settlement agreement in her constructive discharge case that would result in there no longer being an overpayment . PFR File, Tab 6 at 4-10. ¶5 After the record closed on review, t he Clerk of the Board issued an order seeking more information as to the impact of the appellant’s constructive discharge appeal on the issues in this case and gave both parties the opportunity to reply . PFR File, Tab 7 ; see also PFR File, Tabs 8 -10. In her response , the appellant submitted an executed settlement agreement between her and her former agency that states that the DHHS will process the appellant’s retirement effective November 30, 2021 , and that the DHHS “is taking this action to ensure [the a]ppellant has at least 30 -years of Federal service for purposes of determining her eligibility for the FERS Annuity Supplement and MR A [minimum retirement age] +30 retirement.” PFR File, Tab 9 at 9. Both the appellant and OPM acknowledge d that the DHHS is taking action to implemen t this agreement , and OPM indicated that it has already been in contact with the DHHS regarding the document ation and other steps necessary to readjudicate the appellant’s retirement . PFR File, Tab 9 at 5 -6, Tab 10 at 6. DISCUSSION OF ARGUME NTS ON REVIEW ¶6 An appellant bears the burden of proving her entitlement to the retirement benefits she seeks by preponderant evidence. See Cheeseman v. Office of Personnel Management , 791 F.2d 138 , 140 -41 (Fed. Cir. 1986); 5 C.F.R. § 1201.56 (b)(2)(ii). Individuals that have reached a minimum retirement age (MRA) based on their year of birth an d have at least 30 years of Federal service are entitled to an immediate unreduced retirement annuity under what OPM labels as “MRA+30 retirement.” See 5 U.S.C. § 8412 (a); Office of Personnel Mana gement, Civil Service Retirement System (CSRS) and Federal Employees’ Retirement System (FERS) Handbook for Personnel and Payroll Offices (Handbook ), Ch. C04 1, Section 4 1B1.1 -2, Subpart F , (Apr. 1998), 5 https://www.opm.gov/retirement -center/publications -forms/csrsfers -handbook/ c041.pdf (last visited May 19, 2023); see also De Laet v. Office of Personnel Management , 70 M.S.P.R. 390 , 394 (1996) (recognizing that the Handbook is an authoritative interpretation of employee rights and agency responsibilities under Federal retirement laws); PFR File, Tab 5 at 5 n.3. In addition, individuals who retire before ag e 62 and who are entitled to an immediate annuity are also eligible for an annuity supplement to bridge the gap until the employee becomes eligible for Social Security benefits. See 5 U.S.C. § 8421 (a)(1); Handbook , Ch. C05 1, Section 51A1.1 -1, https://www.opm.gov/retirement -center/publications -forms/ csrsfers -handbook/c051.pdf (last visited May 19, 2023). ¶7 The Board may grant a petition for review when the petitioner establishes that new and material evidence is available th at, despite due diligence, was not available when the record closed. 5 C.F.R. § 1201.115 (d)(1). To constitute new and material evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed. Grassell v. Department of Transportation , 40 M.S.P.R. 554 , 564 (1989). Evidence is material when it is of sufficient weight to warrant an outcome different from that of the initial decision. Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) ; see also Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (finding that 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). Here, we find that the ap pellant’s settlement agreement with the DHHS is significant new evidence that warrants granting her petition for review . To this end, it is clear that the appellant only filed her constructive discharge appeal after the administrative judge issued the ini tial decision and that she only executed her settlement agreement with the DHHS in November 2022, after the close of the record on review. PFR File, Tab 1 at 6, Tab 9 at 11 . Further more , because the settlement agreement adjusts the appellant’s years of 6 creditable Federal service and thus her eligibility for certain retirement benefits such as the annuity supplement at issue in this appeal , it is clearly material .4 See PFR File, Tab 9 at 9. ¶8 As discussed above , OPM found in its final decision that the appellant was not eligible for an annuity supplement because she only worked 29 years and 11 months and that it correctly computed her FERS annuity , and thus that she had been overpaid in estimated interim annuity payments . IAF, Tab 1 at 8. And t he admin istrative judge found that the appellant failed to show that OPM incorrectly calculated her years of service or that its decision was otherwise erroneous. ID at 3-4. However, as a result of the appellant’s new evidence, these decisions are based on infor mation that is now factually incorrect and they are therefore erroneous. Specifically, the appellant has presented preponderant evidence demonstrating that she now has at least 30 years of creditable service , is entitled to retire under MRA+30 provisions, is eligible to receive a FERS annuity supplement, and therefore would not have been overpaid in estimated interim annuity payments. PFR File, Tab 9 at 9 . As a result, OPM must cancel its final decision and coordinate with the appellant and her former em ploying agency to obtain the documentation and other information necessary to retroactively 4 Both parties also submitted additional documentation on review th at was not submitted below . Specifically, the appellant submitted more recent email correspondence with the FDA/DHHS discussing the calculation of her retirement date , PFR File, Tab 1 at 10-12, OPM submitted documentation in its response regarding how it calculated the appellant’s annuity, PFR File, Tab 5 at 11-13, and the appellant submitted documentation in reply including personnel records, historical retirement calculations from multiple agencies and online platforms, and correspondence regarding her retirement. PFR File, Tab 6 at 11 -36. However, we find that this evidence is either not new or not material , especially now given our consideration of the appellant’s settlement agreement with the DHHS . To the extent that some of these documents were already submitted below, e vidence that is already part of the record is not new evidence that warrants granting review. Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980) . 7 recalculate the appellant’s retirement benefits based on her new separation date of November 30, 2021 .5, 6 ORDER ¶9 We ORDER OPM to cancel its final decision concluding that the appellant was overpaid $2,002.96 in annuity benefits and was not eligible for an annuity supplement . OPM must coordinate with the appellant and the FDA/DHHS regarding the actions and documentat ion necessary to retroactively recalculate the appellant’s retirement benefits based on her separation date of November 30, 2021, as discussed above , and readjudicate her case accordingly . OPM must complete this action no later than 60 days after the date of this decision. ¶10 We further ORDER OPM to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken 5 Because we are ordering OPM to cancel its final decision and recalculate the retirement benefits that the appellant is owed, we need not address the appellant’s remaining argument on review that that she should not be held accountable for her former agency’s failure to properly calculate her years of Federal service to assure she met the requirements for MRA+3 0 retirement and in accordance with the appropriate statutory language and other guidance as outlined in the ini tial decision . PFR File, Tab 1 at 8. 6 In her petition for review, the appellant asked OPM to suspend its collection of the overpayment in the installment payments outlined in OPM’s initial decision and to refund the amounts collected until this matter i s resolved. PFR File, Tab 1 at 5, 8; see also IAF, Tab 3 at 17 . In its response, OPM stated that it suspended its overpayment collection and refunded the appellant $2,002.96 to return her to the status quo ante. PFR File, Tab 5 at 5 , 9-10. In her reply, the appellant explained that, although OPM refunded her $2,002.96, the entire amount of overpayment it expected to collect from her, OPM had actually only collected $807.03 from her. PFR File, Tab 6 at 9; see IAF, Tab 3 at 17. She noted that “there will need to be some accounting done to properly settle [her] accounts.” PFR File, Tab 6 at 9. We believe that resolution of this issue will necessarily come as a result of OPM recalculating the appellant’s retirement benefits. As OPM stated in its response to the Clerk’s order, “[o]nce OPM receives official amended records from the employing agency and recalculates the appellant’s annuity based on a separation date of November 30, 2021, it will compute all annuity paid and due to the appella nt to determine any overpayment/underpayment and will provide the appellant with appropriate due process rights.” PFR File, Tab 8 at 6. 8 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). ¶11 No later than 30 days af ter OPM tells the appellant it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that OPM did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes OPM has not fully carried out the Board’s Order, and should include the dates and results of any communications with OPM. See 5 C.F.R. § 1201.182 (a). NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be fo und 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 O F THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIG HTS7 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Altho ugh we offer the following summary of available appeal rights, the Merit 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights in cluded in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 9 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to f ile within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a pet ition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1) (A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C . 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained w ithin the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 10 http://www.mspb.gov/probono for in formation regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this dec ision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fee s, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, 11 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your 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 case s with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 12 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circui t 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our we bsite at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorne y will accept representation in a given case. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 13 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ANSORGE_LAURIE_V_PH_0845_22_0194_I_1_FINAL_ORDER_2033613.pdf	2023-05-22	null	PH-0845	NP
3,115	https://www.mspb.gov/decisions/nonprecedential/FOREST_THOMAS_L_CB_1205_18_0013_U_1_FINAL_ORDER_2033688.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTEC TION BOARD THOMAS L. FOREST, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Agency , and DEPARTMENT OF HOMELAND SECURITY, Agency. DOCKET NUMBER CB-1205 -18-0013 -U-1 DATE: May 22, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Thomas L. Forest , Metairie, Louisiana, pro se. Robert J. Girouard , Washington, D.C., for the Office of Personnel Management . Ashley Drexel , Washington, D.C., for the Department of Homeland Security. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 The petitioner asks the Board to review the implementation of a regulation of the Office of Personnel Management (OPM) by the Department of Homeland Security’s Customs and Border Protection (CBP) which the petitioner alleges required the commission of a prohibited personnel practice affecting him. For the reasons discussed below, we DISMISS the petition er’s request for lack of jurisdiction. Th is is the final decision of the Merit Systems Pr otection Board in this proceeding. Title 5 of the Code of Federal Regulations, section 1203.12(b) (5 C.F.R. § 1203.12 (b)). DISCUSSION ¶1 The Board has original jurisdiction to review rules and regulations promulgated by OPM. 5 U.S.C. § 1204 (f). The Board is authorized to declare an OPM rule or regulation invalid on its face if the Board determi nes that the provision would, if implemented by an agency, require any employee to commit a prohibited personnel practice as defined by 5 U.S.C. § 2302 (b). 5 U.S.C. § 1204 (f)(2)(A). Similarly, the Board has au thority to determine that an OPM regulation has been inv alidly implemented by an agency if the Board determines that the provision, as implemented, has required any employee to commit a prohibited personnel practice. 5 U.S.C. § 1204 (f)(2)(B). ¶2 The Board’s regulations direct the individual requesting review to provide the following information: a citation identifying the chall enged regulation; a 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 3 statement (along with any relevant documents) describing in detail the rea sons why the regulati on would require, or its implementation has required, an employee to commit a prohibited personnel practice; specific identif ication of the prohibited personnel practice at issue; and a description of the action the requester desires the Board to take. 5 C.F.R. § 1203.11 (b); see Roesel v. Office of Personnel Management, 119 M.S.P.R. 15, ¶ 7 (2012); DiJorio v. Office of Personnel Management , 54 M.S.P.R. 498 , 500 (1992). This information is required for the individual to be able to state a case within the Board’s jurisdiction . 5 C.F.R. § 1203.11 (b)(1). ¶3 Here, the petitioner challenges the CBP’s implementation of 5 C.F.R. § 338.301 , an OPM regulation that governs agencies’ consideration of applicants for appointments to the competitive service. This provision provides that: Agencies must ensure that employees who are given competitive service appointments meet the requirements included in t he Office of Personnel Management’s Operating Manual: Qualification Standards for General Schedule Positions. The Operating Manual is available to the public for review at agency personnel offices and Federal depository libraries, and for purchase from th e Government Prin ting Office. The petitioner contends that the CBP improperly evaluated his self-assessment of his experience in finding that he was not eligible for promotion to a position within his agency for which he had applied . The agency determin ed that his resume did not demonstrate 1 year of equivalent specialized experience at the GS-12 level , which was a minimum qualification for the GS-1801 -13 Enforcement Analysis Specialist position he sought . Regulation Review File (RRF), Tab 17 at 15 -17. The petitioner argues principally that his nearly 2 years of equivalent experience as a Customs and Border Protection Officer at the GS-11 level should have been found qualifying because the position was upgr aded to the GS-12 level after he left it . RRF, Tab 1 at 6-7.3 3 In support of this contention, the petitioner cites guidance from OPM’s Classification & Qualifications General Schedule Qualifications Policies stating that “an employee 4 ¶4 The petitioner contends that the agency’s allegedly erroneous assessment of his past experience was a failure to properly implement section 338.301 and that CBP hiring staff thereby commi tted a prohibited personnel practice under 5 U.S.C. § 2302 (b)(12) . This subsection of section 2302(b) prohibits taking or failing to take any personnel action “if the taking or failure to take suc h action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title.” The petitioner cites as the merit system principle that section 338.301 implements or concerns secti on 2301(b)(1) , relating to selection and advancement of individuals on the basis of relative ability, knowledge and skills after fair competition. RRF, Tab 18 at 4-5. ¶5 However, the petitioner’s assertion that the CBP violated section 338.301 because it i naccurately evaluated his qualifications fails to assert a violation of that provision. The regulation plainly requires agencies to appoint or promote individuals in the competitive service only if they meet the qualification standards stated in the referenced OPM guidelines. The petitioner has not asserted that the individual who was appointed to the position for which he applied failed to meet the qualification requirements for the position. Instead, he is simply appealing his own nonselection bec ause he disagrees with the agency’s assessment of the sufficiency of his experience and believes that the agency erred in finding him ineligible .4 The agency’s action d id not violate the plain language whose position is upgraded as a result of reclassification is considered to meet the qualification requirements of the upgraded position . . . . ” RRF, Tab 1 , Exhibit G. OPM notes in response that the guidance cited applies by its terms only to the occupant of a position at the time of the reclassification. RRF, Tab 1 4 at 11. 4 The petitioner was entitled to challenge his ineligible rating through the agency’s administrative procedures under 5 C.F.R. § 300.104 (b). In fact, he exercised this right and received a final determination of ineligibility from the agency’s Hiring Center. RRF, Tab 17 at 16. 5 of the regulation because it did not place an unquali fied individual in a competitive service position. ¶6 The petitioner has failed to identify any prohibited personnel practice that was required by section 338.301 or to explain why the implementation of the regulation required the commission of a prohibited personnel practice. See 5 C.F.R. § 1203.11 (b)(1). Accordingly, the petitioner’s r equest for review of an OPM regulation as implemented is DISMISSED for lack of jurisdiction. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	FOREST_THOMAS_L_CB_1205_18_0013_U_1_FINAL_ORDER_2033688.pdf	2023-05-22	null	CB-1205	NP
3,116	https://www.mspb.gov/decisions/nonprecedential/BLESSING_CHARLES_C_AT_0831_20_0308_X_1_FINAL_ORDER_2033709.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHARLES C. BLESSING, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency, and NANCY BAKEMAN Intervenor. DOCKET NUMBER AT-0831 -20-0308 -X-1 DATE: May 22, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charles C. Blessing , Shelbyville, Tennessee, pro se. Michael Shipley , Washington, D.C., for the agency. Nancy Bakeman , Lynchburg , Tennessee, pro se. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 FINAL ORDER ¶1 In a July 9, 2021 compliance initial decision, the Board found the Office of Personnel Management (OPM) in noncompliance with the Board’s final decision vacating and remanding OPM ’s reconsideration decision to the extent OPM failed to refund to the appellant contributions that OPM had erroneously withdrawn from his Civil Service Retirement System (CSRS) annuity to fund a former spouse annuity. Blessing v. Office of Personnel Manageme nt, MSPB Docket No. AT-0831 -20-0308 -C-1, Compliance File, Tab 9, Compliance Initial Decision (CID) at 4; Blessing v. Office of Personnel Management , MSPB Docket No. AT - 0831 -20-0308 -I-1, Initial Appeal File, Tab 19, Initial Decision at 1 -5. For the reasons discussed below, we now find OPM in compliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 In the compliance initial decision, the administrative judge found OPM in noncompliance with the Board ’s final decision . CID at 1 -5. Accordingly, he granted the appellant’s petition for enforcement and ordered OPM to take the following actions: (1) refund to the appellant those contributions OPM withdrew from the appellant’s CSRS annuity to fund the for mer spouse annuity at issue, with appropriate interest as provided by law; and (2) take any other administrative action necessary to properly cancel the annuity3 at issue. CID at 4. ¶3 The compliance initial decision informed OPM that, if it decided to take the ordered actions, it must submit to the Clerk of the Board a narrative statement and 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 3 Although the annuity at issue is a former spouse annuity, t he compliance initial decision inadvertently referred to it in several instances as a “survivor” annuity. CID at 1, 3, 4. It is clear that this was a typographical error and that the administrative judge correctly recognized that there was only one annuity at issue. 3 evidence establishing compliance within 35 days from the date the compliance initial decision was issued. CID at 4-5. The compliance initial decision further informed OPM that, if it decided not to take all of the ordered actions, it must file a petition for review of the compliance initial decision. CID at 5. The compliance initial decision also informed the appellant of his option to file a petition for re view of the compliance initial decision . CID at 6. Neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114 . Accordingly, pursuant to 5 C.F.R. § 1201.183 (b)-(c), the administrative judge’s findings of noncompliance have become final, and the appellant’s petition for enforcement has been referred to the Boar d for a final decision on issues of compliance. Blessing v. Office of Personnel Management , MSPB Docket No. AT-0831 -20-0308 -X-1, Compliance Referral File (CRF) , Tab 1. ¶4 On August 19, 2021, the Office of the Clerk of the Board issued an acknowledgment order directing OPM to submit , within 15 calendar days, evidence showing that it had complied with all actions identified in the compliance initial decision . CRF , Tab 1 at 3. The acknowledgment order also notified the appellant that he may respond to any submission from the agency by filing written arguments with the Clerk of the Board within 20 calendar days of the date of service of the agency’s submission. Id. The appellant was cautioned, however, that if he did not respond to OPM’s evidence of compliance within those 20 calendar days, “the Board may assume you are satisfied and dismiss your petition for enforcement.” Id. at 3-4. ¶5 The agency bears the burden of proving that it has complied with a final Board order. Pace v. Office of Personnel Management , 117 M.S.P.R. 49 , ¶ 12 (2011) . Compliance must be supported by relevant, material, and credible evidence. Id. ¶6 On September 3, 2021 , OPM responded to the acknowledgment order by submitt ing evidence that appear s to show compliance with all actions identified in 4 the compliance initial d ecision . CRF , Tab 3. This evidence includes a written statement from OPM indicating that it has taken all actions ordered , as well as applicable supporting documentation (such as a “Paid and Due” calculation and copies of relevant payment history screens). To date, the appellant has not responded to object or refute the evidence submitted by OPM , and we therefore assume that he is satisfied. See Baumgartner v. Department of Housing and Urban Development , 111 M.S.P.R. 86 , ¶ 9 (2009). Accordingly, we find that OPM is in compliance with its obligation s to refund the appellant those contributions OPM withdrew from the appellant’s CSRS annuity to fund the former spouse annuity at issue, with appropriate interest as provided by law , and has properly cancel led the former spouse annuity. ¶7 In light of the foregoing, we find that the OPM is now in compliance and dismiss the appellant’s petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, sec tion 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this 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 inclu ded 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 t ime limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a pe tition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional info rmation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 inv olves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other securi ty. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 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 EEO C via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited p ersonnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of competent jurisdiction.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 com petent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases w ith the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for inf ormation regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case . Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BLESSING_CHARLES_C_AT_0831_20_0308_X_1_FINAL_ORDER_2033709.pdf	2023-05-22	null	AT-0831	NP
3,117	https://www.mspb.gov/decisions/nonprecedential/MARIN_NIGEL_A_SF_0752_17_0530_I_1_FINAL_ORDER_2033802.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD NIGEL A. MARIN, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency. DOCKET NUMBER SF-0752 -17-0530 -I-1 DATE: May 22, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Nigel A. Marin , Fresno, California, pro se. Jacob Mikow and Jennifer Ann Kenney , San Francisco, California, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his involuntary resignation/constructive removal appeal for lack of jurisdiction . On petition for review, the appellant argues that he did not receive proper notice of the jurisdictional requirements, he is entitled to discovery and 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 dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 hearing, his proposed removal could not be substantiated, and he made nonfrivolous allegations that his resignation was compelled by improper agency actions . Generally, we grant peti tions 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, de spite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully consider ing the filings in this appeal, we conclude that 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 follo wing summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding w hich 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 mos t 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 applica ble time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a partic ular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review wit h the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Ru les of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a re presentative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimi nation based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts. gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a r epresentative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MARIN_NIGEL_A_SF_0752_17_0530_I_1_FINAL_ORDER_2033802.pdf	2023-05-22	null	SF-0752	NP
3,118	https://www.mspb.gov/decisions/nonprecedential/BARKER_THOMAS_W_DC_0752_15_1056_I_1_FINAL_ORDER_2033803.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD THOMAS W. BARKER, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DC-0752 -15-1056 -I-1 DATE: May 22, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 M. Jefferson Euchler , Esquire, Virginia Beach, Virginia, for the appellant. Michael E. Hokenson , Esquire, Fort Belvoir, Virginia, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 The appellant has filed a petition for review and the agency has filed a cross petition for review of the initial decision, which sustained the appellant’s removal. Generally, we grant petitions such as these only when: the initial decision contains erron eous 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 dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 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 appea l or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioners have not established any basis under section 1201.115 for granting the petition or the cross petition for review. Therefore, we DENY both the petition for review and the cross petition for review. Except as expre ssly MODIFIED to recognize and apply the proper standards for the appellant’s disability discrimination and equal employment opportunity (EEO) retaliation claims, we AFFIRM the initial decision. BACKGROUND ¶2 The appellant was employed as a Photographer in the agency’s National Ground Intelligence Center (NGIC), a subordinate command of the Army Intelligence Security Command. On September 19, 2014, the agency proposed his removal based on charges of conduct unbecoming a Federal employee and lack of candor. Initial Appeal File (IAF), Tab 5 at 160 -62. In the first charge, the agency alleged that, on or about August 26, 2014, while taking a passport photo of another NGIC employee, the appellant stated words to the effect of , “They are pushing me over the edge . You think they would be more concerned about that with all these shootings.” The agency asserted that the appellant’s statements caused immediate alarm and were particularly disgraceful conduct in light of a very recent shooting incident that had happe ned at Fort Lee, Virginia, as well as several others during the previous months. Id. at 161. In the second charge, the agency alleged that, in his September 5, 2014 statement to the NGIC Commander 3 about his comment to the other NGIC employee, the appella nt claimed that he actually stated words to the effect of, “It seems that NGIC management is trying to push me over the edge. You would think they would be more concerned about this with the Post shootings, and the high incidents of suicide in the Army because of toxic leadership.” The agency asserted that, based on that statement, it was clear that the appellant was attempting to diminish the actual alarming nature of his original comments. Id. In proposing the action, the agency considered the appella nt’s prior 14 -day suspension, also for conduct unbecoming a Federal employee for threatening his supervisor and lack of candor. Id. Following the appellant’s oral reply, id. at 149-50, the agency issued a decision letter sustaining the charges and findin g removal warranted to promote the efficiency of the service , id. at 165 -70. ¶3 On November 17, 2014, the appellant challenged the action by filing an EEO complaint in which he alleged that the action was due to discrimination based on a perceived mental disability and in retaliation for his prior EEO activity, specifically, an earlie r EEO complaint in which he also alleged disability discrimination based on a perceived mental disability. Id. at 27 -30. On July 21, 2015, the agency issued a final agency decision finding no discrimination or retaliation. Id. at 486 -98. On appeal of t hat decision, the appellant denied the charges, claiming that his statements were taken out of context. IAF, Tab 1 at 5. He also renewed his claim that, in taking this action, the agency discriminated against him on the basis of a perceived mental disabi lity, id., and subsequently, he renewed his claim that the agency retaliated against him for his prior EEO activity, IAF, Tab 27 at 5. He requested a hearing. IAF, Tab 1 at 2. ¶4 Thereafter, the administrative judge issued an initial decision. IAF, Tab 3 1, Initial Decision (ID). She sustained the conduct unbecoming charge, finding that, even though the words the appellant admitted saying differed somewhat from the words ascribed to him by the other NGIC employee, the agency was only required to prove the essence of the charge and that, in any case, it had only charged the 4 appellant with stating words “to the effect of.” ID at 6 -10. The administrative judge did not sustain the lack of candor charge, however, finding that, given the context of the day (th e previous base shootings) and the conversation in which the appellant was engaged, the words he used in his September 5, 2014 written statement had essentially the same effect as the words the agency charged him with saying. ID at 10 -12. The administrat ive judge next found that the appellant failed to prove his claims of discrimination based on a perceived mental disability and retaliation for EEO activity. ID at 12 -15. She found that the agency established a nexus between the sustained charge and the efficiency of the service, ID at 15 -16, and that the removal penalty was within the bounds of reasonableness , ID at 18 -21. Accordingly, she sus tained the agency’s action. ID at 1, 21 -22. ¶5 The appellant has filed a petition for review, Petition for Review (PFR) File, Tab 3, to which the agency has responded, PFR File, Tab 5. The agency has filed a cross petition for review, PFR File, Tab 5 , to which t he appellant has responded, PFR File, Tab 7. ANALYSIS The administrative judge correctly sustained the conduct unbecoming charge. ¶6 In his petition for review, the appellant disputes the administrative judge’s sustaining of the conduct unbecoming charge, asserting that it is “absurd” that the conversation he had with the other NGIC employee, which was not int ended or taken as hostile or threatening, should result in removal. PFR File, Tab 3 at 8 -9. As discussed below, we find that the administrative judge properly sustained the charge . ¶7 A charge of “conduct unbecoming” has no specific elements of proof; it i s established by proving that the employee committed the acts alleged in support of the broad label. Canada v. Department of Homeland Security , 113 M.S.P.R. 509, ¶ 9 (2010). An agency is not required to affix a label to a charge of misconduct 5 but may simply describe actions that constitute misbehavior in narrative form and have its discipline sustained if the efficiency of the service suffers because of the misconduct. Otero v. U.S. Postal Service , 73 M.S.P.R. 198 , 202 (1997). Based on a slight inconsistency in the other NGIC employee’s testimony at the hearing and considering the appellant’s consistency and demeanor, the administrative judge found that the agency did not prove that the appellant said verbatim that “[t]hey are pushing me over the edge. You think th ey would be more concerned about that with all these sho otings.” ID at 9 -10. However, because the agency only charged the appellant with stating “words to the effect of,” IAF, Tab 5 at 161, and because the statement he admitted making was close enough to the charged version, the administrative judge found that the agency had proven the essence of the charge, which was all that was necessary , ID at 10. ¶8 The appellant argues that the deciding official actually construed the appellant’s misconduct as threat ening workplace violence and that the Board may not substitute its judgment by considering the charge to be conduct unbecoming. PFR File, Tab 3 at 10 -11. In this regard, the appellant refers to the deciding official’s testimony that he regarded the appel lant’s conduct as “unbecoming” because “[i]t was a threat of workplace, you know, violence.” Hearing Transcript (HT) at 110 -11 (testimony of the deciding official). In determining how adverse action charges are to be construed, the Board will examine the structure and language of the proposal notice. Williams v. Department of the Army , 102 M.S.P.R. 280 , ¶ 5 (2006). Here, the ch arge was conduct unbecoming a Federal employee, and the narrative description of the actions that constituted the charged misconduct explains why the agency deemed the appellant’s statements to be unbecoming a Federal employee. IAF, Tab 5 at 161. That na rrative does not describe the appellant’s statements as threatening. Id. Therefore, despite the deciding official’s lone statement during the hearing, we find that, taken as a whole and considering the entire proposal notice, the agency did not charge th e appellant with making a threat. Pinegar v. Federal Election Commission , 6 105 M.S.P.R. 677 , ¶ 28 (2007) (finding that, when an agency charged an employee with making inappropriate remarks, it was not required to prove that the remarks constituted a threat). We agree with the administrative judge that the agency was not required to prove that the appellant intentionally made a threat under Metz v. Department of the Treasury , 780 F.2d 1001 , 1004 (Fed Cir. 1986).2 ¶9 The appellant also argues that his r emarks do not constitute conduct unbecoming a Federal employee. PFR File, Tab 3 at 9. As noted, in addition to proving that the appellant committed the acts in support of the charge, the agency also must prove that his misconduct adversely impacted the e fficiency of the service. Canada , 113 M.S.P.R. 509 , ¶ 10. Here, the administrative judge found that the appellant’s remarks were in appropriate because a reasonable person might have understood him to be implying that management should cease “pushing” him, and others, or else he, or they, might become violent and that, because the Government has a legitimate interest in ensuring that e mployees do not engage in inappropriate conduct during work hours, there was a nexus between the sustained charge and the imposition of discipline. ID at 15 -16. These findings are supported by the record evidence. HT at 68 (testimony of the proposing of ficial) , 142 (testimony of the Security Officer). It is true that the individual who heard the appellant’s remarks was not concerned that he was going to become immediately violent.3 HT at 51 (testimony of the other NGIC employee). Notwithstanding, the agency was not thereby precluded from taking action against the appellant under this charge because of the way it perceived his 2 The U.S. Court of Appeals for the Federal Circuit held in Metz that, in deciding whether statements constitute threats, the Board is to apply the reasonable person criterion, considering the listeners’ reactions and apprehensions, the wording of the statements, the speaker’s intent, and the attendant circumstances. Metz , 780 F.2d at 1002 . 3 However, after the other NGIC employee told his supervisor about the comment, he was directed to report the matter to the Secur ity Division, which he did, HT at 43 (testimony of the other NGIC employee), and, according to him, that direction itself caused him concern , IAF, Tab 5 at 205. 7 remarks, especially considering his acknowledgment that he was upset by work pressures that day and given the climate within the workplace at the time, specifically, the general awareness of the recent shooting at Fort Lee and other such shootings. Under the circumstances, we agree with the administrative judge that the agency proved the essence of the charge of conduct unbecoming , Cole v. Department of the Air Force , 120 M.S.P.R. 640 , ¶ 8 (2014), including showing that the appellant’s conduct adversely impacted t he efficiency of the service, Canada , 113 M.S.P.R. 509 , ¶ 10. The administrative judge correctly did not sustain the lack of candor c harge. ¶10 In its cross petition for review, the agency argues that the appellant’s September 5, 2014 statement to the NGIC Commander was inconsistent with his prior statement and establishes a lack of candor because it reflected, on the appellant’s part, an a ttempt to minimize or mischaracterize the nature of his actual statements on or about August 26, 2014. PFR File, Tab 5 at 13. As discussed below, we find no error in the administrative judge’s conclusion regarding the lack of candor charge and thus deny the agency ’s cross petition for review. ¶11 A charge of lack of candor requires proof of the following elements: (1) that the employee gave incorrect or incomplete information; and (2) that he did so knowingly. Ludlum v. Department of Justice , 278 F.3d 1280 , 1284 (Fed. Cir. 2002); Fargnoli v. Department of Commerce , 123 M.S.P.R. 330, ¶ 17 (2016). The administrative judge did not sustain this charge, reasoning that the appellant’s statement to the other agency employee and his subsequent statement to the NGIC Commander had th e same effec t or meaning. ID at 11 -12. We agree and find that, under the circumstances, the appellant did not, in his September 5, 2014 statement, knowingly give incorrect or incomplete information so as to support a lack of candor charge. Fargnoli , 123 M.S.P.R. 330 , ¶ 17. 8 The administrative judge properly found that the appellant failed to establish his affirmative defenses. ¶12 We first address the appellant’s claim that the agency discriminated against him because it regarded him as suffering from a mental disability. On review, the appellant argues only that this affirmative defense should be sustained because there is no cred ible basis for the agency’s taking this action unless it was based on disability discrimination. PFR File, Tab 3 at 9. Based on our review, we agree with the administrative judge that the appellant failed to prove his affirmative defense. ¶13 The Board adju dicates 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 by the Americans with Disabilit ies Act Amendments Act of 2008. Id. To prove disability discrimination under the ADA, the appellant must establish that he is an individual with a disability as that term is defined in the ADA and Equal Employment Opportunity Commission regulations. Thome v. Department of Homeland Security , 122 M.S.P.R. 315 , ¶ 24 (2015). He may prove that he has a disability by showing 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); Thome , 122 M.S.P.R. 315 , ¶ 24; 29 C.F.R. § 1630.2 (g)(1). It is the third category that is at issue in this case. ¶14 The administrative judge correctly found that an individual meets the requirement of “being regarded as having such an impairment” if he establishes that he has been subjected to a prohibited ac tion because of an actual or perceived physical or mental impairment that is not both “transitory and minor.” ID at 13; see Southerland v. Department of Defense , 117 M.S.P.R. 56, ¶ 26 (2011) (citing 9 42 U.S.C. § 12102 (3), 29 C.F.R. §§ 1630.2 (g)(1)(iii), 1630.2( l)(2)) , overruled on other grounds by Pridgen , 2022 MSPB 31, ¶ 47; see also 29 C.F.R. § 1630.2 (j)(2). The administrative judge addressed the appellant’s argument that the agency perceived him as disabled because “he was sent to a fitness for duty doctor, an [Employee Assistance Program (EAP) ] counselor, and two psychiatrist[s].” ID at 12; IAF, Tab 4 at 5. The administrative judge also considered the testimony of the appellant’s second -line supervisor during the time of the misconduct that formed the basis for his 2012 suspension to the effect that (1) he had concerns at that time that the appellant may have potentially harmed himself or others, but (2) although he did not direct the appellant to see a doctor at the Fort Belvoir Community Hospital, the appellant provided him with a report from a doctor wh o, after a brief mental health consultation, concluded that the appellant did not pose a threat, and (3) the appellant told him that he had sought help from the EAP. ID at 12; HT at 14-15 (testimony of the second -line supervisor). The administrative judg e also considered the proposing official’s testimony that he reviewed a report that the appellant provided him from a psychiatrist who, after a 2013 examination in connection with the suspension of the appellant ’s security clearance, found no indications o f any significant issues with his mental health. ID at 14; HT at 61-62 (testimony of the proposing officia l); IAF, Tab 4 at 13 -31. Under the circumstances, we agree with the administrative judge that the appellant failed to prove that any agency official believed he had a mental impairment that was not minor and transitory and that he thereby failed to establish that he was disabled.4 ID at 14. 4 Because the appellant failed to show that he was disabled, he was not required to show that h e was an otherwise qualified individual with a disability. Haas v. Department of Homeland Security , 2022 MSPB 36, ¶¶ 28-29. However, even if the appellant did establish that he was disabled by virtue of the agency’s perception of him as such and even though it appears that he was qualified because he was able to perform his duties as a Photographer, the administrative judge correctly f ound that the appellant failed to show that any such prohibited consideration was a motivating factor in his removal. Id., ¶ 31; ID at 13 -14. Accordingly, we do not reach the question of whether 10 ¶15 We next address the appellant’s claim on review that the agency retaliated against him based on his prior EEO a ctivity. PFR File, Tab 3 at 9. As with his claim of disability discrimination, the appellant argues on review only that this affirmative defense should also be sustained because there is no credible basis for the agency’s taking this action unless it was based on a perception that he needed to be punished for having raised disability discrimination issues in his earlier EEO complaint. PFR File, Tab 3 at 9. ¶16 In analyzing this claim, the administrative judge applied the standard for an affirmative defense of discrimination or retaliation under 42 U.S.C. § 2000e -16, i.e., Title VII discrimination or retaliation claims involving race, color, religion, sex, or national origin. In so doing, the administrative judge found that the appellant failed to show that his engagement in protected activities was a motivating factor in the per sonnel action. ID at 14 -15. While we agree with the administrative judge’s conclusion as to this retaliation claim, we modify her analysis to reflect the proper causation standard. ¶17 Complaining of disability discrimination is an activity protected by t he ADA under its anti -retaliation provision which prohibits discriminating against any individual “because such individual” has engaged in protected activity. 42 U.S.C. § 12203 (a); Pridgen , 2022 MSPB 31, ¶ 44. The Board recently examined the appropriate standard of proof for such cases and clarified that the “but-for” causation standard applies to ADA retaliation claims. Pridgen , 2022 MSPB 31, ¶¶ 45-47. That standard requires proof that the unlawful retaliation would not have occurred in the absence of the alleged action or actions of the employer. University of Texas Southwestern Medical Center v. Nassar , 570 U.S. 338 , 360 -62 (2013). ¶18 Turning back to the appellant’s argument on review, we are not persuaded that the only plausible explanation for his removal was his 2013 EEO complaint discrimination was a “ but-for” cause of the removal action. See Pridgen , 2022 MSPB 31, ¶¶ 40 -42 11 in which he raised disability discrimination. PFR File, Tab 3 at 9. The administrative judge found tha t the agency’s selected penalty was within the bounds of reasonableness , and, as set forth below, we agree. Other than holding the appellant to the lower motivating factor standard, we discern no error in the administrative judge’s reasoning. Therefore, we affirm the administrative judge’s finding, as modified, to find that the appellant did not prove that his protected activity was a “but-for” ca use of his removal. The administrative judge properly found that removal is a reasonable penalty for the susta ined charge.5 ¶19 On review, the appellant argues that the administrative judge erred in her penalty analysis by relying on the potential of the appellant’s remarks to be taken as threatening when the agency did not charge him with making a threat and that his remarks themselves do not support removal. PFR File, Tab 3 at 12 -13. As discussed below, we disagree. ¶20 When, as here, not all of the agency’s charges are sustained, the Board will consider carefully whether the sustained charge merited the penalty impose d by the agency. Suggs v. Department of Veterans Affairs , 113 M.S.P.R. 671, ¶ 6 (2010). The Board may impose the maximum reasonabl e penalty for the sustained misconduct, so long as the agency has not indicated in either its final decision or in the proceedings before the Board that it desires that a lesser penalty be imposed on less than all of its charges.6 Id. However, in its con sideration of 5 The appellant did not challenge on review the administ rative judge’s finding that the agency established that a nexus exists between the charged misconduct and the efficiency of the service. PFR File, Tab 3. We discern no basis upon which to dispute this finding. Parker v. U.S. Postal Service , 819 F.2d 1113 , 1116 (Fed. Cir. 1987) (finding a direct connection to the efficiency of the service when the misconduct occurred at work). 6 The agency did n ot indicate in its letter of decision or during proceedings before the Board that it desired that a lesser penalty be imposed on fewer charges. IAF, Tab 5 at 165. 12 the penalty, the Board may not disconnect its penalty determination from the agency’s managerial will and primary discretion in disciplining employees. Id. ¶21 In considering the penalty for the conduct unbecoming charge, the administrative judg e first considered the nature and seriousness of the misconduct and its relation to the appellant’s duties and responsibilities, including whether the offense was intentional or was frequently repeated. ID at 17. She credited the other NGIC employee’s te stimony that he did not consider the appellant’s remarks to be threatening, but rather concerning, id.; HT at 43 (testimony of the other NGIC employee), and the proposing official’s testimony that, when he heard what the appellant had said, he did not know if he was going to become violent but that he took the comments as an implied threat and that the remarks were not conducive to a good work environme nt and not good for morale. ID at 17-18; HT at 67 -68, 77 (testimony of the proposing official). Although the administrative judge credited the appellant’s testimony that he had no intent to make any sort of threat, she found that a reasonable person in the other NGIC employee’s situation might have interpreted the remarks as a threat and found that, when the Security Officer and the appellant’s superiors learned of the remarks,7 they reasonably took them as a threat, not only because of the words themselves but also because of the appellant’s past record. ID at 18. ¶22 We have found that the agency charged the appellant with conduct unbecoming and not with making a threat. Notwithstanding, the threatening nature of the appellant’s comments may be an appropriate consideration in determining the penalty. Brough v. Department of Commerce , 119 M.S.P.R. 118, ¶ 12 n.2. (2013); ID at 6 -7. Therefore, we find that the administrative judge did not err in her review of the reasonableness of the a gency -imposed penalty when she considered what the agency perceived as the threatening nature of the appellant’s comments. 7 The reactions of the appellant’s supervisors and the Security Officer are no less valid simply because they did not hear the appellant’s statements firsthand. 13 ¶23 The administrative judge also considered the appellant’s past record, which included a 14 -day suspension in 2013 for threatening to k ill his supervisor.8 She also considered the appellant’s challenge to the agency’s reliance on the prior suspension but found that it was an aggravating factor in this case because it met the Bolling criteria9 and because, after reviewing the documentary evidence, she was not left with the firm conviction that a mistake had been committed.10 ID at 18-21. We agree and find that the administrative judge did not err in considering the appellant’s past record as an aggravating factor in the instant action. W e note further that in the letter of decision in that prior suspension, the agency specifically warned the appellant that, in the future, making inappropriate comments, even in the heat of the moment, would not be tolerated. IAF, Tab 5 at 449; see Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 (1980) (finding that, in reviewing an agency -imposed penalty, it is appropriate to 8 After conducting an investigation into this alleged statement, the agency concluded that the appellant had, in fact, expressed thoughts of wanting to kill his supervisor, that in denyin g it, he exhibited a lack of candor during the investigation, and that his supervisor had not created a hostile work environment, as the appellant had claimed. IAF, Tab 5 at 366. The agency also indefinitely suspended the appellant pending a final decisi on on his security clearance but subsequently rescinded the action and returned him to the status quo ante. The appellant’s Board appeal of that action was dismissed as moot. Barker v. Department of the Army , MSPB Docket No. DC -0752 -13-0236 -I-1, Initial Decision at 2 (June 14, 2013) ; IAF, Tab 5 at 432. 9 The Board’s review of a prior disciplinary action is limited to determining whether that action is clearly erroneous, if the employee was informed of the action in writing, the action is a matter of recor d, and the employee was permitted to dispute the charges before a higher level of authority than the one that imposed the discipline. Bolling v. Department of the Air Force , 9 M.S.P.R. 335 , 339 -40 (1981). 10 The administrative judge noted her disagreement with the proposing official’s statement that the appellant’s remarks to the other NGIC employee were his second instance of making a threatening statement in less than 2 years, finding that the agency did not charge the appellant with making a threat, but she nevertheless found that his statements were reasonably interpreted as a threat by his superiors and others and that he should have known that his remarks could have been interpreted that way and caused a disruption to the workplace. ID at 21. 14 consider the clarity with which the employee has been warned about the conduct in question). ¶24 Finally, we find no error in the agency’s, and the administrative judge’s, consideration of the circumstances surrounding the appellant’s remarks, including the tim ing. As noted, there had been a shooting at Fort Lee just days before and several other such shootings in the recent pa st. IAF, Tab 5 at 469 -84. The administrative judge found based on the testimony of the other NGIC employee, the appellant, and the pro posing official that those shootings were and had been, understandably, a topic of conversation within the workplace. ID at 12 n.3. Bearing in mind that the Board’s function regarding its review of an agency’s penalty selection is not to displace managem ent’s responsibility but to determine whether it exercised its judgment within the tolerable bounds of reasonableness, Neuman v. U.S. Postal Service , 108 M.S.P.R. 200, ¶ 21 (2008), we agree with the administrative judge that the sustained charge merits the removal penalty imposed by the agency. NOTICE OF APPEAL RIG HTS11 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 77 03(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the followin g summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding whic h cases fall within their jurisdiction. If you wish to seek review of 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 indi cated in the notice, the Board cannot advise which option is most appropriate in any matter. 15 this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that f orum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 16 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposi tion of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this dec ision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fee s, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 17 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEO C via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited p ersonnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of competent jurisdiction.12 The court of appeals must receive your petition for 12 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 18 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for info rmation regarding pro bono representation for Merit Systems Protection Board appellants before the 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/Court Websites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BARKER_THOMAS_W_DC_0752_15_1056_I_1_FINAL_ORDER_2033803.pdf	2023-05-22	null	DC-0752	NP
3,119	https://www.mspb.gov/decisions/nonprecedential/MOTA_WANDA_D_AT_831M_17_0100_X_1_FINAL_ORDER_2033180.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD WANDA D. MOTA, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER AT-831M -17-0100 -X-1 DATE: May 19, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Wanda D. Mota , Miami, Florida, pro se. Tynika Faison Johnson , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 The appellant has filed a petition for enforcement of the administrative judge’s order in her appeal, which challenges the collection of a retirement annuity overpayment by the Office of Personnel Management (OPM). For the reasons discussed below, we find that OPM is in compliance and DISMISS the petition for enforcement. DISCUSSIONS OF ARGUMENTS AND EVIDENCE ON REVIEW ¶2 The appellant filed an appeal to contest an OPM decision that determined she had received a Civil Service Retirement Service (CSRS) disability retirem ent annuity overpayment totaling $14,435.82 and denied her request for a waiver of collection of the overpayment. Mota v. Office of Personnel Management , MSPB Docket No. AT-831M -17-0100 -I-1, Initial Appeal File (IAF), Tab 1. In a September 28, 2017 initi al decision, the administrative judge found that OPM failed to meet its burden of establishing the amount of the overpayment, and he therefore vacated OPM’s decision and remanded the appeal to OPM for further consideration. IAF, Tab 22, Initial Decision ( ID). The administrative judge ordered OPM to: (1) recompute the appellant’s disability retirement annuity as of the date she would have been entitled to the annuity after her Office of Workers’ Compensation Programs (OWCP) benefits terminated and also as of the later date of her separation from the U.S. Postal Service; (2) determine the effect that the election of each these alternatives would have on the appellant’s monthly annuity and the amount of any resulting overpayment in each case; (3) notify the appellant of its determinations and provide her the opportunity to elect one of the annuity commencement dates ; and (4) if the appellant’s election resulted in an overpayment, afford the appellant the opportunity to contest the overpayment and to request a waiver, a compromise, lower installment payments, or a voluntary payment agreement. ID at 7. The initial decision became the final decision of the Board after neither party filed an administrative petition for review. ID at 9. 3 ¶3 On February 13, 2018, the appellant filed a petition for enforcement of the Board’s final decision, alleging that she had not received any correspondence from OPM. Mota v. Office of Personnel Management, MSPB Docket No. AT - 831M -17-0100 -C-1, Compliance File (CF), Tab 1. In a March 19, 2018 compliance initial decision, the administrative judge granted the appellant’s petition for enforcement, finding that OPM failed to establish compliance with the Board’s order and or dering OPM to submit to the Clerk of the Board a narrative explanation regarding the status of its compliance. CF, Tab 3, Compliance Initial Decision (CID). ¶4 On October 1, 2019, OPM informed the Board that it had complied with the Board’s final decision, attaching a September 26, 2019 annuity election letter it had sent to the appellant informing her of the “corrected and final figures.” Mota v. Office of Personnel Management , MSPB Docket No. AT -831M -17-0100 -X-1, Compliance Referral File (CRF), Tab 9.3 Specifically, the letter informed the appellant that she had the option to commence her CSRS disability annuity on her separation date of October 2, 2012, or on her last day of pay (i.e., the last OWCP payment) of October 13, 2019. Id. The letter reflect ed that electing to commence her annuity on her separation date would result in a gross monthly annuity of $2,712 and an overpayment of $23,019.25, while electing to commence her annuity on her last day of pay would result in a gross monthly annuity of $2, 473 and an underpayment of $1,571.85. Id. On October 29, 2019, OPM notified the Board that the appellant had made an election regarding the commencement date of her annuity and provided a copy of the appellant’s completed election form. CRF, Tab 11. 3 Previously, on March 28 and August 6, 2018, OPM notified that Board that it had complied with the Board’s final decision and provided copies of two annuity election letters —dated March 9 and August 6, 2018, respectively —informing the appellant of her two possible annuity commencement dates and the resulting annuity and overpayment amounts for each date. CRF, Tabs 1, 7. 4 ¶5 As described above, OPM’s October 1, 2019 compliance submission reflects that it has carried out the actions specified in the Board’s final decision — namely, to recalculate the appellant’s disability retirement annuity based on her last day of pay and on her separation date and to provide her the opportunity to elect one. CRF, Tab 9. As the appellant has not challenged this evidence of compliance, we assume she is satisfied. See Baumgartner v. Department of Housing and Urban Development , 111 M.S.P.R. 86 , ¶ 9 (2009). ¶6 In light of the foregoing, we find that OPM has now complied with the Board’s final order and dismiss the appella nt’s petition for enforcement.4 This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183 (c)(1)). NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time lim it for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate 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 Although the appellant’s election resulted in an overpayment, CRF, Tab 11 at 4, OPM has not provided evidence reflecting that it has aff orded the appellant the opportunity to contest the overpayment and to request a waiver, a compromise, lower installment payments, or a voluntary payment agreement , as required by the Board’s final decision, ID at 7. Nonetheless, as the appellant has not c hallenged OPM’s compliance in this regard, we do not find that its failure to provide such evidence precludes a finding of compliance. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights inclu ded in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 jurisdiction. If you wish to seek review of t his final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact t hat forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit , you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in sec uring pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants befor e the Federal Circuit. The 6 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option app lies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a di sposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your represent ative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, n ational origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 7 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 com petent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases w ith the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 8 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MOTA_WANDA_D_AT_831M_17_0100_X_1_FINAL_ORDER_2033180.pdf	2023-05-19	null	AT-831M	NP
3,120	https://www.mspb.gov/decisions/nonprecedential/MADISON_JOHN_AT_0714_20_0333_X_1_FINAL_ORDER_2033191.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JOHN MADISON, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0714 -20-0333 -X-1 DATE: May 19, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Willie C. Darrisaw , Augusta, Georgia, for the appellant. W. Robert Boulware , Esquire, Montgomery, Alabama, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 After the appellant appealed to the Merit Systems Protection Board challenging his removal by the agency , the parties reached a settlement agreement resolving the disputed issues , and the agreement was included in the Board ’s record for enforcement p urposes in the decision dismissing the appeal . The case is now before the Board on the appellant’s July 8, 2021 petition for enforcement alleging that the agency breached the settlement agreement by failing to appoin t him to the position specified by that agreement. For the reasons discussed below, we find the agency in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 On June 9, 2020, the administrative judge dismissed as settled appellant’s appeal of his removal , accepting the settlement agreement into the record for enforcement . Madison v. Department of Veterans Affairs , MSPB Docket No. AT - 0714 -20-0333 -I-1, Initial Appeal File (IAF), Tab 25, Initial Decision. In pertinent part, the settlement agr eement required the agency to, within 30 days of the execution date of the settlement agreement, place the appellant in the position of Social Work Administrative Officer. IAF, Tab 24 at 5. The initial decision became the final decision of the Board when neither party filed a petition for review. ¶3 On July 8, 2021, the appellant filed a petition for enforcement of the settlement agreement. Madison v. Department of Veterans Affairs , MSPB Docket No. AT -0714 -20-0333 -C-1, Compliance File (CF), Tab 1. The app ellant asserted that the agency placed him in the position of Administrative Assistant, not Social Work Administrative Officer, and that this position paid him less than he would have received in the Social Work Administrative Officer position. CF, Tab 1 at 3. The agency admitted that the Administrative Officer position was at the GS-7 level, while the Social Work Administrative Officer position was at the GS-9 level. The agency asserted that appellant had been given a choice of these 3 positions and had selected the Administrative Officer position, but admitted that it had not informed the appellant of the grade level difference. See CF, Tab 7, Compliance Initial Decision (CID) at 2. ¶4 On September 3, 2021, the administrative judge issued a compliance initial decision grant ing the appellant’s petition, finding that the agen cy was not in compliance because it had failed to place the appellant in the position of Administrative Officer at the GS -09, step 10 level, as specified by the agreemen t. The administrative judge ordered the agency within 20 days to retroactively restore the appellant to that position effective June 29, 2020, until July 4, 2021 , and to pay appropriate back pay and benefits for that time period .3 CID at 5. ¶5 The administr ative judge informed the agency that, if it decided to take the actions ordered in the compliance initial decision, it must submit to the Clerk of the Board a narrative statement and evidence establishing compliance. CID at 7-8. In addition, he informed both parties that they could file a petition for review of the compliance initial decision if they disagreed with the findings therein. CID at 7-8. Neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114 . As such, pursuant to 5 C.F.R. § 1201.183 (b)-(c), the administrative judge’s findings of noncompliance became final, and the appellant’s petition for enforcement was referred to the Board for a final decision on issues of compliance. See Madison v. Department of Veterans Affairs , MSPB Docket No. AT -0714 -20-0333 -X-1, Compliance Referral File (CRF), Tab 1. ¶6 The Board issued a n acknowledgment order on October 15, 2021, with a Notice to Agency requiring the agency to submit within 15 days evidence showing that it ha d complied with all actions identified in the CI D. The order also included a Notice to Appellant that the appellant may respond to any 3 The agency had promoted him to the agreed -upon position effective July 4, 2021. See CID at 2. 4 submission from the agency by filing arguments with the Clerk of the Board within 20 calendar d ays of the date of service of the agency’s evidence of compliance. The order notified the appellant that “[i]f you do not respond to the agency’s evidence of compliance within 20 days, the Board may assume you are satisfied and dismiss your petition for enforcement. ” CRF, Tab 1 at 2 -3. ¶7 On October 21, 2021, the agency submitted evidence that shows the appellant’s appoint ment to the Administrative Officer GS 9, Step 10 position was made retroactive to June 29, 2020. The Standard Form 50 Notif ication of Personnel Action cancelled the previous action , which had delayed his promotion to this level to July 4, 2021. The agency’s evidence also includes agency emails that state the appellant received his resulting retroactive pay on September 23, 2021. CRF, Tab 2 at 4 -8. ¶8 This agency evidence on its face shows that the agency has complied with its obligation to place the appellant i n the correct position, but does not conclusively demonstrate that the agency correctly calculated and paid back pay . However, the appellant has not made any reply to the agency’s Octo ber 21, 2021 submission , and many more than 20 days have elapsed since he was served with it. Accordingly, we assume that the appellant is satisfied with the agency’s action, and we therefore dismiss the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicia l review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Ci rcuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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 ou r website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any att orney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calen dar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer a nd to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the 7 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decisio n. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washingt on, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with th e U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 cour t of appeals of competent jurisdiction expired on 8 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federa l Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visi t our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblow er reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MADISON_JOHN_AT_0714_20_0333_X_1_FINAL_ORDER_2033191.pdf	2023-05-19	null	AT-0714	NP
3,121	https://www.mspb.gov/decisions/nonprecedential/BELLE_KEISHA_SF_0752_17_0280_I_1_FINAL_ORDER_2033305.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KEISHA BELLE, Appellant, v. DEPARTMENT OF THE AI R FORCE, Agency. DOCKET NUMBER SF-0752 -17-0280 -I-1 DATE: May 19, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Neil C. Bonney , Esquire , Virginia Beach, Virginia, for the appellant. Larry Pruitt , Joint Base Andrews, Maryland, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained the appellant’s removal. For the reasons discussed below, we GRANT the appe llant’s petition for review . We REVERSE the portion of the initial decision that sustained the removal, and we AFFIRM the administrative judge’s 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 findings on the appellan t’s affirmative defense . The removal action is NOT SUSTAINED. BACKGROUND ¶2 Effective May 29, 2016, the appellant was reassigned from her position as a Child and Youth Programs Training and Curriculum Specialist in Japan to the same position in Alaska as a resolution of her equal employment opportunity (EEO) case against agency officials in Japan. Initial Appeal File (IAF), Tab 6 at 11, Tab 22, Hearing Compact Disc (HCD) at 09:00 -11:00 (testimony of Civilian Personnel Officer, Joint Base Elmerdorf -Richards on (CPO -JBER)).2 The appellant reported for duty in Alaska on June 13, 2016, at which time she completed a statement of conviction form. IAF, Tab 5 at 4, Tab 19 at 62. That form required her to disclose any arrests, charges, or convictions for a crime involving a minor , drugs, or alcohol. IAF, Tab 5 at 4. Although the form advised that the agency “is required to request a State and Criminal History Repository Check as a condition of employment,” there is no indication that the agency completed a new background investi gation or suitability adjudication for the appellant after her reassignment . IAF, Tab 5 at 4 ; HCD at 34:00 -35:00 (testimony of CPO -JBER) . ¶3 On August 4, 2016, the appellant’s first -line supervisor notified the appellant, and the rest of her team, that the a gency was replacing the “simpler” statement of conviction form with the Department of Defense (DD) Form 2981 , Basic Criminal History and Statement of Admission .3 IAF, Tab 4 at 34. The 2 According to the appellant’s deposition testimony, she was reassigned from Japan to Fort Myer, where she was terminated from her position for “[l]ying on [her] [F]ederal application.” IAF, Tab 19 at 61. However, due to a successful EEO case regarding her employment in Japan, the agency agreed to reassign her to Alaska. HCD at 10:00 -18:00 (testimony of CPO -JBER ). 3 The statute authorizing DD Form 2981 provides that “[a]ny conviction for a sex crim e, an offense involving a child victim, . . . a drug felony, . . . [or] a crime other than a sex 3 appellant’s first- and second -line supervisors explained to her that s he was required to complete the form , instructed her to complete it, and warned her that failure to do so may negatively impact her background check. Id. at 30 -34. However, t he appellant refused. Id. at 31. On September 6, 2016, the appellant’s second -line supervisor detailed her from her “current position working with and around children” because of her failure to complete the form. Id. at 30. ¶4 On November 30, 2016, the appellant’s first -line supervisor proposed the appellant’s removal based on a singl e charge of failure to maintain a condition of employment. Id. at 12 , 28. The charge was based on her refusal to complete a DD Form 2981. Id. at 28 . The specification in suppo rt of the charge and the background information explained that she was requir ed to meet the background check requirements at all times , as outlined in Department of Defense Instruction 1402.05, Enclosure 3 , and Air Force Instruction 34 -144, chapter 9.6 and 9.6.5, and her failure to complete a DD Form 2981 prevented her from satisfy ing that requirement . Id. The deciding official sustained the charge, as specified, and removed the appellant, effective March 3, 2017. Id. at 12 -14. ¶5 The appellant filed this appeal of her removal, in which she disputed the agency’s charge. IAF, Tab 1 at 6. S he argued that a background check wa s the condition of her employment, whereas completing a DD Form 2981 was not. IAF, Tab 18 at 5. She claimed that, to fail the actual condition of her employment, the agency needed to issue her a negative background check or a negative suitability determination, neither of which occurred . Id. She further argued that she was n ot required to complete a DD Form 2981 because it was a voluntary form used for “pre -employment screening,” and she already was employed by the agency. Id. She alleged that her removal was in retaliation for her prior EEO activity and claimed that the penalty of removal was unreas onable. IAF, Tab 1 at 6. crime . . . if it bears on an individual’s fitness to have responsibility for the safety and well -being of children” is relevant to a criminal history check . 34 U.S.C. § 20351 (c). 4 ¶6 After holding the appellant’s requested hearing, the administrative judge issued an initial decision affirming her removal. IAF, Tab 23, Initial Decision (ID) at 1, 17. In sustaining the agency’s charge of failure to maintain a condition of employment, the administrative judge found that a completed DD Form 2981 was a condition of the appellant’s employment because it was a necessary part of the backgr ound check process. ID at 10-11. She further found that the appellant failed to meet that condition, even though she was on notice of the consequences of that failure and had a reasonable opportunity to comply. ID at 11 -12. The administrative judge also concluded that the appellant did not prove her EEO reprisal affirmative defen se. ID at 12 -15. Finally, the administrative judge found that there was a nexus between the sustained charge and the efficiency of the service and that the penalty of removal was within the bounds of reasonableness. ID at 12, 16. ¶7 The appellant has filed a petition for review challenging the administrative judge’s findings that the agency proved its charge.4 Petition for Review (PFR) File, Tab 1 at 4-10. The agency has filed a response, to which the appellant has replied. PFR File, Tabs 3 -4. 4 The appellant has not challenged the administrative judge’s findings as to her affirmative defense. In that regard, t he initial decision reflects that the administrative judge considered the evidence as a whole, drew appropriate inferences, and made accurate, well -reasoned findings. Accordingly, we do not disturb those findings. See Dunn v. Department of the Air Force , 96 M.S.P.R. 166 , ¶ 9 (2004) (declining to disturb the administrative judge’s factual findings and determination that the agency failed to establish two of its specification s because the initial decision reflect ed that she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclu sions on issues of credibility), aff’d per curiam , 139 F. App’x. 280 (Fed. Cir. 2005 ). Furthermore, b ecause the appellant has not challenged the administrative judge’s finding that she failed to prove that her prior EEO activity was a motivating factor in the agency’s decision to remove her, we do not reach the question of whether retaliation was a “but -for” ca use of the removal action. See Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶ 22 (citing Babb v. Wilkie , 589 U.S. ___, 140 S. Ct. 1168 , 1177 -78 (2020)). 5 DISCU SSION OF ARGUMENTS ON REVI EW ¶8 To sustain a charge of failure to fulfill a condition of employment , the agency must prove that the requirement at issue is a condition of employment and that the appellant failed to meet that condition. Gallegos v. Department of t he Air Force , 121 M.S.P.R. 349 , ¶ 6 (2014) . Absent evidence of bad faith or patent unfairness, the Board defers to the agency’ s requirements that must be fulfilled for an individual to be appointed to or to retain her particular position .5 Id. It is undisputed that, as a condition of employment, the appellant was required to meet background check requirements at all times. ¶9 We find, contrary to the initial decision, that the appellant’s failure to complete a DD Form 2981 did not prevent her from satisfying that condition of employment. First, while the appellant’s supervisors did instruct her to fill out the form and told her i t was “required,” the form itself expressly states that completion of the form is “voluntary,” and the Department of Defense ’s policy similarly states that the form is “voluntary.” IAF , Tab 4 at 40. It would be nonsensical to charge the appellant with failure to meet a condition of employment based on her failure to complete a “voluntary” form.6 If, on the other hand, completion of the form was in fact necessary to meet background 5 The administrative judge construed the Board’s case law as requiring that the agency prove an add itional element for a failure to meet a condition of employment charge: “ to the extent that her failure to meet the condition was within the agency’s control, the appellant was afforded a reasonable opportunity to meet the condition .” ID at 9. While this differs slightly from the Board’s recitation of the elements of this charge as set forth in Gallegos , 121 M.S.P.R. 349 , ¶ 6, that consideration, and the administrative judge’s accompanying analysis, is relevant to determining whether the agency’s condition of employment was patently unfair. 6 Under the circumstances, the agency might have properly charged the appellant with failure to follow supervisory instructions . However, the Board is required to review the agency’s decision on an adverse action solely on the grounds invoked by the agency and may not substitute what it considers to be a more adequate or proper basis. Fargno li v. Department of Commerce , 123 M.S.P.R. 33 0, ¶ 7 (2016). 6 check requirements, the agency should have changed the form and its policy to so indicate. ¶10 Moreover, the record reflects that there were other components to the background check that could have been conducted without the completion of a DD Form 2981, including a F ederal Bureau of Investigation criminal history background check, a review of state records, and a fingerprint check. IAF, Tab 5 at 15 . There is no indication that the agency took these measures or that it actually completed a background check or issued a suitability determination before removing the appellant . Given the agency’s own failure to complete the background check process, it is precluded from charging the appellant with failing to meet the background check requirements that were a condition of her employment . According ly, we do not sustain the removal acti on. ORDER ¶11 We ORDER the agency to cancel the removal action and re instate the appellant effective March 3, 2017. See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶12 We also ORDER the agenc y 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, in terest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶13 We further ORDER the agency to tell the appellant promptly in writing when it believes it ha s fully carried out the Board’s Order and of the actions it has 7 taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶14 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 appel lant 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 c ommunications with the agency. 5 C.F.R. § 1201.182 (a). ¶15 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Def ense 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 documentati on necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60 -day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNE Y 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 CALENDA R 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. 8 NOTICE OF APPEAL RIG HTS7 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 ca ses fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable tim e limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that f orum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 7 Since the issuance of the initial decision in this matter, the Boar d may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 9 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposi tion of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If yo u have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 10 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed thro ugh the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your d iscrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washi ngton, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW 12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 11 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no chal lenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review e ither with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 releva nce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals fo r the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 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. 12 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx. NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐ 2) 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 se paration is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leav e ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decisi on. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amoun ts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1 -7 above. The following information must be included on AD -343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a. Must provid e same data as in 2, a -g above. b. Prior to conversion computation must be provided. c. Lump Sum amount of Settlement, and if taxable or non -taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Ope rations at 504 -255-4630.	BELLE_KEISHA_SF_0752_17_0280_I_1_FINAL_ORDER_2033305.pdf	2023-05-19	null	SF-0752	NP
3,122	https://www.mspb.gov/decisions/nonprecedential/REDDING_STEPHANIE_CB_1205_21_0015_U_1_FINAL_ORDER_2033364.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD STEPHANIE REDDING, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER CB-1205 -21-0015 -U-1 DATE: May 19, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Stephanie Redding , Largo, Maryland, pro se. Roxann Johnson , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 The petitioner requests that we review , pursuant to our authority under 5 U.S.C. § 1204 (f), an Office of Personnel Management (OPM) regulation , 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 5 C.F.R. § 831.1207 , that provides that an employee’s dis ability retirement application shall be considered withdrawn under certain circumstances. For the reasons set forth below, we DENY the petitioner’s request because it does not meet our discretionary review criteria. BACKGROUND ¶2 The petitioner was a Federal Air Marshal with the Transportation Security Administration (TSA) when she applied for disability retirement under the Federal Employees’ Retirement System (FERS). See Redding v. Office of Personnel Management , MSPB No. DC -0845 -21-0312 -I-1, Initial Appea l File (0312 IAF), Initial Decision (0312 ID), Tab 26 at 2-3. After initially approv ing the application, OPM rescinded its approval upon learning that the TSA had reassigned the petitioner to the position of Law Enforcement Specialist with the Federal Law Enforcement Training Center. 0312 I D at 3. The petitioner appealed OPM’s final decision to the Board . 0312 IAF, Tab 1. The administr ative judge concluded that the petitioner was required to file her disability retirement application from the Law Enforcement Specialist position and that OPM was correct in rescinding its approval. 0312 I D at 7. The petitioner did not file a petition fo r review with the Board and therefore the initial decision became final by operation of law on August 17, 2021. Id. at 9. ¶3 The petitioner then filed this request for the Board to review 5 C.F.R. § 831.1207 (c) and (d) , which provide: (c) OPM considers voluntary acceptance of a permanent position in which the employee has civil service retirement coverage, including a position at a lower grade or pay level, to be a withdrawal of the emplo yee’s disability retirement application. The employing agency must notify OPM immediately when an applicant for disability retirement accepts a position of this type. (d) OPM also considers a disability retirement application to be withdrawn when the age ncy reports to OPM that it has reassigned an applicant or an employee has refused a reassignment to a vacant position, or the agency reports to OPM that it has successfully 3 accommodated the medical condition in the employee’s current position. Placement c onsideration is limited only by agency authority and can occur after OPM’s allowance of the application up to the date of separation for disability retirement. The employing agency must notify OPM immediately if any of these events occur. 5 C.F.R. § 831.1207 (c) and (d). ¶4 The petitioner a ssert s that the regulation requires an employee to commit a prohibited personnel practice (PPP) by discriminating on the basis of disability , as prohibite d under section 501 of the Rehabilitation Act of 1973 , 29 U.S.C. § 79. 5 U.S.C. § 2302 (b)(1)(D). She states that it further violates 5 U.S.C. § 2301(b)(2), which provides that “[a] ll employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to . . . [disabilities]3 . . . .” Request File (RF), Tab 1 at 1-2. The petitioner claims that 5 C.F.R. § 831.1207 is “unfairly prejudicial” to the employee because it allows agencies to place an employee into a different position “without regard to the efficacy of the reassignment.” Id. at 4. She states that if a reassignment “fails,” the employee should be given an opportunity to pursue disability retirement from the last position the employee held where “the employee was able to successfully perform the essential duties as required.” Id. at 5. She asserts that the Americans with Disabilities Act and the Rehabilitation Act require that a reassignment “be effective to be successful.” Id. at 6. ¶5 OPM responds that the petitioner failed to explain how the regulation requires the commission of a PPP. RF, Tab 4 at 5. OPM states that 5 C.F.R. § 831.1207 does not govern determina tions as to whether an agency’s offer of a reassignment is appropriate under the circumstances or allow OPM to determine whether an agency has successfully accommodated an employee’s disability. Id. at 6. OPM further states that all eligible employees ma y seek disability 3 Sections 2301 and 2302 anachronistically refer to a disability as a “handicapping condition.” 4 retirement approval from their final position of record whether or not the employee’s disability retirement application from a previous position was deemed withdrawn under section 831.1207 (c) or (d). Id. at 7. OPM asserts that petitione r’s argument is “basically that she has a preferable approach to § 831.1207 and that is not a basis for the Board to conduct a regulation review under 5 U.S.C. § 1204 (f).” Id. at 7-8.4 ANALYSIS ¶6 The Board’s regulation review authority is discretionary. 5 U.S.C. § 1204 (f)(1)(B) (providing that the Board grants a petition for regulation review “in its sole discretion.”). See Clark v. Office of Personnel Management , 95 F.3d 1139 , 1141 (Fed. Cir. 1996) (Congress explicitly authorized the Board to review directly any provision of any OP M rule or regulation and stated that the decision whether to grant such review was in the Board’s “sole discretion”). To guide us in deciding whether to exercise our discretion, we consider, among other things, the likelihood that the issue will be timely reached through ordinary channels of appeal, the availability of other equivalent remedies, the extent of the regulation’s application, and the strength of the arguments against the validity of its implementation. McDiarmid v. U.S. Fish and Wildlife Serv ice, 19 M.S.P.R. 347 , 349 (1984). Upon careful consideration of these factors, we decline the petitioner’s request to review 5 C.F.R. § 831.1207 (c) and (d) . ¶7 The issues raised by the petitioner could be timely reached through ordinary channels of appeal. Indeed, the petitioner already has availed herself of her right 4 OPM notes that 5 C.F.R. § 831.1207 (c) and (d) do not apply to the petitioner because those regulations apply to disability benefits under the Civil Service Retirement System , and the petitioner is covered by FERS. RF, Tab 4 at 3. OPM states that “there are no similar withdrawal regulations governing FERS disability annuity applications.” Id. We find that the petitioner nevertheless is an “interested perso n” w ho has standing to request review under 5 U.S.C. § 1204 (f) given that she filed a disability retirement application and she believes these provisions were applied by OPM in the denial of that application. 5 to appeal to the Boar d from unfavorable OPM decisions. The petitioner has previously appealed from an OPM reconsideration letter that dismissed her disability retirement application because her application was based on her Federal Air Marshal position. 0312 IAF, Tab 1. The administrative judge found that the petitioner was reassigned to the position of Law Enforcement Specialist as a reasonable accommodation. 0312 I D at 7. The administrative judge concluded that the petitioner was required to file her disability retirement application from the Law Enforcement Specialist position and that OPM was correct in rescinding its approval. Id. Subsequently, the petitioner filed a disability retirement application from her Law Enforcement Specialist position a nd, following an unfavorable disposition by OPM, she appealed OPM’s determination regarding that application to the Board . See Redding v. Office of Personnel Management , MSPB No. DC -844E -22-0366 -I-1, Initial Appeal File, Tab 1. Thus, the petitioner has d emonstrated that she can appeal from OPM decisions regarding her disability retirement benefits . The same arguments that she raise s here may be raised in the ordinary appeal process . ¶8 Second, through the appeal process, the petitioner may obtain equivalent remedies. As OPM notes, the petitioner was entitled to reapply for disability benefits from her final position of record. RF, Tab 4 at 11 (citing 5 U.S.C. §§ 8337 (e), 8451(b) ). In fact, subsequ ent to the filing of the instant request for regulation review , the petitioner reapplied for disability benefits from her Law Enforcement Specialist position. A lthough OPM denied her application, as noted above, she challenged that determination before th e Board in MSPB No. DC-844E -22-0366 -I-1. Additionally , to the extent that the petitioner believes that she was not offered a reasonable accommodation for her disability, she may have remedies through her employing agency’s discrimination complaint process. See 29 C.F.R. §§ 1614.101 -1614.110. ¶9 The third factor —the extent of the regulations’ application —likely weighs in favor of review. OPM argues that 5 C.F.R. § 831.1207 (c) and (d) have limited 6 applicability because those provisions only apply to Federal employees who are covered under the Civil Service Retirement System . RF, Tab 4 at 11 -12. OPM states that “the population of employees potentially affected by these regulations is extremely small.” Id. at 12. The petitioner, however, appears to argue that section 831.1207(c) and (d) , or at least the policies underlying those provisions, were applied to her even though she is covered under FERS. See RF, Tab 1 at 2. Without reaching the merits of her arguments, w e find that the petitioner’s allegations are broad enough to encompass the interests of applicants seeking disability retirement benefits under FERS . ¶10 Finally, we consider the s trength or weakness of the petitioner’s arguments as they relate to the validity of 5 C.F.R. § 831.1207 (c) and (d) . Taken as a whole, we agree with OPM that the petitioner is essentially arguing for a preferred approach to eligibility for disability retirement rather than arguing that the existing approach compels the commission of a PPP. For example, the petitioner suggests that “there should be a finite am ount of time allowed to evaluate the efficacy of a reassignment before a disability retirement application is withdrawn.” RF, Tab 1 at 3. She further proposes that if a reassignment is “deemed ineffective, unsuccessful, or poses a direct threat to the em ployee[ ’s] personal health,” the employee “should be given the option to either seek another reassignment or pursue disability retirement from the original position, not the failed reassignment position .” Id. (emphasis in original). However, Congress did not authorize the Board to rewrite OPM regulations. Rather, the sole purpose of the Board’s regulation review authority is to determine whether the cited regulation would “require any employee” to commit a PPP as defined by 5 U.S.C. § 2302 . See 5 U.S.C. § 1204 (f)(2). The petitioner’s argument that there is a better approach than the one laid out in the regulation is not a strong argument for invalidating the regulation. ¶11 Taken as a whole, the McDiarmid factors weigh against review. The likelihood that the issue will be timely reached through ordinary channels of 7 appeal, the availability of other equivalent remedies, and the weakness of th e petitioner’s arguments persuade us not to exercise our discretion to review her challenge to the validity of 5 C.F.R. § 831.1207 (c) and (d) . McDiarmid , 19 M.S.P.R. at 349. ORDER ¶12 Accordingly, the petitioner’s request for regulation review is DENIED. This is the final decision of the Merit Systems Protection Board in this proceeding. Title 5 of the Code of Federal Regulations, section 120 3.12(b) (5 C.F.R. § 120 3.12(b)). NOTICE OF APPEAL RIG HTS You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular foru m is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S . 8 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, 9 and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, cost s, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed thro ugh the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your d iscrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washi ngton, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW 12G Washington, D.C. 20507 10 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no chal lenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review 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 “G uide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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 jurisd iction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit , you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor war rants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	REDDING_STEPHANIE_CB_1205_21_0015_U_1_FINAL_ORDER_2033364.pdf	2023-05-19	null	CB-1205	NP
3,123	https://www.mspb.gov/decisions/nonprecedential/MORRISON_THOMAS_E_AT_0752_19_0785_X_1_FINAL_ORDER_2033388.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD THOMAS E. MORRISON, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER AT-0752 -19-0785 -X-1 DATE: May 19, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Thomas E. Morrison , Tampa, Florida, pro se. Jason L. Hardy , Clearwater, Florida, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 In a July 31, 2020 compliance initial decisio n, the administrative judge found the agency in partial noncompliance with the Board’s final decision 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). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 underlying appeal. Morrison v. U.S. Postal Service , MSPB Docket No. AT -0752 - 19-0785 -C-1, Compliance File (CF), Tab 6, Compliance Initial Decision (CID) ; Morrison v. U.S. Postal Ser vice, MSPB Docket No. AT -0752 -19-0785 -I-1, Initial Appeal File (IAF), Tab 39, Initial Decision (ID) . For the reasons discussed below, we now find the agency in compliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIAN CE ¶2 In a January 8, 2020 initial decision, the administrative judge found that the agency improperly suspended the appellant by placing him in an enforced leave status and discriminated against him on the basis of a disability when it failed to provide him a reasonable accommodation . ID at 2 -9. Accordingly, the administrative judge ordered the agency to cancel the appellant’s suspension , retroactively restore him effective August 1 3, 201 9,3 and provide him the appropriate amo unt of back pay with interest and benefits. ID at 9 ; IAF, Tab 41. The initial decision became the final decision of the Board on February 12, 2020, after n either party petitioned for administrative review . ID at 11. ¶3 On April 10, 2020, the appellant pe titioned for enforcement , alleging that the agency had failed to comply with the Board’s final decision. In the July 31, 2020 compliance initial decision , the administrative judge agreed, in part, finding the agency in noncompliance to the extent it had failed to properly restore the appellant .4 CID. Specifically , she found that, although the agency initially 3 The initial decision ordered the agency to retroactively restore the appellant effective August 13, 2018. ID at 9. However, in a January 13, 2020 erratum, the administrative judge corrected the effective date to August 13, 2019. IAF, Tab 41. 4 The admi nistrative judge found that the agency could not be found in noncompliance with its obligation to provide the appellant back pay and benefits because the appellant had refused to provide the paperwork required to process them , despite repeated requests tha t he do so . CID at 3 -4. In addition, she found that the appellant’s allegations that the agency placed him in a leave without pay (LWOP) status for 3 restored the appellant to the Tampa Processing and Distribution Center (PDC) and placed him in the unassigned regular positi on he previously held, performing the duties he performed prior to being placed in an enforced leave status, it reassigned him 2 months later to a Mail Processing Clerk bid position on a different tour of duty in a different location, Y bor City . CID at 4-8. She explained that, b ecause the Board had found that the appellant was entitled to a reasonable accommodation and that his previously held position and assigned duties were a reasonable accommodation , the agency could not reassign him without appropria tely considering his specific medical restrictions , as well as articulating a valid reason for reassigning him in the first place. CID at 6-7. She found that the agency failed to do so and , therefore, that the reassignment was not in accordance with agen cy’s obligation to restore the appellant to the status quo ante. CID at 7-8. Accordingly, the administrative judge granted the appellant’s petition for enforcement and ordered the agency to r eturn him to his previous position at the Tampa PDC performing the manual mail duties he was previously performing. CID at 8. She noted that, if the agency had a valid reason (for example, lack of work) to reassign the appellant, it must not do so without taking into consideration the appellant’s specific medical re strictions and the statutory requirements. Id. ¶4 The administrative judge informed the agency that, if it decided to take the actions ordered in the compliance initial decision, it must submit to the Clerk of the Board a narrative statement and evidence est ablishing compliance. CID at 8-9. In addition, she informed both parties that they could file a petition for review of the compliance initial decision if they disagreed with the findings therein. CID at 9-10. Neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114 . As such, pursuant to 32 hours and issu ed him a letter of warning for filing a grievance about the LWOP period were outside the scope of the Board’s final decision in this matter. CID at 2 -3. 4 5 C.F.R. § 1201.18 3(b)-(c), the administrative judge’s findings of noncompliance became final, and the appellant’s petition for enforcement was referred to the Board for a final decision on issues of compliance. Morrison v. U.S. Postal Service , MSPB Docket No. AT -0752 -19-0785-X-1, Compliance Referral File (CRF), Tab 1. ¶5 On September 8 , 2020, the Board issued an acknowledgment order directing the agency to submit evidence showing that it had complied with all actions identified in the compliance initial decision. CRF, Tab 1 at 3. In a September 11, 2020 response, the agency stated tha t it had complied with the administrative judge’s order by restoring the appellant to his previous position at the Tampa PDC , performing the duties in the manual letters section he had before he was placed on enforced leave , with the same tour of duty. CR F, Tab 2 at 4-5. The agency provided evidence supporting its assertion of compliance , including an August 4, 2020 letter directing the appellant to report for duty on August 8, 2020, at the Tampa PDC , manual letters section, and stating that his tour of d uty would be from 5 p.m. to 1:50 a.m. with Wednesdays and Thursdays off . Id. at 6-27. In respons e, the appellant argued : the agency’s Reasonable Accommodation Committee has failed to “acknowledge” his accommodation; the agency has not paid him the ordered compensatory damages; he is “apprehensive” about the agency’s letter returning to him to duty given the agency’s “boundless capacity for mendacity”; the agency has not expunged a disciplinary action from his personne l file pursuant to a settlement agreement ; he is “still appearing on the Ybor City pay location (Pay Location 160)”; and the agency has issued him a demand letter for medical bills he “never incurred” in the amount of $178. CRF, Tabs 3-5. The agency repl ied, asserting, among other things, that the appellant’s submission conceded that he had been restored to his former position and duties at the Tampa PDC and that his other arguments were outside the scope of the compliance proceeding. CRF, Tab 6. 5 ¶6 When, a s here, the Board finds a personnel action unwarranted, the aim is to place the appellant, as nearly as possible, in the situation he would have been in had the wrongful personnel action not occurred. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011); King v. Department of the Navy , 100 M.S.P.R. 116 , ¶ 12 (2005), aff’d per curiam , 167 F. App ’x 191 (Fed. Cir. 2006). The agency bears the burden to prove compliance with the Board ’s order by a preponderance of the evidence.5 Vaughan , 116 M.S.P.R. 319 , ¶ 5; 5 C.F.R. § 1201.183 (d). An agency ’s assertions of compliance must include a clear explanation of its compliance actions supported by documentary evidence. Vaughan , 116 M.S.P.R. 319 , ¶ 5. The appellant may rebut the agency ’s evidence of compliance by making specific, nonconclusory, and supported assertions of continued noncompliance. Id. ¶7 As described above, the administrative judge found the agency in partial noncompl iance with the Board’s final order and ordered the agency to return the appellant to his previous position at the Tampa PDC performing the duties he was previously performing. CID at 4-8. The agency’s evidence reflects that it has now done so. CRF, Tab 2. Although the appellant has responded in opposition to the agency’s statement and evidence of compliance , his submissions do not pertain to the dispositive issue in this compliance proceeding —i.e., he does not dispute that the agency has restored him to his previous position and duties.6 Accordingly, the appellant has not rebutted the agency’s evidence of compliance. 5 A preponderance of the evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q). 6 To the extent the appellant believes that the agency is not in compliance with another aspect of the Board’s final order in th e underlying appeal or the damages proceeding Morrison v. U.S. Postal Service , MSPB Docket No. AT -0752 -19-0785 -P-1, he may file a new petition for enforcement. 6 ¶8 In light of the foregoing, we find that the agency is now in compliance and dismiss the appellant’s petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, sec tion 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE OF APPEAL RIGH TS7 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the approp riate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which o ption is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediatel y review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the th ree main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the co urt at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file 8 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs , or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEO C via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 9 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited p ersonnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of competent jurisdiction.8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 8 The original statutory provision that provided for judicial review of certain whistleblower claims b y any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain w histleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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 inf ormation regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case . Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/Cour tWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MORRISON_THOMAS_E_AT_0752_19_0785_X_1_FINAL_ORDER_2033388.pdf	2023-05-19	null	AT-0752	NP
3,124	https://www.mspb.gov/decisions/nonprecedential/BODY_FREDA_T_AT_0714_18_0141_X_1_FINAL_ORDER_2032759.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD FREDA T. BODY, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0714 -18-0141 -X-1 DATE: May 18, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Freda T. Body , Birmingham, Alabama, pro se. Michael Rhodes , Montgomery, Alabama, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 On June 17, 2019, the administrative judge issued a compliance initial decision granting the appellant’s petition for enforcement and finding the agency in partial noncompliance with the April 4, 2018 initial decision, which reversed the appellant’s remova l and ordered her reinstated with back pay and benefits. Body v. Department of Veterans Affairs , MSPB Docket No. AT -0714 -18-0141 -C- 1, Compliance File (CF) , Tab 9, Compliance Initial Decision (CID ); Body v. Department of Veterans Affairs , MSPB Docket No. A T-0714 -18-0141 -I-1, Initial Appeal File (IAF), Tab 17, Initial Decision (ID) . For the reasons discussed below, we now find the agency in compliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 Effective November 17, 2017, the agency removed the appellant from her position. IAF, Tab 7 at 13 -14. The appellant timely appealed her removal to the Board. IAF, Tab 1 . In an April 4, 2018 initial decision, the administrative judge reversed the remova l and ordered the agency to retroactively restore the appellant to her position and to pay her all appropriate back pay and benefits. ID at 23. Becau se neither party filed a petition for review by May 9 , 2018, the initial decision became the final decision of the Board. ID at 25; see 5 C.F.R. § 1201.113 . ¶3 On March 21, 2019, the appellant filed a petition for enforcement of the initial decision , arguing that the agency had not paid her interest on the back pay award .3 CF, Tab 1. The agency responded that it was in full compliance with the initial decision and provided evidence showing that the appellant had received 3 The administrative judge construed the appellant’s March 21, 2019 submission as both a petition for enforcement and as a claim for compensatory and consequential damages . CID at 2. The claim for compensatory and consequential damages was docketed and adjudicated separately under MSPB Docket No. AT -0714 -18-0141 -P-1. 3 back pay for 1 ,080 hours in the gross amount of $23,371.20. CF, Tab 7 at 4, 6. In response, the appellant reiterated that the agency had not paid her interest on the back pay award, explaining that the gross amount paid by the agency of $23,371.20 was equivalent to 1,080 hours at her hourly rate of $21.64. CF, Tab 8 at 3-6. ¶4 In the June 17, 2019 compliance initial decision , the administrative judge found that the agency was in noncompliance with the initial decision to the extent that it had failed to pay the appellant i nterest on her back pay award. CID at 3. Accordingly, he granted the appellant’s petition for enforcement and ordered the agency to pay the appellant the appropriate amount of interest on the back pay award consistent with 5 U.S.C. § 5596 (b)(2)(B) and to provide a narrative explanation of its calculation of the interest payment, along with supporting documentation to the appellant. CID at 3-4. He informed the agency that, if it decided to take the ordered actions, it must submit to the Clerk of the Board a narrative statement and evidence establishing compliance. CID at 4. The administrative judge further informed the agency that, if it decided not to take all of th e ordered actions, it must file a petition for review of the compliance initial decision. CID at 4 -5. Neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114 , and the appellant’s petition for enforcement was referred to the Board for a final decision on issues of compliance pursuant to 5 C.F.R. § 1201.183 (b)-(c). Body v. Department of Veterans Affairs , MSPB Docket No. AT -0714 -18-0141 -X-1, Compliance Referral File (CRF), Tab 1. ¶5 On July 26, 2019, the Clerk of the Board ordered the agency to submit evidence showing that it had complied with all of the action s identified in the compliance initial decision and reminded the agency that a failure to comply with a final Board decision may result in the imposition of sanctions against the responsible agency official pursuant to 5 U.S.C. § 1204 (e)(2)(A). CRF, Tab 1 at 3. The agency did not respond. Accordingly, by order dated November 25, 4 2019, the Clerk of the Board again directed the agency to submit the evidence of compliance required by the compliance initial decision. CRF, Tab 2. Both the July 26 and November 25, 2019 orders informed the appellant that she could respond to the agency’s compliance submissions and that, if she did not do so, the Board may assume that she was satisfied and dismiss her petition for enforcement. CRF, Tab 1 at 4, Tab 2 at 3. ¶6 In a December 9, 2019 response to the Clerk of the Board’s order , the agency identified the official charged with complying with the Board’s order and provided evidence reflecting that it had determi ned that the appellant was entitled to interest on the gross back pay award in the amount of $471.75. CRF, Tab 3. In a December 30, 2019 submission, the appellant stated that she had now received the back pay award at the correct rate of pay plus interest and benefits but that she had not yet received the overtime pay she would have received had she not been removed . CRF, Tab 4 at 3 -4. On February 4, 2020, t he agency responded with evidence showing that, on January 15, 2020, it paid the appellant $431.56, which the agency representative described as “the amount in dispute.” CRF, Tab 5. The appellant did not respond to the agency’s February 4, 2020 submission. ANALYSIS ¶7 When the Board finds a personnel action unwarranted, the aim is to place the appellant, as nearly as possible, in the situation she would have been in had the wrongful personnel action not occurred. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011); King v. Department of the Navy , 100 M.S.P.R. 116 , ¶ 12 (2005), aff’d per curiam , 167 F. App ’x 191 (Fed. Cir. 2006). The agency bears the burden to prove compliance with the Board ’s order 5 by a preponderance of the evidence.4 Vaughan , 116 M.S.P.R. 319 , ¶ 5; 5 C.F.R. § 1201.183 (d). An agency ’s assertions of complianc e must include a clear explanation of its compliance actions supported by documentary evidence. Vaughan , 116 M.S.P.R. 319 , ¶ 5. The appellant may rebut the agency ’s evidence of compliance by making specific, nonconclusory, and supported assertions of continued noncompliance. Id. ¶8 As described above, in the compliance initial decision, the administrative judge found that the agency fai led to establish that it had complied with its obligation to pay the appellant interest on the back pay award. CID. The parties’ submissions show that the agency has now complied with this obligation . CRF, Tabs 3 -4. In addition, the agency has represen ted that it has paid the appellant the appropriate amount of overtime back pay, and the appellant has not further challenged the agency’s compliance with its obligation to restore her to the status quo ante. Accordingly, the Board assumes she is satisfied with the agency’s compliance on the interest issue . See Baumgartner v. Department of Housing and Urban Development , 111 M.S. P.R. 86 , ¶ 9 (2009). ¶9 Although the appellant now appears to be disputing whether the agency properly computed any overtime payment due to her as part of her back pay, she did not make this challenge before the administrative judge, nor did she file a time ly petition for review of the administrative judge’s determination that the back pay award was accurate but for the interest payment . CRF, Tab 1, CF, Tabs 1, 8. We therefore will not consider this contention. ¶10 In light of the foregoing, we find that the a gency is now in compliance and dismiss the petition for enforcement. This is the final decision of the Merit 4 A preponderance of the evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is mo re likely to be true than untrue. 5 C.F.R. § 1201.4 (q). 6 Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, sec tion 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees a nd costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limi t for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of th is final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum . 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in fin al decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact th at forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 8 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, cost s, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims onl y, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 9 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 jur isdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U. S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relev ance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals f or the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided b y any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BODY_FREDA_T_AT_0714_18_0141_X_1_FINAL_ORDER_2032759.pdf	2023-05-18	null	AT-0714	NP
3,125	https://www.mspb.gov/decisions/nonprecedential/DANIELS_PHILLIP_L_AT_0714_18_0069_I_1_FINAL_ORDER_2032826.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD PHILLIP L. DANIELS, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0714 -18-0069 -I-1 DATE: May 18, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Phillip L. Daniels , Lake City, Florida, pro se. Kristin Langwell , Esquire, St . Petersburg, Florida, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has fil ed a petition for review of the initial decision, which sustained his removal. Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the appeal as settled. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 ¶2 While the petition for review was pending, the parties submitted a co py of a settlement agreement , signed and dated by the appellant on March 15, 2023, and by the agency on March 23, 2023. PFR File, Tab 4 at 4 -8. The agreement provides for the withdrawal of the appeal in exchange for certain promises made by the agency, and the parties have further agreed for the agreement to be entered into the record for enforcement purposes. Id. ¶3 Before dismissing a matter as s ettled, 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 S ervice , 37 M.S.P.R. 146 , 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it. See Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 10 -11 (2017). ¶4 Here, we find that the parties have entered into the settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforcement by the Board. We furt her find that the agreement is lawful on its face and that the parties freely entered into it. Accordingly, we find it appropriate to dismiss the appeal with prejudice to refiling (i.e., the parties normally may not refile this appeal) and enter the agree ment into the record for enforcement purposes. ¶5 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulation s, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS If the agency or the appellant has not fully carried out the terms of the agreement, either party may ask the Board to enforce the settlement agreement by promptly filing a petit ion for enforcement with the office that issued the initial 3 decision on this appeal. The petition should contain specific reasons why the petitioning party believes that the terms of the settlement agreement have not been fully carried out, and should inc lude the dates and results of any communications between the parties. 5 C.F.R. § 1201.182 (a). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to yo ur particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise w hich option is most appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action in volves a claim of discrimination based on 5 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other secur ity. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial deliver y or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protectio n Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice descri bed in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 infor mation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information f or the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DANIELS_PHILLIP_L_AT_0714_18_0069_I_1_FINAL_ORDER_2032826.pdf	2023-05-18	null	AT-0714	NP
3,126	https://www.mspb.gov/decisions/nonprecedential/LANE_JESSE_L_CH_0752_17_0530_X_1_FINAL_ORDER_2032856.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JESSE L. LANE, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER CH-0752 -17-0530 -X-1 DATE: May 18, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jesse L. Lane , Carbondale, Illinois, pro se. Gary Levine , Esquire, Hines, Illinois, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 On July 2, 2018, the administrative judge issued a compliance initial decision granting the appellant’s petition for enforcement and finding the agency in partial noncompliance with the January 29, 2018 initial decision , which reversed the appellant’s removal and ordered h im reinstated with back pay and benefits . Lane v. Department of Veterans Affairs , MSPB Docket No. CH -0752 - 17-0530 -I-1, Initial Appeal File (IAF) , Initial Decision (ID); Lane v. Department of Veterans Affairs , MSPB Docket No. CH -0752 -17-0530 -C-1, Complianc e File (CF), Compliance Initial Decision (CID). For the reasons discussed below, we now find the agency in compliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 Effective July 27, 2017, the a gency removed the appellant from his position as a GS -6 Licensed Practical Nurse on the basis of one charge of patient abuse . IAF, Tab 1 at 7. The appellant timely appealed his removal to the Board . Id. at 1-6. In a January 29, 2018 initial decision, t he administrative judge reversed the remova l and ordered t he agency to retroactively restore the appellant to his position effective July 27, 2017 , and to pay him all appropriate back pay and benefits . ID at 19 -20. After neither party filed a petition for review by March 5, 2018 , the initial decision became the final decision of the Board. ID at 22 ; see 5 C.F.R. § 1201.113 . ¶3 On May 21, 2018, the appellant filed a petition for enforce ment of the initial decision asserting that he had not yet received any back pay. CF, Tab 1. The agency responded with evidence showing that, on February 4, 2018, it canceled the appellant’s removal and retroactively restored him effective July 27, 2017. CF, Ta b 3 at 5 , 10. The agency stated that it had calculated the appropriate amount of back pay and benefits owed to the appellant and that it had submitted the corrected timecards and all documentation required to process the appellant’s 3 back pay and b enefits to the Defense Finance and Accounting Service (DFAS) in March 2018. Id. at 5-6. ¶4 On June 11, 2018, the appellant responded to the agency’s submission, asserting that he had still not received any back pay. CF, Tab 6 at 3. He also stated that, alt hough he returned to work on March 5, 2018, he was restricted from working near a certain patient , despite being cleared of the charge of patient abuse , and felt “harassed an d intimidated by coworkers and bosses.” Id. at 3-4. In addition, he argued that the agency was violating the Back Pay Act by f ailing to pay him attorney fees. Id. at 5. ¶5 In a July 2, 2018 compliance initial decision, the administrative judge found that the agency was in partial noncompliance with the Board’s order because the appell ant had not yet received the ordered back pay and interest. CID at 4. Although the agency blamed DFAS for the delay in paying the appellant, the administrative judge found that the agency itself was liable for the delay because it had chosen DFAS as its paying agent and had not established good cause for failing to complete the actions ordered by the Board . CID at 5. The administrative judge rejected the appellant’s allegations of noncompliance with respect to attorney fees, explaining that the Board’s final order did not award attorney fees and that the appellant never filed a motion for attorney fees, despite being notifie d of his opportunity to do so. Id. In addition , the administrative judge found that the appellant’s additional claims regarding his treatment at work were outside the scope of the Board’s order. CID at 6. She found that the appellant ’s removal had been canceled and he had been retroactively restored to his position and that the agency was therefore in compliance with that portion o f the Board’s order. Id. In light of these findings , she granted the appellant’s petition for enforcement , in part, and again ordered the agency to pay the appellant back pay and interest . Id. She further ordered the agency to inform the appellant in w riting of all actions taken to reach compliance , including the manner in which it calculated the back pay and interest. Id. Neither party filed a 4 petition for review of the compliance initial decision, and the appellant’s petition for enforcement was ref erred to the Board for a final decision on issues of compliance pursuant to 5 C.F.R. § 1201.183 (b)-(c). Lane v. Department of Veterans Affairs , MSPB Docket No. CH -0752 -17-0530 -X-1, Compliance Referral File ( CRF ), Tab 1. ¶6 In an August 23, 2018 response to the Clerk of the Board’s order to submit evidence showing that it had complied with all actions identified in the compliance initial decision, the agency reiterated that it had canceled the appellant’s removal, retroactively restored him, and sent the documentation required to process the back pay award to DFAS . CRF, Tab 2 at 4. The agency further stated, however, that the payment of back pay to the appellant had been delayed becau se DFAS had to wait for a letter from the Office of Personnel Management (OPM) stating how much it wa s required to deduct from the appellant’s back pay award for his Federal Employees’ Retirement System (FERS) redeposit . CRF, Tab 2 at 4. The agency state d that “DFAS should now have all the necessary documentation to finalize the payment of back pay.” Id. The agency did not provide any explanation regarding how the back pay and interest would be calculated. On September 14, 2018, the appellant responded to the agency’s submission , asserting that he had not yet received any back pay. CRF, Tab 3 at 2-3. ¶7 On June 19, 2019, the Clerk of the Board directed the agency to file a detailed narrative explanation setting forth how it calculated the back pay and interest due to the appellant and to file evidence showing that it had paid the appellant those amounts. CRF, Tab 5. In response, t he agency stated that it had determined that the appellant was entitled to $4,512.14 in gross back pay , which it derived by subtracting the appellant’s outside earnings during the back pay period ($17,584.32), the lump sum annual leave payout he received when he was removed ($900.06), and the refunded FERS contributions he received upon his removal ($8,574 .84), which the agency repaid to OPM, from the total amount of 5 gross earnings he would have earned during the back pay period ($31,571.36).3 CRF, Tab 6 at 4-5, 7-8. The agency further stated that the appellant was entitled to interest on the back pay in the amount of $180. 58. Id. at 5, 7 -8. Accordingly, the agency stated that the appellant was entitled to a total gross back pay award of $4,692.72 ($4,512.14 + $180. 58 = $4,692.72). Id. at 4-5. The agency provided evidence reflecting that it paid the ap pellant this gross back pay award minus appropriate deductions on September 21, 2018. Id. at 5, 7 -8, 12. Because the agency combined the appellant’s back pay award with his earnings for the current pay period in the amount of $2,288.38, the leave and ear nings statement reflects that he received net pay in the amount of $4,614.79, which is equivalent to the back pay award ($4,692.72) plus current earnings ($2,288.38) minus all appropriate deductions ($ 2,366.3 1). Id. Despite being notified of his opportunity to do so, CRF, Tab 5 at 2 -3, the appellant did not respond to the agency’s submission s or dispute its assertions of compliance . ¶8 When the Board finds a personnel action unwarranted, the aim is to place the appellant, as nearly as possible, in the situation he would have been in had the wrongful personnel action not occurred. Vaughan v. Department of Agriculture , 116 M.S.P. R. 319 , ¶ 5 (2011); King v. Department of the Navy , 100 M.S.P.R. 116 , ¶ 12 (2005), aff’d per curiam , 167 F. App ’x 191 (Fed. Cir. 2006) . The agency bears the burden to prove compliance with the Board ’s order by a preponderance of the evidence.4 Vaughan , 116 M.S.P.R. 319, ¶ 5; 5 C.F.R. § 1201.183 (d). An 3 In a supplemental response, the agency affirmed that the appellant would have received $31,571.36 in gross earnings during the back pay period and acknowledged that its estimate in a prior submission that he would have earned $32,577.27 during the back pay period was incorrect . CRF, Tab 8 at 4 -5; CF, Tab 3 at 14. The agency explained that the difference between the correct amount of $31,571.36 and the estimate of $32,577.27 resulted from calculation e rrors and adjustments to Sunday and Holiday pay. CRF, Tab 8 at 4 -5, 9-20. 4 A preponderance of the evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q). 6 agency ’s assertions of compliance must include a clear explanation of its compliance actions supported by documentary evidence. Vaughan , 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency ’s evidence of compliance by making specific, nonconclusory , and supported assertions of continued noncompliance. Id. ¶9 As described above, in the compliance initial decision , the administrative judge found that the agency failed to establish that it had complied with its obligation to pay the appellant appropriate back pay with interest for the back pay period. CID . The agency’s submissions show that it has now reached full compliance with this obligation. In particular, as set forth above, the agency described how it determined that the appellant was entitled to a total back pay award of $4,692.72 and has provided evidence supporting these calculations and showing that the payment , minus appropriate deductions, has been paid to the appellant . As the appellant has not responded to the agency’s assertions and evidence of compliance, the Board assumes that he is satisfied. See Baumgartner v. Department of Housing and Urban Development , 111 M.S.P.R. 86 , ¶ 9 (2009). ¶10 In light of the foregoing, we find that the agency is now in compliance and dismiss the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, sec tion 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicia l review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Ci rcuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at 8 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any att orney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no lat er than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed t hrough the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you rece ive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, 9 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petit ion for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals o f competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal ca ses with the U.S. Court of Appeals 10 review within 60 days of the date of issuance of this decisi on. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following addre ss: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Ap peals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services pro vided by any attorney nor warrants that any attorney will accept representation in a given case. for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	LANE_JESSE_L_CH_0752_17_0530_X_1_FINAL_ORDER_2032856.pdf	2023-05-18	null	CH-0752	NP
3,127	https://www.mspb.gov/decisions/nonprecedential/RAY_TRIO_M_SF_0752_19_0206_I_1_FINAL_ORDER_2032915.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TRIO M. RAY, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER SF-0752 -19-0206 -I-1 DATE: May 18, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Trio M. Ray , Bremerton, Washington, pro se. Peter C. Tunis and David Thayer , Esquire, Bremerton, Washington, for the agency. BEFORE Cathy A. Harris, Vice Cha irman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has petitioned for review of the initial decision in this appeal. For the reasons se t forth below, we DISMISS the petition for review as settled. ¶2 After the filing of the petition for review, the agency submitted a document entitled “ STIPULATION FOR COMPROMISE SETTLEMENT,” signed by the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 parties between March 28 and April 5, 2023 . Petition for Review (PFR) File, Tab 6 at 6 -11. The document provides, among other things, for the “complete[] release[] and forever discharge” of the agency regarding “any and all past, present, and future claims . . . in any way growing out of [ the appel lant’s] employment. ” Id. at 6-7. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entered into the r ecord 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 se ttlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it. See Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 10 -11 (2017). ¶4 Here, we find that the parties have entered into a settlement agreement, understand its terms, and agree that the agreement wil l not be entered into the record for enforcement by the Board. PFR File, Tab 6 at 5 n.1.2 Accordingly, we find that dismissing the petition for review with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances. As the parties do not intend for the Board to enforce the terms of the settlement agreement, we do not enter the settlement agreement into the record for enforcement. 2 While completing the questionnaire associated with the submission of its pleading, the agency selected “Yes” in response to the question of whether the parties wanted the settlement agreement entered into the record for enforcement purposes. PFR File, Tab 6 at 3. However, we have construed this as a clerical mistake because it is contradicted by the agency’s more complete explanation elsewhere in the same pleading. The agency explained that the appellant filed an equal employment opportunity complaint t hat she pursued in Federal court in addition to the instant appeal before us. Id. at 4. According to the agency, the agreement resolves both matters, but the parties do “not expect the Board to retain jurisdiction for enforcement of this agreement because it was created in the context of a Federal District Court complaint.” Id. at 5 n.1. 3 ¶5 This is the final decision of the Merit Systems Protection Board i n this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicia l review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 3 Since the issuance of the initial decision in this matter, the Board ma y have updated the notice 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 Ci rcuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Pet itioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any atto rney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that s uch action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision bef ore you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 5 race, color, religion, sex, national origin, or a disabling c ondition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can b e found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision be fore you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you h ave raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 230 2(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 peti tion 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 Circu it, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is av ailable at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in se curing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants befo re 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 dec isions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	RAY_TRIO_M_SF_0752_19_0206_I_1_FINAL_ORDER_2032915.pdf	2023-05-18	null	SF-0752	NP
3,128	https://www.mspb.gov/decisions/nonprecedential/JOHNSON_CLYDE_AT_0714_20_0077_X_1_FINAL_ORDER_2032982.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CLYDE JOHNSON, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0714 -20-0077 -X-1 DATE: May 18, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Bradley R. Marshall , Mount Pleasant , South Carolina, for the appellant . Torrey D. Smith , Esquire, Decatur, Georgia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 In a September 4, 2020 compliance initial decision, the administrative judge found the agency in partial noncompliance with the Board’s April 9, 2020 final decision reversing the appellant’s removal and ordering the agency to retroactively res tore h im with back pay and benefits. Johnson v. Department of Veterans Affairs , MSPB Docket No. AT -0714 -20-0077 -I-1, Initial Appeal File, Tab 3 8, Initial Decision (ID)3; Johnson v. Department of Veterans Affairs , MSPB Docket No. AT -0714 -20-0077 -C-1, Compl iance File, Tab 6, Compliance Initial Decision (CID ). For the reasons discussed below, we find the agency in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 In the compliance initial decision, the administrative judge found the agency in partial noncompliance with the Board’s final decision in the underlying appeal to the extent it failed to provide proof that it had paid the appellant all back pay owed, with interest. CID at 2 -3. Accordingly, she granted the appellant’s petition for enforcement , in part, and ordered the agency to pay the appellant all back pay owed , with interest, and to provide him an explanation of its updated back pay calculations. CID at 3. ¶3 The administrative judge informed t he agency that, if it decided to take the ordered actions, it must submit to the Clerk of the Board a narrative statement and evidence establishing compliance. CID at 3-4. The compliance initial decision 3 The initial decision became the final decision of the Board on May 14, 2020, after neither party petitioned the Board for administrative review. ID at 10; see 5 C.F.R. § 1201.113 . The appellant requested review of his discrimination claims by the Equal Employment Opportunity Commission, which issued a final decision on November 19, 2020 concurring with the administrative judge’s finding that the appellant did not establish his affirmative defense of unlawful discrimination . Johnson v . Department of Veterans Affairs , MSPB Docket No. AT -0714 -20-0077 -I-1, Petition for Review File, Tabs 1, 4. 3 also informed the parties that they could file a p etition for review if they disagreed with the compliance initial decision. CID at 4-5. Neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114 . Accordingly, pursuant to 5 C.F.R. § 1201.183 (b)-(c), the administrative judge’s findings of noncompliance have become final, and the appellant’s petition for enfor cement has been referred to the Board for a final decision on the issues of compliance. Johnson v. Department of Veterans Affairs , MSPB Docket No. AT -0714 -20-0077 -X-1, Compliance Referral File (CRF) , Tab 1. ¶4 On March 8, 2022, the Board issued an acknowledgment order directing the agency to submit evidence showing that it has complied with all actions identified in the compliance initial decision. CRF, Tab 1 at 3. The acknowledgment order also notified the appellant that he may respond to any submission from the agency by filing written arguments with the Clerk of the Board within 20 calendar days of the date of service of the agency’s submission. Id. The appellant was cautioned, however, that if he did not respond to the agency’s evidence of compliance within those 20 calendar days, the Board “may assume you are satisfied and dismiss your petition for enforcement.” Id. at 3-4. ¶5 In its March 23, 2022 compliance submission, the agency informed the Board, in relevant p art, that it had complied with the Board’s final order by paying the appellant his back pay with interest, including payment for night differential hours. CRF, Tab 2. As evidence of its compliance, the agency provided several copies of the appellant ’s pr ior pay statements, to include for pay period ending August 2 9, 2020, which shows payment of back pay for 1,064 hours of regular pay ($21,127.68) and 897 hours of night differential pay ($1,782.36) , with interest ($532.63 ). Id. at 33-34. The appellant di d not respond to the agency’s submission . 4 ANALYSIS ¶6 When the Board finds a personnel action unwarranted or not sustainable, it orders that the appellant be placed, as nearly as possible, in the situation he would have been in had the wrongful personnel action not occurred. House v. Department of the Army , 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the burden to prove its compliance with a Board order. An agency’s assertions of comp liance must include a clear explanation of its compliance actions supported by documentary evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by making “specific, nonconclusory, and supported assertions of continued noncompliance.” Brown v. Office of Personnel Management , 113 M.S.P.R. 325 , ¶ 5 (2010). ¶7 Here, as noted above, the administrative judge found that, to establish compliance with the Board’s final decision in the under lying appeal, the agency must pay the appellant all back pay owed, with interest, and provide him an explanation of its updated back pay calculations. CID at 3. The agency’s submission reflect s that it has now paid the appellant $21,127.68 in back pay fo r regular hours and $1,782.36 in night differential pay, as well as $532.63 in interest on the back pay award. The appellant has not responded to the agency’s compliance submission , despite being notified of h is opportunity to do so, including having been cautioned that the Board may assume he is satisfied and dismiss his petition for enforcement if he did not respond. CRF, Tab 1. Accordingly, we assume that the appellant is satisfied with the agency’s compliance. See Baumgartner v. Department of Housing and Urban Development , 111 M.S.P.R. 86 , ¶ 9 (2009). 5 ¶8 In light of the foregoing, we f ind that the agency is now in compliance and dismiss the appellant’s petition for enforcement.4 This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, sec tion 1201.183(c )(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 4 The agency did not indicate that it provided the appellant an explanation of its updated back pay calculations, as required by the compliance init ial decision. Nonetheless, this failure does not preclude the Board from finding the agency in compliance given that the appellant has not objected to the agency’s compliance and is assumed to be satisfied. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 7 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, cost s, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims onl y, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 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.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 6 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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 relev ance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals f or the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided b y any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	JOHNSON_CLYDE_AT_0714_20_0077_X_1_FINAL_ORDER_2032982.pdf	2023-05-18	null	AT-0714	NP
3,129	https://www.mspb.gov/decisions/nonprecedential/MARKEY_JAMES_CB_7521_16_0013_N_1_ORDER_DISMISSING_REQUEST_FOR_A_STAY_2032503.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DEPARTMENT OF VETERA NS AFFAIRS, Petitioner, v. JAMES MARKEY, Respondent. DOCKET NUMBER CB-7521 -16-0013 -N-1 DATE: May 17, 2023 THIS ORDER IS NONPRECEDENTIAL* Christina Knott, Esquire, and Hansel Cordeiro, Esquire, Washington, D.C., for the petitioner. Cheri L. Cannon, Esquire, Washington, D.C., for the respondent. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member ORDER DISMISSING REQUEST FOR A STAY ¶1 The respondent has filed an Emergency Request for a Protective Order and for a Stay in this appeal. For the following reasons, the request is DISMISSED as moot. *A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 BACKGROUND ¶2 The respondent was employed by the Department of Veterans Affairs (DVA or agency) as a Veterans Law J udge ( VLJ). Department of Veterans Affairs v. Markey , CB -7521 -16-0013 -T-1, Initial Appeal File (IAF), Tab 1 at 153 , 176 . On February 1, 2016, DVA filed a complaint under 38 U.S.C. § 7101 A(e)(2) , to be conducted pursuant to 5 U.S.C. § 7521 , requesting that the Board find good cause to remov e the respondent for conduct unbecoming a VLJ and for misuse of Government resources. Id. at 4 -14. Following a hearing, the presiding administrative law judge issued an initial decision finding that DVA proved both of its charges , the respondent failed t o prove his affirmative defenses, and DVA had good cause to remove the respondent from his VLJ position . IAF, Tab 33, Initial Decision (ID). ¶3 In the initial decision, dated November 9, 2017, the presiding administrative law judge notified the respondent of his review rights. ID at 1, 54-61. Of relevance here, t he notice informed him that the initial decision would become final on December 14, 2017, unless a petition for review was filed by that date. ID at 54. ¶4 It is undisputed that , on November 20, 2017, DVA notified the respondent that it would remove him , effective November 24, 2017. Request for Stay (R FS) File, Tab 1 at 3, Tab 4 at 5. On November 22, 2017, the respondent filed the present Emergency Request for a Protective Order and for a Stay . RFS File, Tab 1. DVA subsequently removed the respondent , effective November 24, 2017. RFS File, Tab 4 at 7. ¶5 On November 30, 2017, the Acting Clerk of the Board issued an order informing the parties tha t the Board lacked a quorum and that, as a result, the issues raised in the respondent’s request and DVA ’s response w ould await a decision until a quorum wa s restored. RFS File, Tab 5. The administrative law judge’s initial decision became the final deci sion of the Board on December 14, 2017, when neither party petitioned for review. ID at 54. 3 DISCUSSION OF ARGUME NTS ON REVIEW ¶6 In his Emergency Request for a Protective Order and for a Stay, the respondent seeks that the Board issue a protective order and stay prohibiting DVA from removing him from Federal service “until such time a s the order becomes a final decision of the MSPB.” RFS File, Tab 1 at 2 -3. As stated above, the initial decision became the final decision of the Board on December 14, 2017, wh en neither party petitioned for review. ID at 54. ¶7 The Board consistently has held that a case is moot when the issues it raises are no longer live. See Gregory v. U.S. Postal Service , 91 M.S.P.R. 52, ¶ 6 (2002); Currier v. U.S. Postal Service , 72 M.S.P.R. 191, 195 (1996) ; Occhipinti v. Department of Justice , 61 M.S.P.R. 504, 507 (1994) . Here, although the respondent’s request for a protecti ve order and stay of his removal was a live controversy when he filed it on November 22, 2017 , DVA effected his removal 2 days later, on November 24, 2017. RFS File, Tab 4 at 7. Accordingly , there is no longer a live controversy for the Board to adjudicate because DVA has already removed the appellant . See Occhipinti , 61 M.S.P.R. at 507 ( holding that there must be a live case or controversy when a case is decided, not merely when the complaint is filed) (citing Spectronics Corp. v. H .B. Fuller C o., Inc., 940 F.2d 631, 635 (Fed. Cir. 1991)). We therefore find the respondent’s request moot. Id. The Board is specifically prohibited from issuing advisory opinions and thus may not render an opinion in a matter that is moot. 5 U.S.C. § 1204 (h); Gregory , 91 M.S.P.R. 52, ¶ 7. 4 ¶8 Accordingly, the respondent’s request is dismissed. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MARKEY_JAMES_CB_7521_16_0013_N_1_ORDER_DISMISSING_REQUEST_FOR_A_STAY_2032503.pdf	2023-05-17	null	CB-7521	NP
3,130	https://www.mspb.gov/decisions/nonprecedential/PAYTON_MATTHEW_DA_0752_18_0141_X_1_FINAL_ORDER_2032541.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MATTHEW PAYTON, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER DA-0752 -18-0141 -X-1 DATE: May 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Rebecca L. Fisher , Esquire, San Antonio, Texas, for the appellant. Yvette K. Bradley , Esquire, Dallas, Texas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 This compliance proceeding was initiated by the appellant’s petition for enforcement of the Board’s April 30, 2018 order in Payton v. U.S. Postal Service , 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 MSPB Docket No. DA -0752 -18-0141 -I-1, in which the administrative judge accepted the parties’ settlement agreement into the record for enforcement purposes. Payton v. U.S. Postal Service , MSPB Docket No. DA -0752 -18-0141 -I- 1, Initial Appeal File (IAF), Tab 17, Initial Decision (ID). On November 16, 2020, the administrative judge issued a compliance initial decision finding the agency not in compliance with the Board’s April 30, 2018 order. Payton v. U.S. Postal Service , MSPB Docket No. DA -0752 -18-0141 -C-1, Compliance File (CF), Tab 7, Compliance Initial Decision (CID). For the reasons discussed below, we find the agency in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 On January 5, 2018, the appella nt filed an appeal alleging that the agency subjected him to an enforced leave or constructive suspension action. IAF, Tab 1. On April 30, 2018, the administrative judge, pursuant to a settlement between the parties, issued an initial decision dismissing the appeal as settled and accepting the settlement agreement into the record for enforcement purposes. ID at 1 -2. The settlement agreement called for, inter alia , the appellant to request a voluntary downgrade to a labor custodial position, and the agen cy to grant his request and to transfer him to the Corsicana Post Office. IAF, Tab 16 at 5 -6. The agreement specifically stated that the appellant’s new position would provide a salary of $57,935. Id. at 5. The initial decision became the final decisio n of the Board on June 4, 2018, when neither party petitioned for review. ID at 3. ¶3 On August 12, 2020, the appellant filed a petition for enforcement of the settlement agreement. CF, Tab 1. The appellant alleged that the agency was not in compliance wit h the settlement agreement because it transferred him to a labor custodial position officially designated as part -time, rather than full -time. CF, Tab 1 at 4 -5. The appellant further alleged that, since June 2020, the agency had stopped providing him ful l-time hours. Id. The agency responded to the appellant’s claims by arguing that it was in compliance because the appellant’s 3 hourly wage of $27.85 was the equivalent of the previously agreed upon full -time salary for his position. CF, Tab 4 at 7 -8. ¶4 On November 16, 2020, the administrative judge found the agency not in compliance with the settlement agreement. CID at 1 -7. The administrative judge found that, because the agreement expressed the appellant’s salary at an annual rate, as opposed to an h ourly rate, the parties’ intent was that the appellant’s position would be full -time. CID at 6. The administrative judge also noted that the appellant occupied a full -time position before the downgrade and that the settlement agreement did not support a change in that designation. Id. As such, the administrative judge held that the agency’s placement of the appellant in a part-time position breached the settlement agreement. CID at 6 -7. Accordingly, the administrative judge ordered the agency to place the appellant in a full -time Labor Custodial position effective May 12, 2018, as well as pay the appellant all required back pay, benefits, and interest. CID at 7. The administrative judge further ordered the agency to inform the appellant in writing of all actions taken to reach compliance. CID at 8. ¶5 Neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114 . As such, pursua nt to 5 C.F.R. § 1201.183 (b)-(c), the administrative judge’s findings of noncompliance became final, and the appellant’s petition for enforcement was referred to the Board for a final de cision on issues of compliance. Payton v. U.S. Postal Service , MSPB Docket No. DA -0752 -18-0141 -X-1, Compliance Referral File (CRF), Tab 1. ¶6 On January 6, 2020, the agency informed the Board and provided evidence reflecting that it had created a full -time Labor Custodial position at the Corsicana Post Office for the appellant and was currently processing the Postal Service (PS) Form 50, Notification of Personnel Action, to reflect that the appellant occupied 4 that position.3 CRF, Tab 2 at 4, 6 -8. The agen cy also stated and provided evidence showing that it had initiated the back pay process and had contacted the appellant for his required signatures . Id. at 4-5, 9-23. ¶7 On March 26, 2021, the Board issued an order noting that the agency had not yet submit ted a PS Form 50 reflecting that the appellant’s position had been modified as required, nor had it submitted evidence demonstrating that it paid all back pay and interest to the appellant. CRF, Tab 4 at 2. The Board thus ordered the agency to provide evidence as to whether a new PS Form 50 had been processed, as well as evidence showing that the appellant had provided him all required back pay and benefits. Id. The Board also ordered the agency to include full details of its back pay calculations and a narrative summary of the payments . Id. ¶8 On June 29, 2021, the agency submitted a new compliance report . CRF, Tab 6. The agency’s submission include d a PS Form 50 indicating that the appellant’s position had been redesignated as full -time, along with m ultiple reports on back pay payments made to the appellant. Id. at 9 -21. The submission did not, however, include the required narrative summary of the payments explaining what was paid to the appellant. CRF, Tab 6. Thus, on July 21, 2021, the Board is sued a second order on compliance, requiring the agency to submit a narrative summary regarding the back pay and interest payments. CRF, Tab 7. ¶9 On July 21, 2021, the agency submitted its final compliance report. CRF, Tab 8. The new report included a nar rative explaining the payments made to the 3 On February 12, 2021, the agency submitted a pleading indicating that the parties had reached a settlement agreement on the issue of outstanding attorney fees. CRF, Tab 3. The appellant had not, howe ver, filed a petition for attorney fees with the Board, and the settlement agreement did not contain a waiver regarding the remainder of his claims, including the petition for enforcement at issue in the present matter. Therefore, we here adjudicate only the issues raised in the appellant’s petition for enforcement, and we find that the attorney fee issue is not presently before us. 5 appellant, along with the prior evidence of compliance from the previous compliance report. Id. ANALYSIS ¶10 A settlement agreement is a contract and, as such, will be enforced in accordance with contract law. Burk e v. Department of Veterans Affairs , 121 M.S.P.R. 299 , ¶ 8 (2014). The Board will enforce a settlement agreement that has been enter ed into the record in the same manner as a final Board decision or order. Id. When the appellant alleges noncompliance with a settlement agreement, the agency must produce relevant material evidence of its compliance with the agreement or show that there was good cause for noncompliance. Id. The ultimate burden, however, remains with the appellant to prove breach by a preponderance of the evidence. Id. ¶11 The agency’s outstanding compliance issues were its obligations to redesignate the appellant’s positi on as full -time and provide him all outstanding back pay, benefits, and interest. CID at 7 -8. The agency’s submissions demonstrate that it has now met all of its obligations. The August 12, 2021 submission includes evidence that the agency redesignated the appellant’s position as full -time as of May 12, 2018. CRF, Tab 8 at 6. The submission further includes evidence that the agency provided the appellant all back pay, benefits, and interest owed as a result of him not being allowed to work full -time hours starting in June 2020, along with the required explanation of the payments. Id. at 4 -5, 7-23. The appellant did not respond to or challenge these submissions, and we therefore assume that he is satisfied with the agency’ s compliance. See Baumgartner v. Department of Housing and Urban Development , 111 M.S.P.R. 86, ¶ 9 (2009). ¶12 Accordingly, in light of the agency’s evidence of compliance and the appellant’s lack of a response, the Board finds the agency in compliance and dismisses the petition for enforcement. This is the final decision of the Merit 6 Systems Protection Board in t his compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORN EY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF T HE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Alth ough we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how court s will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is containe d within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 8 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calen dar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer a nd to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decisio n. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 9 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washingt on, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petit ion for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decisi on. 5 U.S.C. § 7703 (b)(1)(B). 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of compete nt jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following addre ss: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Ap peals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services pro vided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	PAYTON_MATTHEW_DA_0752_18_0141_X_1_FINAL_ORDER_2032541.pdf	2023-05-17	null	DA-0752	NP
3,131	https://www.mspb.gov/decisions/nonprecedential/STANDLEY_VAUGHN_HOEFLIN_DC_1221_18_0284_X_1_FINAL_ORDER_2032544.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD VAUGHN HOEFLIN STAND LEY, Appellant, v. DEPARTMENT OF ENERGY , Agency. DOCKET NUMBER DC-1221 -18-0284 -X-1 DATE: May 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Vaughn Hoeflin Standley , Gainesville, Virginia, pro se. Saul Ramos , Albuquerque, New Mexico, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 On August 30, 2019, the administrative judge issued a compliance initial decision finding the agency in noncompliance with a November 21, 2018 initial 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 decision, which granted, in part, the appellant’s request for corrective action in his individual right o f action (IRA) appeal. Standley v. Department of Energy , MSPB Docket No. DC-1221 -18-0284 -C-1, Compliance File (CF), Tab 22, Compliance Initial Decision (CID) ; Standley v. Department of Energy , MSPB Docket No. DC-1221 -18-0284 -W-1, Initial Appeal File, Tab 29, Initial Decision (ID). For the reasons discussed below, we now find the agency in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 In the November 21, 2018 initial decision , the administrative j udge found that the appellant proved his prima facie case of whistleblower reprisal and that the agency failed to prove by clear and convincing evidence that it would have taken some of the same actions in the absence of his protected activity —namely, rating him as “Fully Meets Expectations ” in Specific Performance Objective (SPO) #1 for Fiscal Years (FY) 2015 and 2016. ID . Accordingly, she granted , in part, the appellant’s request for corrective action in his IRA appeal and ordered the agency to reconstr uct his FY 2015 and FY 2016 rating s of record for SPO #1 and to provide him any associated bonus or other award to which he was entitled in light of his reconstructed ratings . ID at 48-49. After neither party filed a petition for review, the initial decision became the final decision of t he Board on December 26, 2018. ID at 50; see 5 C.F.R. § 1201.113 . ¶3 On February 8, 2019, the appellant petitioned for enforcement of the initial decision , arguing that the agency had failed to properly reconstruct his performance rating for SPO #1 in accordance with the initial decision . CF, Tab 1. The administrative judge agreed, issuing an August 30, 2019 compliance initial decision granting the petition for enforceme nt and ordering the agency to change the appellant’s FY 2015 and FY 2016 rating s for SPO #1 to “Significantly Exceeds Expectations” and to provide him any associated bonus or other award to which he was entitled in light of the upgrad ed rating . CID at 10-11. On 3 October 4, 2019, the agency filed with the Board a notice of compliance indicating that it had changed the appellant’s rating s as ordered by the administrative judge and that it had determined that the upgraded ratings entitled him to additional performance award s of $1,5 653 for FY 2015 and to $1,528 for FY 2016. Standley v. Department of Energy , MSPB Docket No. DC-1221 -18- 0284 -X-1, Compliance Referral File (CRF), Tab 1 at 2, 4. The agency provided copies of the corre cted performanc e appraisals for FY 2015 and FY 2016. Id. at 5-17. ¶4 In an October 4, 2019 acknowledgment order, the Clerk of the Board informed the appellant that he could respond to any agency submission regarding compliance within 20 days of the date of service and that, in the absence of a response, the Board may assume that he is satisfied and dismiss the petition for enforcement. CRF, Tab 2 at 2. The appellant responded on October 10 and 21 , 2019, stating that he had not received the additional bonu s awards and arguing that the responsible agency officials should be sanctioned for their delay and repeated failures to timely comply with the Board’s orders. CRF, Tab s 3-4. ¶5 On November 4, 2019, the agency submitted additional evidence of compliance, including Standard Forms (SF) 50 (Notifications of Personnel Actions) correcting the appellant’s lump sum performance awards for FY 2015 and FY 2016 to reflect increases of $1,565 and $1,528, respectively. CRF, Tab 5 at 5-6. The agency also provided an em ail showing that the request to process the correct ed payments was sent to the Defense Finance and Accounting Service (DFAS) on October 23, 2019, and that, according to DFAS, it would process the 3 Although the agency’s pleading states that the ap pellant would receive an additional $1,519 for his FY 2015 performance award, CRF, Tab 1 at 2, the attached evidence reflects that he was entitled to an additional $1,565, id. at 4. In light of other evidence submitted by the agency, it appears that the a dditiona l bonus amount of $1,565 for FY 2015 is correct and was paid, and that the agency’s reference to $1,519 was a typographical error. CRF, Tab 5 at 5 (SF -50 correcting the appellant’s FY 2015 performance award from $569 to $2,134, a difference of $1 ,565). 4 payments within 30 days. Id. at 7. The appellant did not respond to the agency’s additional evidence of compliance. ¶6 When the Board finds a personnel action unwarranted, the aim is to place the appellant, as nearly as possible, in the situation he would have been in had the wrongful personnel action not occurred. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011); King v. Department of the Navy , 100 M.S.P.R. 116 , ¶ 12 (2005), aff’d per curiam , 167 F. App ’x 191 (Fed. Cir. 2006). The agency bears the burden to prove compliance w ith the Board ’s order by a preponderance of the evidence.4 Vaughan , 116 M.S.P.R. 319 , ¶ 5; 5 C.F.R. § 1201.183 (d). An agency ’s assertions of compliance must include a clear explanation of its compliance actions supported by documentary evidence. Vaughan , 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency ’s evidence of compliance by making specific, nonconclusory, and supported assertions of continued noncompliance. Id. ¶7 As set forth above, the administrative judge found that the agency failed to demonstrate by preponderant evidence that it properly reconstructed the appellant’s performance appraisals for FY2015 and FY2016 with respect to SPO #1. Accordingly, she directed the agency to change the appellant’s rating for SPO #1 in his FY 2015 and FY 2016 performance appraisals from “Fully Meets Expectations” to “Significantly Exceeds Expectations” and to provide him with any associated bonus or other award to which he was entitled in li ght of these upgraded ratings. CID at 10-11. The agency has now submitted evidence showing that it changed the appellant’s rating of record for SPO #1 to “Significantly Exceeds Expectations” in both his FY 2015 and FY 2016 performance appraisals and that it sent to DFAS for processing and payment 4 A preponderance of the evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q). 5 additional performance awards in the amount s of $1 ,565 for FY 2015 and $1 ,528 for FY 2016 . CRF , Tab 1 at 4-8, 11 -15, Tab 5 at 5 -7. The appellant has not disputed that the agency correctly changed his rating of record in accordance with the compliance initial decision , nor has he challenged the calculation or payment of the additional performance awards stemming from the improved ratings . ¶8 In light of the foregoing , we find that the agency is now in compliance and dismiss the petition for enforcement .5 This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees a nd costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal. 5 To the extent that the appellant requests that the Board sanction the agency for its delay in paying him the additional performance awards , the Board lacks authority to impose sanctions once compliance has been obtained. Bruton v. Department of Veterans Affairs , 112 M.S.P.R. 313 , ¶ 14 (2009). 6 NOTICE OF APPEAL RIG HTS6 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board d oes not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of thi s final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact tha t forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for 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. 7 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is avail able at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in secur ing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decis ion—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color , religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 8 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request fo r review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 9 disposition of allegations of a prohibited personnel practice describe d in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 inform ation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 7 The original statutory provis ion that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellan ts to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroa ctive 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/CourtWeb sites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	STANDLEY_VAUGHN_HOEFLIN_DC_1221_18_0284_X_1_FINAL_ORDER_2032544.pdf	2023-05-17	null	DC-1221	NP
3,132	https://www.mspb.gov/decisions/nonprecedential/MCMAHON_MICHAEL_J_PH_0831_17_0313_I_1_FINAL_ORDER_2032561.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MICHAEL J. MCMAHON, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER PH-0831 -17-0313 -I-1 DATE: May 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael J. McMahon , Henryville, Pennsylvania, pro se. Michael Shipley , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petiti on for review of the initial decision, which affirmed the final decision of the Office of Personnel Management (OPM) finding that he had received a refund of his retirement deductions to the Civil Service Retirement System (CSRS) following his resignation from the Federal service. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of s tatute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of di scretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulati ons, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The a ppellant was employed by the U.S. Postal Service until his resignation in February 1989. Initial Ap peal File (IAF), Tab 6 at 15. According to records produced by OPM, h e requested a refund of his retirement deductions that month, and OPM authorized the r elease of funds in two separate payments in March and October 1989. Id. at 12 -16. In April 2017, the appellant applied for deferred retirement benefits. Id. at 6-11. OPM denied his request in May 2017, finding that he was not eligible to receive annuit y benefits under the CSRS because he had applied for and received a refund of his retirement deductions . Id. at 4-5. He subsequently filed an appeal with the Board. IAF, Tab 1. Following a telephonic hearing, the administrative judge issued an initial decision affirming OPM’s decision . IAF, Tab 14, Initial Decision (ID) at 1, 6. ¶3 On review, the appellant repeats his assertion that he does not remember receiving the refund checks authorized by OPM more than 28 years prior. Petition for Review (PFR) File , Tab 1 at 4. He notes that the Application for Refund of Retirement Deductions (OPM Form 1425) in the record containing his 3 signature also contains a signature from an agency official indicating that the agency had received a Standard Form 2802 (SF-2802) regarding the refund request, which cannot be retrieved . Id. Regarding the issue of whether he received notice of the consequences of receiving a refund of his retirement deductions to a future annuity, the appellant argues that the administrative judge erred in “thinking that everyone receives the proper documentation when they resign or retire from a job.” Id. Finally, he asserts that there was no “paper trail of evidence on the agency’s part” to prove that he received the refund of his retirement deductions and that a reasonable person would believe that he had not received the refund . Id. at 5. ¶4 For the reasons set forth in the initial decision, the appellant has failed to show by preponderant evidence2 that he is entitled to the CSRS annuity he seeks . ID at 2 -6; see Cheeseman v. Office of Personnel Management , 791 F. 2d 138 , 140-41 (Fed. Cir. 1 986) . Although he argues that OPM has not provided documentary evidence showing that he received the refund checks, the appellant bears the burden of proving nonreceipt of refunded retirement deductions and he has failed to do so . PFR File, Tab 1 at 5; see Manoharan v. Office of Personnel Management , 103 M.S.P.R. 159 , ¶ 12 (2006). OPM’s normal business records showing the appellant’s application for a refund of his retirement deductions and OPM’s authorization of the two refund checks are entitled to substantial weight. See Rint v. Office of Personnel Management , 48 M.S.P.R. 69 , 72, aff’d , 950 F.2d 731 (Fed. Cir. 1991) (Table). The administrative judge found that the appellant’s testimony that he did not recall re questing or receiving a refund, despite acknowledging that his signature was on the application form, did not overcome OPM’s evidence regarding the refund. ID at 4; see Hillen v. Department of the Army , 35 M.S.P.R. 453 , 460 (1987). The administrative judge made a reasonable 2 A preponderance of the evidence is that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more lik ely to be true than untrue. 5 C.F.R. § 1201.4 (q). 4 credibility determination based on a review of the record as a whole, and we find no basis to disturb it on review . See Haebe v. Department of Justice , 288 F.3d 1288 , 1302 (Fed. Cir. 2002). The appellant’s reference on review to an alleged additional SF -2802 completed with his request for a refund of his retirement deductions provides no basis for disturbing the administrative judge’s explained findings giving substantial weight to OPM’s busine ss records. PFR File, Tab 1 at 4. ¶5 As noted in the initial decision, the record is unclear whether the copy of OPM Form 1425 signed by the appellant contained the reverse side with notice language regarding the forfeiture of his annuity rights and neither party produced a copy of the revers e side . ID at 5. To the extent that the appellant argues that the administrative judge’s reference to the description of the contents of OPM Form 1425 in the unpublished opinion in Wade v. Office of Personnel Management , 466 F. App’x 886 (Fed. Cir. 2012) , constituted a finding that the form he completed contained this notice language, he mischaracterizes the initial decision. PFR File, Tab 1 at 4; ID at 5. The administrative judge made no finding in the initial decision whether the appellant received no tice of the consequences of obtaining a refund of his retirem ent deductions . ID at 4 -5. Rather, the administrative judge correctly found that it was immaterial whether the appellant received such notice or the agency provided him an outdated form . ID at 5-6 (citing Youngblood v. Office of Personnel Management , 108 M.S.P.R. 278, ¶ 13 (2008); Danganan v. Office of Personnel Managem ent, 55 M.S.P.R. 265, 269 (1992) , aff’d , 19 F.3d 40 (Fed Cir. 1994) (Table)). The appellant requested and received a refund of his CSRS retirement deductions and is not a current Federal employee making retirement deductions . Therefore, he is not entitled to receive an annuity or redeposit his withdrawn deductions . See 5 U.S.C. §§ 8334 (d)(1), 8342(a) . Federal retirement law does not provide an exception based on insufficient or misleading information about the consequences of applying for and receiving a refund of retireme nt deductions, and the Board 5 lacks the authority to award an annuity based on such equitable considerations. See Conway v. Office of Personnel Management , 59 M.S.P.R. 405 , 412 (1993); Danganan , 55 M.S.P.R. at 2 69; Mahan v. Office of Personnel Management , 47 M.S.P.R. 639 , 641 (1991). ¶6 Accordingly, we deny the petition for review and 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, t he nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available a ppeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within thei r jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result i n the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that f orum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final d ecisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decis ion—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file 7 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color , religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for revi ew to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 8 (3) Judicial review pursuant to the Whistleblower Protection Enhanc ement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judici al review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdi ction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. C ourt of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono repr esentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MCMAHON_MICHAEL_J_PH_0831_17_0313_I_1_FINAL_ORDER_2032561.pdf	2023-05-17	null	PH-0831	NP
3,133	https://www.mspb.gov/decisions/nonprecedential/LECH_VANESSA_DE_1221_17_0038_W_1_FINAL_ORDER_2032566.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD VANESSA LECH, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DE-1221 -17-0038 -W-1 DATE: May 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Vanessa Lech , Raeford, North Carolina, pro se. Scott MacMillan , Phoenix, Arizona, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her individual right of action (IRA) appeal as untimely filed. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact ; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not availab le when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that 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 . BACKGROUND ¶2 The appellant was employed as a Social Worker with the agency. Initial Appeal File (IAF), Tab 14, Initial Decision (ID) at 2. She alleged below that , beginning in November 2014 , she reported supervisory misconduct and safety concerns to various agency personnel and others . IAF, Tab 6 at 11, Tab 11 at 4-5. She also alleged that she engaged in protected activities, such as filing an equal employment opportunity (EEO) complaint and a grievance . IAF, Tab 6 at 11, Tab 11 at 4 -6. In April 2015, she filed complaint with the Office of Special Counsel (OSC) , alleging that the agency retaliated against her for these disclosures and activities . IAF, Tab 6 at 11-15, Tab 9 at 3, Tab 11 at 5-7. ¶3 By letter dated August 31, 2015, OSC closed its investigation into the appellant’s complaint and advised her that she may have the right to seek corrective action with the Board. IAF, Tab 1 at 4 . The letter stated that the appellant could file a reques t for corrective action with the Board within 65 days after the date of the letter. Id. 3 ¶4 On October 23, 2016, the appellant filed this IRA appeal with the Board. IAF, Tab 1. Without holding the appellant’s requested hearing, the administrative judge dismissed the appeal as untimely filed. Id. at 2; ID at 2, 8. ¶5 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 ARGUME NTS ON REVIEW ¶6 If OSC notifies an employee that its investigation into her allegations has been terminated, the employee may seek corrective action from the Board through an IRA appeal “no more than 60 days have elapsed since notification was provided to such employee.” 5 U.S.C. § 1214 (a)(3)(A) (ii). The Board’s implementing regulations provide that an appellant must file an IRA appeal within 65 days of the date that OSC issues the close -out letter o r, if the letter is received more than 5 days after its issuance, within 60 day s of receipt. 5 C.F.R. § 1209.5 (a)(1). ¶7 The appellant alleged that OSC’s “notification was not sent directly to [her] from OSC during the 65 day timeline.” IAF, Tab 13 at 4. She asserted that OSC sent the close -out letter to her former lawyer, and that he “did not provide [her] with any explanation of what the OSC letter meant. ” Id. (emphasis in original) . She stated that she “eventually fired this lawyer ” for failing to communicate with her. Id. However, as the administrative judge noted, the appellant failed to state when she personally received the OSC termination letter. Id.; PFR File, Tab 1 at 13; ID at 5. ¶8 In Goode v. Department of the Navy , 93 M.S.P.R. 122 , ¶¶ 3, 5 (2002), the Board considered the case of an appellant who sim ilarly asserted that OSC’s termination letter was sent to his attorney rather than himself. However, because the appellant failed to state when he received the letter, the Board found that the appellant’s IRA appeal was due within 65 days after OSC issued its termination letter. Id., ¶ 5. 4 ¶9 Because the appellant here has failed to state when she personally received the OSC termination letter, we find that she was required to file her IRA appeal by November 4, 2015.2 See id.; see also Pacilli v. Department of Veterans Affairs , 113 M.S.P.R. 526 , ¶ 9 (finding that , because the appellant failed to allege that she did not re ceive OSC’s termination letter within 5 days of its issuance, she was required to file her IRA appeal within 65 days of its issuance), aff’d per curiam , 404 F. App’x 466 (Fed. Cir. 2010) ; ID at 5; PFR File, Tab 1 at 13 . Thus , she filed her Board appeal almost 1 year late. ¶10 Unlike some other filing deadlines with the Board, the deadline for filing an IRA appeal may not 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). 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 her 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 her rights diligently and some extraordinary circumstances stood in her way. Id. ¶11 We agree with the a dministrative judge’s finding that the appellant ’s claims below that her attorney’s alleged poor representation , and OSC ’s alleged refusal to provide her with guidance , did not warrant tolling the filing deadline . ID at 5-8. On review, she provides addit ional allegations and documentation to support her claim of poor representation. According to the appellant, her attorney did not “check his mailbox” for 7 days after the agency mailed him notification of the appellant’s right to request a hearing before the Equal Employment 2 Applying a 5 -day mailing time presumption, the administrative judge found that the appellant was required to file her IRA appeal by November 9, 2015. ID at 5. However, the Board’s regulation alre ady applies a 5 -day mailing time presumption to the 60 -day statutory deadline for filing an IRA appeal following the issuance of an OSC termination letter. 5 C.F.R. § 1209.5 (a)(1) ; see 5 U.S.C. § 1214 (a)(3)(A) (ii). 5 Opportunity Commission on her EEO complaint. PFR File, Tab 1 at 4 -5, 15 -16. Even if we were to consider this new argument and evidence on review, it evidences, at most , “garden variety . . . excusable neglect” that is insu fficient to toll the deadline. Irwin v. Department of Veterans Affairs , 498 U.S. 89 , 96 (1990) (denying the equitable tolling of a deadline when the petitioner filed an untimely district court complaint because of his attorney’s absence from his office when notice was received ); Pacilli , 113 M.S.P.R. 526 , ¶¶ 10 -11 (denying equitable tolling despite the appellant’s claim that her former attorney had problems with alcohol and depressi on, was disbarred , and wa s under criminal investigation , because the appellant did not make any claim that her former attorney thwarted her efforts to file a timely IRA appeal ); see also Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (explaining that t he 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 availabl e desp ite the party ’s due diligence) . ¶12 The appellant also clarifies that she is alleging that an OSC attorney would not discuss her complaint following the close -out letter, not before , as the administrative judge stated in the initial decision. ID at 7; PFR File, Tab 1 at 4, 13. She further states , apparently in response the administrative judge’s finding that she could have attempted to obtain information regarding her rights on the Board’s website, that she “look[ed] at the [Board’ s] website at one point and [] was overwhelmed and had zero idea what [the Board] was or what [she] was supposed to do.” ID at 7 -8; PFR File, Tab 1 at 13 ; IAF, Tab 5 at 3 . However, the appellant has not explained how OSC or the Board’s website discouraged or hindered her from filing an appeal. Pacilli , 113 M.S.P.R. 526 , ¶¶ 10-11 (declining to apply equitable tolling when an appellant alleged tha t OSC represented that it would “rule” in her favor and instructed her not to file a Board appeal). 6 ¶13 The appellant also alleges on review that she suffered from a work -related medical condition , which hindered her ability to represent herself “ 110% ,” and that she is financially disadvantaged as compared to the agency. PFR Fil e, Tab 1 at 13 -17. In support of these claims, she attaches documents that predate the initial decision. Id. at 9-12. The appellant does not explain why she did not present these arg uments or documents below, and we decline to consider them on review. See Banks , 4 M.S.P.R. at 271. Accordingly, we dismiss this IRA appeal as untimely filed.3 ¶14 Finally, the appellant has requested that her “name and all identifying information about” her “be excluded from any public file(s) regarding this matter.” PFR File, Tab 1 at 18. A litigant seeking anonymity before the Board must present evidence establishing that harm is likely, not mere ly possible, if her name is disclosed. Ortiz v. Department of Justice , 103 M.S.P.R. 621 , ¶ 10 (2006). Here, the appellant has failed to indicate why she is requesting to proceed anonymously, much less present evidence establishing that harm would result otherwise. Accordingly, her request is denied. 3 When jurisdiction may be lacking but the record is sufficiently developed on the timeliness issue, an administrative judge may, in an appropriate case, assume argu endo that an appeal presents a matter within the Board’s jurisdiction and dispose of it on timeliness grounds. Hudson v. Office of Personnel Management , 114 M.S.P.R. 669 , ¶ 7 (2010) . We agree with the administrative judge that this is such a case. ID at 1 -2 n.1; IAF, Tab 6 at 11, 13, 17 -21; see Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016) (setting forth the appellant’s jurisdictional burden in an IRA appeal, including the exhaustion requirement). Thus, we have not considered the appellant’ s evidence and argument on review regarding whether she exhausted with OSC her claim that the agency’s retaliatory harassment forced her to resign. PFR File, Tab 1 at 7-8, 14. 7 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 th e U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for 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 hav e updated the notice 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. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, 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, cost s, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review t o the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) o r other protected activities listed in 5 U.S.C. § 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 personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Feder al 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 whistleb lower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decision s in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Sta t. 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/Cou rt_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	LECH_VANESSA_DE_1221_17_0038_W_1_FINAL_ORDER_2032566.pdf	2023-05-17	null	DE-1221	NP
3,134	https://www.mspb.gov/decisions/nonprecedential/MOHR_SANDRA_T_PH_0714_18_0400_X_1_FINAL_ORDER_2032570.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SANDRA T. MOHR, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER PH-0714 -18-0400 -X-1 DATE: May 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Laura Reznick , Esquire, Garden City, New York, for the appellant. Melissa Lolotai , Esquire, Washington , D.C., for the appellant. Paul P. Kranick , Esquire, Philadelphia, Pennsylvania, for the agency. BEFORE Cathy A. Harr is, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 In a May 29, 2020 compliance initial decision, the administrative judge found the agency in noncompliance with a November 2018 settlement agreement that had been entered into record for enforcement in the underlying appeal . Mohr v. Department of Veterans Affairs , MSPB Docket No. PH-0714 -18-0400 -C-1, Compliance File (CF), Tab 13, Compliance Initial Decision (CID); Mohr v. Department of Veterans Affairs , MSPB Docket No. PH-0714 -18-0400 -I-1, Initial Appeal File (IAF) , Tab 18, Initial Decision (ID) . For the reasons discussed below, we now find the agency in compliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIAN CE ¶2 In November 2018, the parties entered into a settlement agreement resolving the appellant’ s appeal , MSPB Docket No. PH-0714 -18-0400 -I-1. The agreement provided , in relevant part, that the agency would place in the appellant’s Offici al Personnel Folder (OPF) a Standard Form 50 reflecting that she had resigne d and a neutral reference stating the dates of her employment , length of service, and salary . Id. at 5. In a November 26, 2018 initial decision that became the final decision of the Board after neither party petitioned for administrative review, the administrative judge dismissed the appeal as settled and entered the settlement agreement into the record for purposes of enforcement. ID at 1 -2. ¶3 On November 8, 2019, the appellant filed a petition for enforcement alleging that the agency breached the settlement agreement by failing to provide a neutral reference to a prospective employer. CF, Tab 1. In the compliance initial decision, the administr ative judge agreed, finding that the agency materially breached the neutral reference provision of the settlement agreement when an agency supervisor informed a prospective employer that he would never hire the appellant back . CID at 3, 5 -6. Accordingly, the administrative judge granted the 3 appellant’s petition for enforcement and ordered the agency to comply with its obligations under the settlement agreement —specifically, to place the neutral reference indicating the appellant’s dates of employment, len gth of service , and salary , in her OPF and to ensure that all future job references pertaining to the appellant do not contain any negative information about her employment .3 CID at 8. ¶4 The administrative judge informed the agency that, if it decided to take the actions ordered in the compliance initial decision , it must submit to the Clerk of the Board a narrative statement and evidence establishing compliance . CID at 9. In addition, he informed both parties that they could file a petition for review of the compliance initial decision if they disagreed with the findings therein . CID at 9-10. Neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114 . As such , pursuant to 5 C.F.R. § 1201.183 (b)-(c), the administrative judge’s findings of noncompliance became final, and the appellant’s petition for enforcement was referred to the Board for a final decision on issues of compliance. Mohr v. Department of Veterans Affairs , MSPB Docket No. PH -0714 -18-0400 -X-1, Compliance Referral File (C RF), Tab 1. ¶5 On July 7, 2020 , the Board issued an acknowledgment order directing the agency to submit evidence showing that it ha d complied with all actions identified in the compliance initial decision. CRF, Tab 1 at 3. In response, the agency stated that it intended to fully comply wit h the Board’s orders and submitted evidence reflecting that a neutral reference letter containing the 3 The administrative judge informed the appellant t hat, as the non -breaching party, she could elect to have th e settlement agreement rescinded and the appeal reinstated in lieu of enforcement by filing a request for reinstatement no later than 30 calendar days after the initial decision became final. CID at 8-9. The appellant did not elect to rescind the settlement agreement and reinstate the appeal. Accordingly, she is deemed to have elected enforcement of the settlement agreement. 4 information specified in the settlement agreement had been placed in the appellant’s OPF. CRF, Tab 2 at 4-6, 12. In addition, the agency provided a declaration under penalty of perjury from a Strategic Busines s Partner in the Human Resources Management Service attesting that supervisors and employees are routinely informed of their “continuing obligation” to refer employment inquiries by prospective emplo yers regarding former employees to human resources. Id. at 13 -14. The agency provided copies of July 10 and 17, 2020 emails from the Strategic Business Part ner to facility supervisors instructing them to confer with a labor relations specialist or human resources prior to responding to reference requests and to direct all inquiries regarding former employees to the Chief of Human Resources. Id. at 15-16. Finally, the agency provided a declaration under penalty of perjury from the supervisor found to hav e improperly provided a negative reference to the appellant’s prospective employer , in which he states, among other things, that he ha s been counseled on the requirements of the settlement agreement and that he “will refrain from providing any information to anyone with respect to the Appellant’s prior employment .” Id. at 17. ¶6 In an August 10, 2020 response to the agency’s statement and evidence of compliance , the appellant argues that she “is not satisfied because the damage has already been done” and that the agency “has not taken satisfactory steps to ensure that another breach will not happen.” CRF, Tab 5 at 4 . She also argues that she believes the agency’s breach was willful and discriminatory and notes that she intends to file a motion to recover attorney’s fees. Id. at 5. ¶7 A settlement agreement is a contract and, as such, will be enforced in accordance with contract law. Burke v. Department of Veterans Affairs , 121 M.S.P.R. 299 , ¶ 8 (2014). The Board will enforce a settlement agreement that has been entered into the record in the same manner as a final Board decision or order. Id. When the appellant alleges noncompliance with a settlement agreement, the agency must produce relevant material evidence of its compliance with the agreement or show that there was good cause for noncompliance. Id. 5 The ultimate burden, however, remains with the appellant to prove breach by a preponderance of the evidence. Id. ¶8 As described above, in the compliance initial decision, the administrative judge found that the agency materially breached the settlement agreement by providing negative information to a prospective employer . CID at 5 -7. Accordingly, the administrative judge ordered the agency to comply with its neutral reference obligation s under the settlement agreement and to ensure that future job references pertaining to the appellant do not contain any negative information about her employment . Id. at 8. The agency’s submissions show that it has now reached full compliance with this obligation. CRF, Tab 2. In particular, as set forth above, the agency provided evidence establishing that it has placed in the appellant’s OPF the neutral reference letter stating only her dates of employment, length of service, and salary. Id. at 12 -13. In addition, the agency’s evidence reflects that that supervisors and employees are being routinely notified of their obligation to refer any prospective employer inquiries regarding former employees to human resources and that the appellant’s former supervisor has specifically been counseled not to provide any information about the appellant to anyone and to refer all inquiries to human resour ces. Id. at 13 -17. ¶9 The appellant’s arguments in response to the agency’s compliance submission provide no basis to find that the agency has not satisfied its compliance obligations. CRF, Tab 5. First, w e find no merit to the appellant’s cursory assert ion that the steps the agency has taken are insufficient to ensure another breach will not occur . Second, in light of the fact that the appellant elected to enforce compliance with the settlement agreement rather than rescind it, her argument s that the “d amage has already been done” and that the agency’s actions were willful and discriminatory are misplaced . The appellant had the option to rescind the settlement agreement and reinstate her appeal , as well as to petition for review of the compliance initia l decision, but did not do so. Accordingly, this proceeding is limited to whether the agency has demonstrated 6 that it has complied with the actions identified in the compliance initial decision. Lastly, the appellant’s assertion that she incurred attorne y fees and litigation costs as a result of the agency’s breach are likewise misplaced in this compliance proceeding and, as the administrative judge correctly informed her, must be brought in a separate proceeding .4 CID at 8. ¶10 In light of the foregoing, we find that the agency is now in compliance and dismiss the appellant’s petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Re gulations, sec tion 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agenc y for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees mo tion with the office that issued the initial decision on your appeal. 4 On September 4, 2020, the appellant filed a petition for attorney fees and litigation costs related to her petition for enforcement. Mohr v. Department of Veterans Affairs , MSPB Docket No. PH -0714 -18-0400 -A-1, Attorney Fee File (AFF), Tab 1. In a November 9, 2020 initial decision, the administrative judge denied the request as untimely filed without good cause shown. AFF, Tab 9, Initial Decision. The attorney fee initial decision became the final decision of the Board on Decemb er 14, 2020, after neither party filed a petition for administrative review. Id. at 5. 7 NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable t ime limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a pe tition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional info rmation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action in volves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 9 requirement of prepayment of fees, costs, or other secur ity. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial deliver y or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 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 allega tions of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for t he Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants, ” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.m spb.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, 2 017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 represe ntation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts .gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MOHR_SANDRA_T_PH_0714_18_0400_X_1_FINAL_ORDER_2032570.pdf	2023-05-17	null	PH-0714	NP
3,135	https://www.mspb.gov/decisions/nonprecedential/ROMINE_MICHELLE_PH_0752_17_0373_X_1_FINAL_ORDER_2032573.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MICHELLE ROMINE, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER PH-0752 -17-0373 -X-1 DATE: May 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michelle Romine , Vero Beach, Florida, pro se. Rayetta Waldo and Tonda J. Waugh , Huntington, West Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 In a March 8, 2019 compliance initial decision , the administrative judge found the agency in noncompliance with a January 18, 2018 settlement agreement , which had been entered into the record for enforcement by the Board in the underlying appeal . Romine v. Department of the Army , MSPB Docket No. PH-0752 -17-0373 -C-1, Compliance File (CF) , Tab 29, Compliance Initial Decision (CID); Romine v. Department of the Army , MSPB Docket No. PH-0752 - 17-0373 -I-1, Initial Appeal File (IAF) , Tab 21, Tab 23, Initial Decision (ID) . Accordingly, the administrative judge granted the appellant’s petition for enforcement and ordered the agency to comply with its obligations under the settlement agreement. CID at 13. For the reasons discussed below, we now find the agency in com pliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 On June 30, 2017, the agency removed the appellant from her position as a Contract Specialist with the U.S. Army Corps of Engineers . IAF, Tab 6 at 13. The appellant appealed her removal to the Board. IAF, Tab 1. On October 5, 2017, the agency moved to dismiss the appeal as moot, asserting that it had rescinded the removal and was returning the appellant to duty. IAF, Tab 11. The adminis trative judge denied the motion, however, because the agency stated that it would not pay the appellant back pay and because the appellant had a claim of disability discrimination for which she could receive compensatory damages. IAF, Tab 12. On January 18, 2018, the parties filed a written settlement agreement in which the y agreed that the appellant would withdraw her appeal and that the agency would provide her “ back pay in accordance with the Back Pay Act” for the period from August 6 through September 30, 2017, and a lump sum payment in attorney fees. IAF, Tab 21 at 4. The settlement agreement specified that the agency would complete its part in processing the back pay payment within 30 days with the recognition that final processing and payment requ ired 3 coordination with the regional civilian personnel processing office and the Defense Finance and Accounting Service (DFAS). Id. The parties filed a supplement to the agreement stating that they wished to have the agreement entered into the record for enforcement purposes. IAF, Tab 22. On January 19, 2018, the administrative judge issued an initial decision dismissing the appeal as settled and enter ing the settlement agreement into the record for enforcement by the Board. ID at 1-2. The initial dec ision became the final decision of the Board after neither party filed a n administrative petition for review. ID at 3; see 5 C.F.R. § 1201.113 . ¶3 On May 21, 2018, the appellant filed a petition for enforcement alleging that the agency had not paid her back pay pursuant to the settlement agreement . CF, Tab 1 at 3. Thereafter, t he agency submitted evidence showing that it had issued the following tw o checks to her: (1) a June 7, 2018 check in the net amount of $2,805.62, which represented $7,068.80 in total wages for the four pay periods , plus a $628.88 lump sum payment for 28 hours of annual leave, minus the appellant’s unpaid advance sick leave ba lance of $3,181.21 and deductions totaling $1,710.85 for mandatory employee retirement contributions ($56.55), Social Security ($280.02) and Medicare ($65.49) taxes, life insurance premiums ($29.40), Federal ($522.27) and state ($333.00) income tax, and a thrift savings plan contribution ($424.12) ; and (2) a June 21, 2018 check in the amount of $3,668.61 , which included $201.92 in interest on the back pay wages of $7,068.80, calculated from the date she would have received the pay through May 22, 2018, and $3,466.69 in “erroneously refunded ” Federal Employee Health Benefit (FEHB) premiums minus tax withholdings .3 CF, Tab 5 at 6 -9, 15 -16. 3 In a sworn declaration, a supervisor for the Settlement/Theater Support Team within Civilian Pay Operations at DFAS explained that, due to several errors by the agency and DFAS, the appellant received an “erroneous refund” of FEHB premiums for 15 pay periods in the amount of $3,739.50 . CF, Tab 5 at 8, 10 -11. She stated that the payment of $3,466.69 comprised the “erroneous refund” of $3,739.50 minus Social Security 4 ¶4 In the March 8, 2019 compliance initial decision , the administrative judge found that the agency was not in compliance with the settlement agreement. CID. Specifically, he found that, although the agency eventually sent checks to the appellant in June 2018, she had not received or negotiated those checks. CID at 8. In addition, he found that the agency improperly offset the advance sick leave debt from the back pay award . CID at 9 -12. Accordingly, the administrative judge ordered the agency to take the following actions: (1) recalculate the back pay owed to the appellant under the terms of the settlement agreement; (2) solicit the appellant’s cooperation in canceling the prior checks that were issued to her but not received or negotiated by her; and, (3) issue payment to the appellant of the correct amount of back pay due within a reasonabl e period of time. CID at 13. The administrative judge further instructed the agency to recalculate the interest owed on the recalculated and reissued back pay award pursuant to 5 C.F.R. § 550.806 (a)(2) , which provides that “[i]nterest accrual ends at a time selected by the agency that is no more than 30 days before the payment of the back pay interest payment.” CID at 9. Neither party petitioned for review of the compliance initial dec ision by April 12, 2019, and it therefore became the final decision of the Board. CID at 15; see 5 C.F.R. § 1201.113 . ¶5 On April 12, 2019, the agency informed the Board that it had reca lculated the appellant’s back pay award consistent with the compliance initial decision but that DFAS had been unable to issue the checks to the appellant because she had not completed the paperwork required to cancel the prior checks and reissue payment . Romine v. Department of the Army , MSPB Docket No. PH-0752 -17- taxes ($92.74), Medicare taxes ($21.69), Federal income tax ($92.38), and state income tax ($66.00) . Id. at 9 -12. The DFAS supervisor also s tated that the erroneously refunded FEHB premiums, together with the uncollected Social Security and Medicare taxes, would be established as a debt that the appellant would be required to repay. Id. at 9-10. 5 0373 -X-1, Compliance Referral File (CRF), Tab 1. In a June 12, 2020 order, the Board directed the agency to provide an update on the status of the back pay payment. CRF, Tab 3 at 1 -2. In resp onses dated July 6 and 10, 2020, the agency stated that it had received the requisite forms from the appellant , that it had forwarded them to DFAS in February 2020, and that DFAS issued a “replacement check ” to the appellant on July 10, 2020, in the amount of $6,474.23, i.e., the total amount of the two prior checks ( $2,805.62 and $3,668.61) . CRF, Tabs 4 -5. The agency did not address its compliance with the administrative judge’s order to pay the appellant the advance sick leave debt it previously offset from the back pay award or to recalculate the interest . The appellant responded that she had received the check but that the back pay amount was incorrect because the agency had again improperly offset the advance sick leave debt from the back pay award. CRF, Tab 6 at 3. ¶6 In a September 24, 2020 order , the Board directed the agency to provide additional information regarding its compliance with its obligations to: (1) to pay the appellant the amount it previously offset from the back pay award; and (2) recalculate and pay the interest owed to the appellant pursuant to 5 C.F.R. § 550.806 (a)(2). CRF, Tab 8. The order advised the appellant that she could reply to the agency’s submission within 21 calendar days of service and that, if she did not respond, the Board might assume that she was satisfied and dismiss her petition for enforcement. Id. at 3-4. ¶7 On October 15, 2020, the agency responded to the Board’s order , asserting that it ha d taken the required actions and was in compliance with the settlement agreement . CRF, Tab 9. As evidence, the agency provided a sworn affidavit from a DFAS analyst stating that a check was being processed and should be received by the appellant on or before October 22, 2020, in the amount of $3,569.60, which consisted of previously withheld amount of $3,181.21 plus $388.39 in interest . Id. The agency submitted a back pay computation su mmary report reflecting that it calculated the additional interest on the $3,181.21 from 6 May 13 , 2018 , through September 22 , 2020, which resulted in the total interest payment of $388.39. Id. at 9-10. The appellant did not respond to the agency’s October 15, 2020 submission. ¶8 A settlement agreement is a contract and, as such, will be enforced in accordance with contract law. Burke v. Department of Veterans Affairs , 121 M.S.P.R. 299 , ¶ 8 (2014). The Board will enforce a settlement agreement that has been entered into the record in the same manner as a final Board decision or order. Id. When the appellant alleges noncompliance with a settlement agreement, the agency must produce relevant material evidence of its compliance with the agreement or show that there was good cause for noncompliance. Id. The ultimate burden, however, remains with the appellant to prove breach by a preponder ance of the evidence. Id. ¶9 As described above, in the compliance initial decision, the administrative judge found that the agency failed to establish that it had complied with its obligation to pay the appellant the appropriate amount of back pay for the four pay periods , from August 6 through September 30, 2017, pursuant to the settlement agreement. CID at 1-13. The agency has now submitted evidence showing that it sent the appellant a “replacement check ” on July 10, 2020, for $6,474.23, the total amount of the two June 2018 checks ($2,805.62 and $3,668.61 ). CRF, Tabs 4-5. As the July 10, 2020 check replaced the two June 2018 checks, we find that this paymen t, like the June 2018 checks, includes , before appropriate deductions, the follow ing: $3,887.59 in back pay wages (i.e., total back pay wages of $7,068.80 minus $3,181.21 as payment for the appellant’s advance sick leave debt ), $201.92 in interest on the back pay wages, a $628.88 lump sum payment for annual leave, and an “erroneous re fund” for FEHB premiums in the amount of $3,466.69.4 CF, Tab 5; CRF, Tabs 4 -5, 9. The agency 4 It is unclear why the agency reissued to the appellant in October 2020 the $3,466.69 refund for FEHB premiums (less tax withholdings) given that, according to the agency’s 7 has also submitted a sworn declaration attesting that DFAS was processing a check that the appellant would receive no later than October 22, 2020, for the outsta nding back pay wages in the amount of $3,181.21 , plus $388.39 in interest . CRF, Tab 9 at 9-10. In light of this evidence and the fact that the appellant has not challenged these calculations or payments , we find the agency in compliance with its obligati on under the settlement agreement to pay the appellant back pay for the four pay periods. See Baumgartner v. Department of Housing and Urban Development , 111 M.S.P.R. 86 , ¶ 9 (2009) (assuming that an appellant who did not respond to the agency’s evidence of compliance was satisfied with the agency’s compliance). ¶10 Regarding interest , the Back Pay Act provides that interest on back pay begins to accrue on the date or dates the employee would have received the pay and stops accruing on a date that is no more than 30 days before the back pay interest payment will be made.5 5 U.S.C. § 5596 (b)(2)(B)(i) ; 5 C.F.R. § 550.806 (a)(2). As described above, the agency’s evidence reflects that : (1) on June 21, 2018, it paid the appellant $201.92 in interest on her total back pay wages of $7,068,80 , which accrued from August 6 through May 22, 2018, CF, Tab 5 at 9, 18 -19; and (2) on October 22, 2020, it paid the appellant $388.39 in interest on the $3,181.21 of previously withheld back pay wages , which accrued from May 13, 2018 through September 22, 2020, CRF, Tab 9 at 4, 9 -10. ¶11 First, we find that the agency properly calculated back pay interest on the $3,181.21 portion o f the back pay wages that it initially withheld from the appellant’s back pay award as payment for her advance sick leave debt . The prior submissions, the refund was erroneously paid in June 2018 due to compounded errors by the agency and DFAS. CF, Tab 5 at 8, 10 -11. Nonetheless, the agency’s apparent overpayment to the appellant does not preclude us from finding the agency in compliance with its obligations under the settlement agreement. 5 As noted above, the settlement agreement provided that the agency would provide the appellant back pay in accordance with the Back Pay Act. IAF, Tab 21 at 4. 8 evidence reflects that the agency paid the appellant interest on this amount as part of its June 21, 2018 interest payment, which included interest on the full amount of back pay wages for the period from the date the appellant would have earned the pay through May 22, 2018. CF, Tab 5 at 6 -9, 18-19. Although the agency did not pay the appellant this portion of her back pay w ages within 30 days of May 22, 2018, the agency’s evidence reflects that the appellant received a check for $3,181.21 no later than October 22, 2020, along with an additional $388.39 in interest, covering the period from May 13, 2018, through September 22, 2020. CRF, Tab 9 at 7-10. Accordingly, consistent with the Back Pay Act, the agency paid the appellant interest on the $3,181.21 portion of her back pay award from the date she would have earned it through within 30 days of payment. ¶12 Second, although t he agency attempted , in June 2018, to pay the appellant the $3,887.59 portion of back pay wages and $201.92 in interest calculated through May 22, 2018, the appellant did not receive it until after the agency reissued payment on July 10, 2020 . Thus, under the Back Pay Act, the appellant is entitled to additional interest on this portion of her back pay award through a date no more than 30 days from July 10, 2020. However, the agency sent the June 7 and 21, 2018 checks to the appellant’s address of record, and the appellant did not provide the paperwork required to cancel the prior checks and reissue payment until early 2020, despite repeated efforts by the agency to obtain the forms beginning in October 2018 . CF, Tab 25 ; CRF, Tabs 1, 4 -5, 9. Accordingly, we find that the appellant is, in part, responsible for the agency’s delay in reissuing her back pay payment . See Coe v. U.S. Postal Service , 101 M.S.P.R. 575 , ¶¶ 13 -14 (2006) ( holding that, when an appellant does not cooperate with the agency ’s efforts to achieve compliance, the Board may deny the petition for enforcement). Moreover, the appellant has not challenged the agency’s interes t calculations, despite being notified of her opportunity to respond to the agency’s evidence of compliance and that the Board might construe her decision not to respond as evidence that she was satisfied with the 9 agency’s compliance. CRF, Tabs 3, 7 -8. Given the appellant’s failure s to maintain a current address with the agency and timely return the paperwork required to reissue the June 7, 2018 payment , as well as her decision not to respond to the agency’s evidence regarding its interest payments , we find the agency is compliance with its obligation to pay interest on the back pay award . See Baumgartner , 111 M.S.P.R. 86 , ¶ 9. ¶13 In light of the foregoing, we find that the agency is now in compliance and dismiss the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulation s, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for y our 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 1201.20 3. If you believe you meet these requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal. NOTICE OF APPEAL 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). 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of re view rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 10 Although we offer the following summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular foru m is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S . Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petiti on for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informat ion about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Pr actice, and Forms 5, 6, 10, and 11. 11 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC rev iew of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action inv olves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other securi ty. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the 12 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request f or review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petit ion for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your petition for 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on 13 review within 60 days of the date of issuance of this decisi on. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following addre ss: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Ap peals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services pro vided by any attorney nor warrants that any attorney will accept representation in a given case. December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ROMINE_MICHELLE_PH_0752_17_0373_X_1_FINAL_ORDER_2032573.pdf	2023-05-17	null	PH-0752	NP
3,136	https://www.mspb.gov/decisions/nonprecedential/MILLER_ROBERT_M_DC_0752_20_0790_I_1_FINAL_ORDER_2031949.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ROBERT M. MILLER, Appellant, v. FEDERAL DEPOSIT INSU RANCE CORPORATION, Agency. DOCKET NUMBER DC-0752 -20-0790 -I-1 DATE: May 16, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Robert M. Miller , Fairfax, Virginia, pro se. Aaron Wade Norman , Arlington, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which made the following findings: (1) the appellant is not entitled to corrective action in the individual right of action (IRA) appeal ; and (2) in the indefinite suspension appeal, the agency properly imposed the indefinite suspension, the indefinite 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been id entified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 suspension should have ende d on April 8, 2021, and the appellant did not prove any of his affirmative defenses. For the reasons discussed below, we GRANT the agency’s petition for review . We AFFIRM the administrative judge’s finding that the agency properly imposed the indefinite suspension and the appellant did not prove any of his affirmative defenses in the indefinite suspension appeal . We VACATE the administrative judge’s finding that the April 8, 2021 letter satisfied the condition subsequent and the agency should have ended the indefinite suspension on April 8, 2021. Instead, we FORWARD the claim involving the propriety of the continuation of the indefinite suspension to the Washington Regional Office for docketing as a new appeal and adjudication. We also DENY the appellant’s motion for interim relief. Except as expressly MODIFIED by this Final Order , we AFFIRM the initial decision. DISCUSSION OF ARGUME NTS ON REVIEW ¶2 On review , the agency argues that the administrative judge erroneously concluded that it improperly continued the indefinite suspension after its receipt of the appellant’s physician’s April 8, 2021 letter. Miller v. Federal Deposit Insurance Corporation , MSPB Docket No. DC -0752 -20-0790 -I-1, Initial Appeal File (IAF), Tab 55 at 5 -6, Tab 65, Initial Decision (ID) at 30 -32; Petition for Review (PFR) File, Tab 1 at 5, 11 -13.2 The agency asserts that it was error for the administrative judge to conclude that the letter was sufficient justification to return the appellant to work “despite obvious questions about the letter’s accuracy and reliability” and even though Federal Occupational Health (FOH) medical experts were still evaluating the adequacy of the medical documentation at the time of the hearing . PFR File, Tab 1 at 5, 16 -18. The agency also asserts that the letter was produced after the deadline passed for submitting exhibits, and the letter itself was never introduced or otherwise accepted as an exhibit. Id. at 5, 2 Because the IRA appeal and indefinite suspension appeal were joined, IAF, Tab 22, we only cite to the 0790 matter. 3 11-13. Importantly, t he agency argues that it was prejudiced by the administrative judge’s consideration of the April 8, 2021 letter , particularly after the administrative judge stated that the agency’s response to the letter was not relevant during the hearing . Id. at 19. The agency contends that, if the administrative judge changed her view about the relevance and admissibility of the letter and the agency’s responses thereto, she should have informed both parties that she wished to hear this evidence and give n both parties an opportunity to respond and e nsure that the record was fully developed on this issue. Id. Finally, t he agency asserts that it has new evidence, in the form of a May 13, 2021 letter from an FOH Occupational Medicine Consultant , which supports the need for an independent medical exami nation . Id. at 19 -20, 29. We vacate the administrative judge ’s finding in the indefinite suspension appeal that the appellant satisfied the condition subsequent and the agency should have ended the indefinite suspension on April 8, 2021.3 ¶3 The impositio n of an indefinite suspension and the failure to terminate that suspension after the satisfaction of the condition subsequent4 are “separately reviewable . . . action[s].” Rhodes v. Merit Systems Protection Board , 487 F.3d 1377 , 1381 (Fed Cir. 2007); Jones v. Department of the Army , 111 M.S.P.R. 350, ¶¶ 11-12 (2009). “An inquiry into the propriety of an agency ’s imposition of an indefinite suspension looks only to facts relating to events prior to suspension that are proffered to support such an imposition. Facts and events that occur after the suspension has been imposed have no bearing on such an inquiry.” Rhodes , 3 Neither party challenged the initial decision’s findings regarding the IRA appeal; thus, only the suspension appeal is pending before the Board on petition for review. Additionally, neither party challenged the findings from the initial decision that: (1 ) the agency properly imposed the indefinite suspension; and ( 2) the appellant did not prove any of his affirmative defenses related to the imposition of the indefinite suspension . We affirm the administrative j udge’s findings in this regard. 4 The parties do not challenge, and we discern no error with, the administrative judge’s finding that the indefinite suspension had an ascertainable end, i.e., a determination that the appellant was fit for duty. ID at 29. 4 487 F.3d at 1380. Conversely, “[a]n inquiry into the propriety of an agency ’s failure to terminate an indefinite suspension . . . look[s] to facts and events that occur after the suspension was imposed.” Id. Once a condition subsequent has occurred, “the agency must terminate the suspension withi n a reasonable amount of time.” Id. at 1380 -81. Thus, “[t]he inquiry in such a case therefore looks to whether an identified condition subsequent has occurred after the suspension was imposed and whether the agency acted within a reasonable amount of tim e to terminate the suspension.” Id. at 1381. ¶4 The indefinite suspension appeal before us only involves the imposition of the indefinite suspension, not the continuation of the indefinite suspension following the agency’s receipt of the April 8, 2021 lett er. We could not find any indication in the record that the administrative judge advised the parties that the continuation of the indefinite suspension was an issue that she intended to adjudicate in addition to the imposition of the indefinite suspension . In fact, in the order and summary of telephonic prehearing conference, the administrative judge stated that “the parties will only be allowed to litigate the issues described [therein ],” and nowhere did she indicate in that order that she would adjudica te the continuation of the indefinite suspension. IAF, Tab 56 at 1, 6. Moreover, the administrative judge’s statements during the hearing buttress the conclusion that the issue of the continuation of the indefinite suspension was not before her . In pertinent part, the agency attorney asked the administrative judge during the hearing if she wanted evidence about the agency’s decision after it receive s FOH input . Hearing Transcript (HT) 1 at 248. The administrative judge stated that such evidence was “not relevant at this point because it’s not an action that’s occurred .” Id. The administrative judge acknowledged that “it might moot out the action down the road,” but it “ha[d] no bearing upon the case [that day].” Id. ¶5 Because the imposition of the indefinite suspension is the only issue before us in the indefinite suspension appeal, we conclude that the administrative judge erred when she sua sponte considered the April 8, 2021 letter in the initial 5 decision ,5 decided that the letter satisfied the condition subsequent, and concluded that the agency should have terminated the indefinite suspension on this date. We therefore vacate the administrative judge’s finding s in this regard . Because the parties are entitled to notice and an opportunity to pr esent evidence and argument on the propriety of the agency’s decision to continue the indefinite suspension, and any related affirmative defenses, we forward this claim to the Washington Regional Office for docketing as a new appeal and adjudication .6 We deny the motion for interim relief. ¶6 Because the appellant was the prevailing party below with respect to the continuation of the indefinite suspension, the initial decision should have contained a statement on interim relief. 5 C.F.R. § 1201.111 (b). Because interim relief was not explicitly addressed in the initial decision, the appellant became entitled to interim relief by operation of statute . See 5 U.S.C. § 7701 (b)(2)(A) ; Stewart v. Department of Transportation , 2023 MSPB 18 , ¶ 10. The appellant raises this issue in a “Motion for Interim Relief ,” which he filed after the close of the record on review. PFR File, Tab 5. However, a “Motion for Interim Relief” is not contemplated in the Board’s regulations. See Bryant v. Depar tment of the Army , 2022 MSPB 1 , ¶ 6 (“[T]he Board’ s regulations do not allow for a petition for enforcement of an interim relief or der.”). Nor did the appellant file a timely request for dismissal under 5 C.F.R. § 1201.116 (d), which states that if an agency has not provided “required interim relief,” the appellant must file a request for dismissal of the agency’s petition for review within 25 days of the date of the 5 The agency correctly notes that the April 8, 2021 letter was not admitted into evidence during the hearing or at any time before the record closed, the administrative judge previously advised the parties that she would “not consider any exhibits that [were] not moved and/or entered into the record at the hearing ,” and she never ruled on the appellant’s motions to supplement his hearing exhibits. HT 1 at 4; HT 2 at 4, 297; IAF, Tab 55, Tab 56 at 19 -20, Tab 62 . 6 We take no position on whether the Apri l 8, 2021 letter satisfied the condition subsequent or whether the agency improperly continued the indefinite suspension after its receipt of this letter . 6 service of the agency’s petition. Furthermore, even if we were to construe this filing as a challenge to the agency’s certification of compliance under 5 C.F.R. § 1201.116 (b), we would decline to consider it on the basis that it was untimely filed. See Harding v. Department of Veterans Affairs , 115 M.S.P.R. 284 , ¶ 9 (2010) , aff’d , 451 F. App’x 947 (Fed. Cir. 2011) .7 Likewise, to the extent that this motion could be considered as a cross petition for review, we would decline to consider it because it would be untimely under 5 C.F.R. § 1201.114 (e). NOTICE OF APPEAL RIG HTS8 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 claim s determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 7 We note that pursuant to 5 C. F.R. § 1201.116 (g), if the initial decision granted the appellant interim relief, but the appellant is not the prevailing party in the final Board order disposing of a petition for review, and the appellant believes that the agency has not provided full in terim relief, the appellant may seek to file an enforcement petition with the regional office under 5 C.F.R. § 1201.182 . Upon our issuance of this final Board order, the appellant may file a petition for enforcement with the regional office if he still believes the agency has not provided full interim relief . 5 C.F.R. § 1201 .116 (g). 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. 7 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your cas e, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If yo u are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimin ation . This option applies to you only if you have claimed that you 8 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action in volves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other secur ity. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims onl y, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 9 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 2 0507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petit ion for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decisi on. 5 U.S.C. § 7703 (b)(1)(B). 9 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following addres s: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of App eals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services prov ided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MILLER_ROBERT_M_DC_0752_20_0790_I_1_FINAL_ORDER_2031949.pdf	2023-05-16	null	DC-0752	NP
3,137	https://www.mspb.gov/decisions/nonprecedential/KREIPKE_CHRISTIAN_CH_1221_15_0284_W_1_FINAL_ORDER_2031979.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DR. CHRISTIAN KREIPK E, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER CH-1221 -15-0284 -W-1 DATE: May 16, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shereef Akeel , Esquire, Troy, Michigan, for the appellant. Amy C. Slameka , Esquire, and Kristi Glavich , Esquire, Detroit, Michigan, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which granted the appellant’s request for corrective action in this individual right of action (IRA) appeal. Generally, we grant petitions such as this one only in the followin g circumstances: the initial decision contains erroneous findings of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201. 115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review . Except as expressly MODIFIED to find that the administrative judge should not have ordered interim relief, we AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant , a part -time Health Science Specialist at the Veterans Administration’s (VA’s) John D. Dingell VA Medical Center , filed this IRA appeal alleging that the agency terminated him and failed to renew his excepted service tem porary appoi ntment in reprisal for his disclosures of grant fraud at the agency and at Wayne State University (WSU) , where he held a dual appointment as an Assistant Professor under a Memorandum of Understanding . Initial Appeal File (IAF), Tab 1 at 6, Tab 8 at 6, 17-20, 23 , 78 -79, 81 , 83 . The agency terminated the appellant , effective October 11, 2013, when his temporary appointment expired .2 IAF, Tab 11 at 6 -11. The appellant alleged that, in 2 It appears that the appointment from which the agency terminated the appellant was a temporary appointment, rather than a term appointment, because the Standard Form 50 indicates that it was time l imited for a period of less than 1 year. IAF, Tab 11 at 9; see Usharauli v. Department of Health and Human Services , 116 M.S.P.R. 383, ¶ 11 n.3 (2011); compare 5 C.F.R. § 316.301 (a) (describing term appointments as lasting for 3 reprisal for his disclosures, WSU and the VA investigated him and charged him with research misconduct, which led WSU to terminate him in February 2012 , and the VA to later terminate his active Merit Review Award, allow his appointment to expire, prohibit him from receiving VA research funds for 10 years, and seek the retraction of two articles published in the journal Neurological Research. IAF, Tab 1 at 57 , Tab 8 at 7 , 22. The appellant also asserted that the agency acted in reprisal for grievances he filed by failing to compensate him for $34,000 in salary and be nefits allegedly owed to him under a VA grant, blocking a grant that would have expired in 2016, preventing him from receiving VA funding for 10 years, and changing his working conditions by confiscating his computer, erasing his research data, and firing his staff. IAF, Tab 1 at 1, 6, Tab 8 at 8-10, 22, Tab s 9-11, Tab 72 at 4 -5. ¶3 In its Administrative Investigation Report , an Administrative Investigation Board (AIB) found 11 instances in which the appellant falsified research in publications, articles, and /or award applications by using the same image of certain tissue, biological processes , graphs, or blots to describe different experimental conditions. IAF, Tab 1 at 8 -9, 10-12, 71. For example, the agency asserted that the appellant used the same image in a 2011 article published in the journal Neurological Research , two National Institutes of Health grant applications, a VA Merit Review application, and VA Research Day posters in 2009 and 2010 , to depict sensorimotor cortex tissue , from animals subjecte d to traumatic brain injury (TBI) , that had been treated with different antagonists or antibodies administered at different times and obtained at different lengths of time after TBI. Id. at 11-16. The agency asserted that these images were found in files located on the appellant’s computer with file names that were inconsistent with the above depictions. E.g., id. at 18, 25. The AIB recommended the termination of the appellant’s “active Merit Re view Award entitled ‘Poly -trauma more than 1 year but no more than 4 years) , with 5 C.F.R. § 316.401 (a) (describing temporary appointments as those that are not expected to last longer than 1 year). 4 following brain injury: t owards a combinatorial therapy,’ ” a prohibition on his receipt of VA research funds for 10 years, and a retraction of the affected articles that were published in 2010 and 2011 in the journal Neuro logical Research. Id. at 57. ¶4 After a 6-day hearing, the administrative judge issued an initial decision finding that the appellant proved by preponderant evidence that the above actions constituted appealable personnel actions3 and that he had a reasonabl e belief that he made protected disclosure s of a violation of law, rule, or regulation in the form of grant fraud by the VA and by WSU that involved its dispers al of VA funds . IAF, Tab 119, Initial Decision (ID) at 2-3, 10, 12, 14-15. She also found that the appellant engaged in protected activity by filing a grievance that sought a remedy for a violation of 5 U.S.C. § 2302 (b)(8), which prohibits reprisal for whistleblowing . ID at 12-13. The administrative judge further found that the appellant proved that his disclosures and protected activity were contributing factor s in the personnel actions because the acting officials knew of the disclosures and activity and the personnel actions occurred within a period of time such that a reasonable person could conclude that the disclosures and protected activity were contributing factors in th ose actions . ID at 15 -16. ¶5 In addition, t he administrative judge held that the agency did not prove by clear and convincing evidence that it would have taken the same personnel actions absent the appellant’s disclosures . ID at 17 . The administrative judge found that the agency’s evidence was not strong because (1) the evidence did not support a finding that it was the appellant’s actions, as opposed to those of his research partner or interns assisting on the research —all of whom had access to the shared computer on which the research data in question w as found —that resulted in any falsif ied research, (2) the AIB did not have the authority to 3 The failure to renew a temporary appointment, as well as the expiration of an appointment resulting from an agency’s failure to extend the appointment, are appealable “personnel actions .” Usharauli , 116 M.S.P.R. 383 , ¶ 11. 5 investigate the appellant ’s involvement because the research it investigated did not involve a VA grant or VA funding , and thus did not meet the definition of medical research under the appl icable VA Handbook definition , (3) there was no evidence that any of the falsified data/graphs were prepared at the VA, as opposed to at the WSU laboratory, (4) it was unclear what harm the agency suffered or gain the appellant received even if the data/gr aphs had been falsified, given that there was no indication that the conclusions would have been different if the correct data had been used, (5) another researcher’s name also appeared on the articles who was mainly responsible for the lab and who shared in the lab over sight responsibilities, and ( 6) any falsification was not willful and intentional, as found by the agency, but due to inadvertent inaccuracies and lax oversight of the lab . ID at 3, 18-30. ¶6 The administrative judge also found that the agency had a motive to retaliate because it continued to investigate the appellant for the same reasons , even though a VA Research Integrity Officer , Dr. K, twice investigated the matter and found insufficient evidence to convene an AIB , there was a s trong academic relationship between WSU and the VA, and “[a]n inference can clearly be made that [the acting official] was attempting to appease WSU and protect their relationship by acquiescing in WSU’s continued interference with the VA’s employment of t he appellant.” ID at 4, 31-37. Thus, the administrative judge found a motive to retaliate stemm ing from WSU’s improper influence on the agency to take action s against the appellant. ID at 37. The administrative judge found that the agency’s failure to show that it takes similar actions against employees who are not whistleblowers, including against a nonwhistleblower co-author of the relevant articles, was a factor weigh ing against the agency . ID at 37-38. Finally, the administrative judge found that the appellant proved that the agency created a hostile work environment in reprisal for his protected activity , but that “the appellant’s claims that he is still owed money under grant(s) and was subjected to a hostile work environment are not fully develo ped 6 as to the appropriate relief and are issues for supplemental proceedings for consequential and compensatory damages.” ID at 39-40. ¶7 The administrative judge ordered the agency to rescind its decision to terminate the appellant’s active Merit Review Award, rescind its decision to terminate his appointment and pay him any monies owed under the VA Merit Award/VA grants as a result of the termination of his appointment for VA research, and rescind its decision prohibiting him from receiving VA funds for 10 years. ID at 41. She also ordered the agency to provide interim relief . Id. ANALYSIS The administrative judge should not have ordered interim relief in this case . ¶8 The agency asser ts on review that the “practical application of the interim order is not feasible nor is it within the scope of MSPB’s authority” because a research misconduct investigation committee determined that the appellant committed research misconduct and the Boar d cannot overrule that decision, nor can the agency return him to his former position because “by law ,” he can no longer perform his job functions . Petition for Review (PFR) File, Tab 1 at 10 . The agency also contends that the grant under which the appel lant received funding has expired, and his temporary appointment has expired without an additional appropriation of research funds . Id. at 11 -12. Thus, it asserts that the interim relief order is inappropriate . Id. at 13. The agency submits a letter informing the appellant and his attorney that “the practical application of the interim order is not feasible nor is it within the scope of MSPB’s authority.” Id. at 67. The letter further provides that the appellant is unable to return to his former H ealth Science Specialist position where his purpose is to conduct research, and that it is “unreasonable per se to place the Appellant on the payroll when by law he cannot perform the functions of his job.” Id. Thus, the letter inform s the appellant and his attorney that it “is not able to satisfy the requirement of 5 U.S.C. § 7701 (b)(2)(A)(ii) and (B).” Id. at 69. 7 ¶9 The appe llant has moved to dismiss the petition for review , asserting that the agency has not complied with the interim relief order by either returning him to duty or making a determination that his return would be unduly disruptive and providing him with pay and benefits . PFR File, Tab 3 at 5-7. ¶10 The appellant’s temporary appointment expired effective October 11, 2013 , before the issuance of the March 10, 2017 initial decision . IAF, Tab 11 at 6 -9, Tab 119 at 1 . Similarly, the Merit Review Award , which funded the appellant’s position, expired 3 years after it ha d been awarded in October 2010. IAF, Tab 42, Subtab 7 at 2, Tab 59 at 56 -57. An administrative judge should not order interim relief if, by the date of the initial decision, an appellant’s term appointment has expired. Herrin v. Department of the Air Fo rce, 95 M.S.P.R. 536 , ¶ 16 (2004) . Under these circumstances, we agree with the agency that the administrative judge should not ha ve ordered interim relief in the form of rescinding the termination of the temporary appointment and the Merit Review Award , both of which had expired as of the issuance of the initial decision . ¶11 Further, the decision to grant interim relief is a matter of the Board’s discretion. 5 U.S.C. § 7701 (b)(2)(A)(i). I nterim relief may not be appropriate in all cases in which the appellant prevails, and a n administrative judge m ust determine this issue based on the facts of the particular case, balancing the benefits and burdens to the parties anticipated by the process of effecting the interim relief order . Steele v. Office of Personnel Management , 57 M.S.P.R. 458, 463 ( 1993), aff’d , 50 F.3d 21 (Fed. Cir. 1995) (Table) . Thus, for example, administrative judges should exercise caution in granting interim relief in Office of Personnel Management ( OPM ) retirement appeals because doing so may result in OPM’s payment of monies in contravention of its statutory authority and may necessitate OPM’s re covery of the monies paid during the interim relief period if the Board reverses the initial decision. Id. at 463 -64; cf. Paris v. Department of the Treasury , 104 M.S.P.R. 331, ¶ 8 (2006) (holding that, when an appellant is receiving Office of Workers’ Compensation Programs compensation when the 8 initial decision is issued, interim relief generally should not be ordered because doing so could result in the agency’s payment of moni es in contravention of statute) . Similarly, we find here that the administrative judge should not have ordered interim relief in the form of a termination of the agency’s decision to prohibit the appellant from receiving VA funds for 10 years because , amo ng other things, any grant awarded during the interim relief period could result in the early termination of a funded research project , and the grantor’s concomitant need to recover monies paid under the award , if the Board were to reverse the initial decision. We therefore decline to dismiss the agency’s petition for review for failure to provide evidence of compliance with the interim relief order. The administrative judge did not improperly require the agency to prove that the appellant falsified research .4 ¶12 The agency contends that the administrative judge, in finding that the agency’s evidence in support of its actions was not strong, improperly required it to meet the Board’s standard for proving a falsification charge, even though it charged the appellant with research misconduct under a VA directive and its Handbook , which allegedly “have nothing to do with the MSPB charge of ‘falsification’ or any elements contained therein.” PFR File, Tab 1 at 13 -16. Rathe r, the agency asserts that its H andb ook defines falsification as manipulating research materials, equipment, or processes, or changing or omitting data or results such that the research is not accurately represented in the research record. Id. at 15. The agency also asserts that the admini strative judge never informed it that she would be applying this falsification standard in this case . Id. at 13 , 15. ¶13 A memorandum from the Medical Center Director and the report from the AIB include numerous allegations and references conclud ing that the appellant “falsified” research. IAF, Tab 1 at 8 -9, 11 -15, 20, 22, 24 -26, 28 -44, 46, 48 -55, 4 The agency does not challenge on review the administrative judge’s findings that the appellant made protected disclosures that were a contributing factor in the p ersonnel actions at issue in this case. PFR File, Tab 1 at 10 -29. 9 57. In fact, the AIB re port considered whe ther “the preponderance of the evidence indicate[d] that the figures and supporting documentation were falsifie d intentionally, knowingly, or recklessly” by the appellant , and determined that the falsification was intentional, knowing, and wil lful. E.g., IAF, Tab 1 at 10, 18-19, 24-25, Tab 65 at 8 (explaining that, under the VA Handbook, research misconduct, inclu ding falsification, must be committed intentionally, knowingly, or with reckless disregard for the integrity of the research) . Under Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999) , when de ciding whether the agency has shown by clear and convincing evidence that it would have taken the same personnel action in the absence of whistleblowing, the Board must consider , among other things, the “strength of the agency’s evidence in support of its person nel action .” The Board must consider the strength of the agency’s reasons for its action , even in cases such as this when the agency has not taken a typical disciplinary action against the appellant based on misconduct. See Gonzales v. Department of the Navy , 101 M.S.P.R. 248, ¶ 12 (2006). Here, as set forth above, the underlying rationale for the agency’s decision s to terminate the appellant’s Merit Review Award, terminate his te mporary appointment, and prohibit him from receiving VA funds for 10 years, which were specifically recommended by the A IB, was its determination that he had engaged in research misconduct in the form of intentional, knowing, and willful falsification of research publications, articles, and grant applications . Under these circumstances, we find that the re is no material di stinction between falsification under the VA Handbook and falsification as found by the administrative judge in this case. Thus, the agency has shown no error in the administrative judge’s determination that the agency’s allegations that the appellant fal sified medical research was tantamount to a falsification charge, which required the agency to submit proof that the information submitted included a false statement, the false statement was material, and the employee acted with the requisite intent . ID 10 at 23; see Leatherbury v. Department of the Army , 524 F.3d 1293 , 1300 (Fed. Cir. 2008 ). ¶14 Although the agency contends that it had no notice that the administrative judge would apply this falsification standard in determining whether the agency’s evidence in support of its action was strong, the administrative judge informed the agency that it must show by clear and convincing evidence that it would have taken the same personnel actions absent the disclosures and that the Board would consider, among other things, the strength of the evidence the agency used in support of the personnel actions. IAF, Tab 72 at 3. The agency has identified no Board pr ecedent that requir ed the administrative judge to provide a ny more specific notice than that which she provided in this case . PFR File, Tab 1 at 13-16. In any event, the agency does not allege that it would have presented any additional or different evi dence had it known that the strength of it s evidence alleging falsification would depend on whether such evidence showed that the appellant made a material false statement with the requisite intent. Id.; see Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) ( finding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis fo r reversal of an initial decision ). Accordingly, we find no error in the administrative judge’s determination that the agency did not present strong evidence in support of the personnel actions at issue in this case . ID at 18-31. The administrative judge ’s failure to mention the testimony of one of the agency’s witnesses does not mean that she did not consider it . ¶15 The agency asserts that the administrative judge did not address the testimony of Dr. B, the lead research misconduct officer , who testified th at the applicable H andbook the agency followed in its investigation was reissued without a change in the policies contained therein , which permitted the agency to investigate the research misconduct at issue in this case . PFR File, Tab 1 at 17-21. The ad ministrative judge found, in addition to the fact that the agency’s 11 evidence did not show that the appellant engaged in falsification, that the agency’s evidence was not strong because “[t]here is strong evidence the AIB did not have authority to investigate the appellant’s involvement because the research it investigated did not meet the definition of medical research under the applicable VA Handbook definitions previously discussed.” ID at 23, 29 -30. In support of that finding, the administrati ve judge relied on the deciding official’s testimony that the definition of medical research subject to VA investigation changed after the AIB convened to investigate the appellant, but before it issued its report, to include unfunded VA grant applications . ID at 19 -22. She found that the deciding offic ial further testified that the H andbook in effect when the AIB convened applied to the appellant, and found that the AIB made no findings as to the only VA funded grant received by the appellant. ID at 21 -22. ¶16 An administrative judge’s failure to mention all of the evidence of record does not mean that she did not consider it in reaching her decision. Marques v. Department of Health and Human Services , 22 M.S.P.R. 129 , 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). In any event, although Dr. B testified on direct examination that, in his opinion , there was no change when the H andbook was “reissued,” Hearing Transcript (H T) at 1054 -55, 1087 , 1193 -94 (testimony of Dr. B) , he conceded on cross examination that the new version included different, additional language , HT at 115 2-58 (testimony of Dr. B) . We find that the change in language in the different versions of the H andbook at the very least clarified the definition of “VA Research” by indicating that such research “may be funded by VA, by other sponsors, or be unfunded.” Compare IAF, T ab 64 at 122, with IAF, Tab 65 at 11 . Here, t he administrative judge did not definitively find that the agency did not have the authority to conduct its investigation ; rather, she merely found that there was strong evidence that it lacked such authority . ID at 23. Given the ambiguity in the different H andbook versions in this regard , we find that the agency has shown no error in the administrative judge’s determination. See 5 C.F.R. § 1209.4(e) (defining “clear 12 and convincin g evidence” as that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established). ¶17 The agency also asserts that the administr ative judge did not address Dr. B’s testimony that the agency’s prior determinations —that there was insufficient evidence of misconduct to warrant a referral to an AIB —involved different allegations of research misconduct by the appellant than the allegations that ultimately led to the subsequent AIB investiga tion. PFR File, Tab 1 at 18. ¶18 In discussing the agency’s motive to retaliate, the administrative judge reviewed the history of complaints that WSU brought to the agency’s attention, including two separate allegations that were found by Dr. K, an agency R esearch Integrity Officer, to not warrant convening an AIB investigation due to insufficient evidence of research misconduct . ID at 4-5, 31-34. The administrative judge noted Dr. K’s testimony that one of his inquir ies “was on the identical issue the AIB was ultimately charged to investigate.” ID at 33-34. The administrative judge concluded, however, that based on the strong academic relationship between the agency and WSU and the interplay among the various VA and WSU investigative offices, a motive to retaliate “stemmed from the improper influence of WSU over the VA to ta ke action against the appellant ” and the agen cy’s attempt to “appease WSU and protect their relationship by acquiescing in WSU’s continued interference with the VA’s employment of the appellant.” ID at 37. As set forth above, t he administrative judge’s failure to mention the testimony of Dr. B does not mean that she did not consider it. In any event, whether the allegations brought to Dr. K differed from the allegations that led to the AIB investigation does not affect the administrative judge’s finding that a motive to retaliate existed based on the improper influence of WSU and the agency’s attempt to appease it. We therefore find that , to the extent that the administrative judge failed to resolve a contradiction between the testimonies of Drs. K and B, see Spithaler v. Office of Personnel Management , 1 M.S.P. R. 587 , 13 589 (1980) ( finding that an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and i nclude the administrative judge’ s conclusions of law and legal reasoning, as well as the authorities on which that reasoning rests ), any such error did not affect the agency’s substantive rights, see Panter , 22 M.S.P.R. at 282. ¶19 The agency further contends that the administrative judge did not consider Dr. B’s testimony that the VA was obligated t o look into allegations of research misconduct, and that almost all VA researchers hold appointments at affiliated universities , like WSU ; thus, the agency asserts that there was no motive to retaliate against the appellant. PFR File, Tab 1 at 19. Even assuming, however, that the agency was required to investigate all allegations of research misconduct, that fact alone would not undermine the administrative judge’s explained findings that the agency otherwise had a motive to retaliate against the appellant based on his disclosures in this particular case . See Whitmore v. Department of Labor , 680 F.3d 1353 , 1370 (Fed. Cir. 2012) (holding that those responsible for the agency’s performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures, and even if they do not know the whistleblower personally, as the criticism reflects on them in thei r capacities as managers and employees) . Moreover, Dr. B’s testimony regarding appointments at affiliated universities addressed questions as to whether there was a conflict of interest on the part of the appointed AIB members. HT at 1079 -80 (testimony o f Dr. B) . The fact that there may not have been a conflict of interest for the AIB members under the agency’s H andbook does not mean that the agency did not have a motive to retaliate based on whistleblowing activity. ¶20 Finally, a lthough the administrative judge found that the agency did not sufficiently explain the reasons why the agency relieved Dr. K of the responsibility to investigate the appellant after he twice found insufficient evidence to convene an AIB, ID at 37, the age ncy asserts that Dr. B testified that Dr. K was relieved of that responsibility because of a conflict of interest, namely, 14 Dr. K’s being called as a witness on behalf of the appellant in h is WSU grievance , PFR File, Tab 1 at 24 ; HT at 1066 -67 (testimony of Dr. B); HT at 154-55 (testimony of Dr. K) . Even assuming that the agency did provide an explanation for relieving Dr. K of that responsibility , it does not, as explained above, overcome the a dministrative judge’s ultimate finding that the agency did not prove by clear and convincing evidence that it would have taken the same personnel actions in the absence of the appellant’s disclosures based on its weak evidence in support of those actions, its motive to retaliate, and its failure to show that it t ook s imilar actions against non whistleblowers. ID at 17-39. The agency did not show that it t ook similar actions against non whistleblowers . ¶21 The agency asserts on review that Dr. B testified that the agency had permanently prohibited two individuals from recei ving VA funds and conducting VA research because of research misconduct. PFR File, Tab 1 at 22. Thus, it contends that the administrative judge erred when she found that the agency did not present evidence that any action was taken against similarly situ ated nonwhistleblowers . Id.; ID at 37-38. Moreover , the agency asserts that the administrative judge erred when she found that the agency did not take action against Dr. R, a non whistleblower who was a lab partner and co -author on the appellant’s research papers , because Dr. R was no longer a VA employee at the time of the investigation and the agency therefore could not have taken any action against him . PFR File, Tab 1 at 22 -23. ¶22 When de ciding whether an agency has shown by clear and convincing evidence that it would have taken the same personnel action s in the absence of the disclosures , the Board will consider, among other things, any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarl y situated. Carr , 185 F.3d at 1323. Although Dr. B ’s testimony was consistent with the agency’s assertion s on review , he did not testify that the two individuals who were permanently proh ibited from receiving funding for VA research were not whistleblowers. HT at 1111 , 1122-24 15 (testimony of Dr. B) . Thus, the administrative judge correctly found that the agency did not provide evidence that it took actions against similarly situated nonwhistleblowers. ID at 37 -38. As found by the administrative judge, an agency ignores this factor at its own peril, considering the agency’s advantage in accessing this type of evidence . ID at 38; see Miller v. Department of Justice , 842 F.3d 1252 , 1262 (Fed. Cir. 2016). Thus, regardless of the agency’s reasons for not taking action against Dr. R, the non whistleblower co -author of the relevant articles, it has still failed to submit evidence showing that it took similar actions against employees who were not whistleblowers but who were otherwise similarl y situated . We therefore discern no error in the administrative judge’s determination that this factor weighs against the agency. ID at 38. The administrative judge did not err in discrediting an agency exhibit involving newly acquired evidence . ¶23 In its closing sub mission , the agency submitted a n exhibit consisting of a July 13, 2016 retraction notice that it discovered after the close of the record and that it asserted impeached the appellant’s credibility and showed the effect of his research misconduct in the scientific community. IAF, Tab 116. The administrative ju dge struck the exhibit from the record because the record had already closed and the document was not relevant to the agency’s burden of proof , but did not strike the agency’s reference to the exhibit from its closing submission . IAF, Tab s 114, 117 . The administrative judge nevertheless found in the initial decision that th e retraction at issue was actually “ consistent with the appellant’s testimony and evidence of the steps he took once the discrepancy in data was reported to him by the lab student.” ID at 26. The agency contends on review that the administrative judge erred because the appellant did not testify about that retraction notice, but instead testified about a different article, and that it would have been impossible for the appellant to have testified about a retraction notice that was issued only after the hearing concluded and that was included in the agency’s closing submission. PFR File, Tab 1 at 25-26. 16 ¶24 Even assuming that the appellant’s testimony related to a different article than the one at issue in the July 13, 2016 retraction, the agency has not shown that the July 13, 2016 retraction notice itself could have impeached the appellant’s credibility . As of the appellant’s testimony at the hearing on April 26-28, 2016, the retraction no tice in question had not been issued. Thus, the agency has established no basis for finding that his testimony at the hearing, that there had been no retractions of his articles or textbooks, HT at 225 -26 (testimony of the appellant) , was not credible . Moreover, the agency has not otherwise explained how the July 13, 2016 retraction , which occurred after the personnel actions at issue in this case and appears to have involved an article that was not addressed in the AIB report , IAF, Tab 1 at 10 -57, constituted evidence supporting the agency’s ultimate burden of proving by clear and convincing evidence that it would have taken the same personnel actions in the absence of the appellant’s protected disclosures. The agency has not shown that the documents it submits for the first time on review are new and material to the issues in this case . ¶25 The agency submits on review evidence that four journal articles authored by the appellant have been retracted after an investigation by WSU . PFR File, Tab 1 at 27, 31-65. Only t wo of the four retracted articles were addressed in the AIB report. Compare PFR File, Tab 1 at 31-36, 38 -43, with IAF, Tab 1 at 11. The agency contends that, although the administrative judge relied upon a lack of retraction s to suggest that the appellant did not engage in research misconduct and that the agency was retaliating against h im, the retraction of the four articles after the hearing show s the scope of his misconduct . PFR File, Tab 1 at 27 -28. ¶26 Evidence offered merely to impeach a witness’s credibility is generally not considered new and material. Wyeroski v. Department of Transportation , 106 M.S.P.R. 7 , ¶ 9, aff’d , 253 F. App’x 950 (Fed. Cir. 2007) . Thus, to the extent that the agency has submitted the retractions to impeach the appellant’s credibility, it has not shown that this evidence is new and material. Even 17 assuming , however, that the evidence is new, 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 . Rebstock Consolida tion v. Department of Homeland Security , 122 M.S.P.R. 661, ¶ 15 (2015 ). In weighing the agency’s evidence that it would have taken the same personnel actions in the absence of the appellant’s disclosures, the Board must assess the evidence as it stood at the time of the actions. Yunus v. Department of Veterans Affairs , 242 F.3d 1367 , 1372 (Fed. Cir. 2001); Phillips v. Department of Transportation , 113 M.S.P.R. 73, ¶ 12 (2010 ). That is because the actions taken by the agency officials must be weighed in light of what they knew at the time they acted; later developments cannot be used either to support or undercut the validity of the actions taken. Yunus , 242 F.3d at 1372. Therefore, the agency’s proffer of this evidence for the first time on review is not of sufficient weight to establish by clear and convincing evidence that it would have taken the same personnel actions in the absence of the disclosures and does not warrant a different outcome from that of the initial decision. The four retraction articles do not, therefore, provide a basis for granting the agency’s petition for review. See 5 C.F.R. § 1201. 115(a). ¶27 Accordingly, we deny the agency’s petition for review and affirm the initial decision’s determination to award corrective action in this case. ORDER ¶28 We ORDER the agency to rescind its decisions to (1) terminate the appellant’s active Merit Review Award entitled “Poly -trauma followin g brain injury: t owards a combinatorial therapy,” (2) terminate the appellant’s temporary appointment , and to pay him any monies owed under the VA Merit award/VA grants as a result of the termination of his temporary appointment, and (3) prohibit the appellant from receiving VA funds for a period of 10 years . See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The 18 agency must complete this action no later than 20 days after the date of this decision. ¶29 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the app ellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶30 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 Bo ard’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶31 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 appella nt believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appella nt believes that the agency has not fully carried out the Board ’s Order, and should include the da tes and results of any communications with the agency. 5 C.F.R. § 1201.182 (a). ¶32 For agencies whose payroll is administered by either the National Finance Center of the Department of Agri culture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the 19 Board’s decision in accordance with the attached lists so that payment can be made within the 60 -day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 122 1(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T CONSEQUENTIAL AND/ OR COMPENSATORY DAMAGES You may be entitled to be paid by the agency for your consequential damages, including medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages. To be paid, you must meet the requireme nts set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202 and 1201.204. In addition, the Whistleblower Protection Enhancement Act of 2012 authorized the award of compensatory damages including interest, reasonable expert witness fees, and costs, 5 U.S.C. § 1214 (g)(2), which you may be entitled to receive. If you believe you are entitled to these damages, you must file a motion for consequential damages and/or compensatory damages WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion with the office that issued the initial decision on your appeal. 20 NOTICE TO THE PARTIE S A copy of the decision will be referred to the Special Counsel “to investigate and take appropriate action under [5 U.S.C.] section 1215,” based on the determination that “there is reason to believe that a current employee may have committed a prohibited personnel practice” under 5 U.S.C. § 2302 (b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221 (f)(3). Please note that while any Special Counsel investigation related to this decision is pending, “no disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation or for any related activity without the approval of the Special Counsel.” 5 U.S.C. § 1214 (f). NOTICE OF APPEAL RIG HTS5 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time li mit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Boar d does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen for um. 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 canno t advise which option is most appropriate in any matter. 21 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact th at forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 22 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, cost s, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 23 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review t o the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursua nt to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a pro hibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Cir cuit or any court of appeals of competent jurisdiction.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 R eview Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other c ircuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 24 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washingt on, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a gi ven case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Loca tor/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805 . Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missing documentation may substantially delay the processing of a back pay award. More information may be 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 Tick et. 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) Settle ment 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 s o 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 docum entation. 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 unemp loyment 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 reverse d, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leav e ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Seve rance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if a pplicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Resto ration 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.	KREIPKE_CHRISTIAN_CH_1221_15_0284_W_1_FINAL_ORDER_2031979.pdf	2023-05-16	null	CH-1221	NP
3,138	https://www.mspb.gov/decisions/nonprecedential/KOKE_ERIC_J_PH_0752_17_0202_I_1_FINAL_ORDER_2032028.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ERIC J. KOKE, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER PH-0752 -17-0202 -I-1 DATE: May 16, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Eric J. Koke , Bath , Pennsylvania, pro se. David S. Friedman , Esquire, New York, New York, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal of his July 2002 removal for lack of jurisdiction .2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 The appellant initially filed an appeal of his removal in August 2002 , but the Board dismissed the appeal for lack of jurisdiction after the appellant voluntarily withdrew it . Koke v. U.S. Postal Service , MSPB Docket No. PH -0752 -02-0331 -I-1, Initial Decision (Oct. 2, 2002). 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 Regula tions, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 On review, the appellant focuses extensively on the underlying merits of his removal and alleged defects in his 2003 arb itration hearing and decision , asserts that he presented new and material evidence to justify reopening his 2002 removal appeal , and claims that the administrative judge “just [d]id a [c]over up[.]” P etition for Review File, Tab 1. We agree with the anal ysis in the initial decision that the appellant failed to make a nonfrivolous allegation of Board jurisdiction. We also find that the appellant has failed to provide sufficient evidence to demonstrate the “unusual or extraordinary circumstances” that woul d warrant the Board to reopen and reconsider his 2002 removal appeal. 5 C.F.R. § 1201.118 . W e further find that the appellant’s claim of a cover up by the administrative judge do es not overcome the presumption of honesty and integrity that accompanies administrative adjudicators. See Oliver v. Department of Transportation , 1 M.S.P.R. 382 , 386 (1980); see also Bieber v. Department of the Army , 287 F.3d 1358 , 162 -63 (Fed. Cir. 2002) (holding that an administrative judg e’s conduct during the course of a Board proceeding warrants a new 3 adjudication only if the administrative judge’s comments or actions evidence “a deep -seated favoritism or antagonism that would make fair judgment impossible”) (quoting Liteky v. United States, 510 U.S. 540 , 555 (1994)) . NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failur e to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have ques tions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be 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 partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representati ve receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 5 race, color, religion, sex, nati onal origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information f or U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your rep resentative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EE OC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 Fede ral Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are intere sted in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appel lants before the Federal Circuit. The 4 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	KOKE_ERIC_J_PH_0752_17_0202_I_1_FINAL_ORDER_2032028.pdf	2023-05-16	null	PH-0752	NP
3,139	https://www.mspb.gov/decisions/nonprecedential/CHRISTIAN_KELVIN_AT_0714_18_0450_I_2_FINAL_ORDER_2032060.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KELVIN CHRISTIAN, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0714 -18-0450 -I-2 DATE: May 16, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Daniel Maharaj , Esquire, Natalie Khawam , Esquire, and Trevor Tezel , Esquire, Tampa, Florida, for the appellant . Andrew James Patch , Esquire, Tampa, Florida, for the agency. Kristin Langwell , Esquire, St Petersburg, Florida, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has petitioned for review of the initial decision in this appeal. Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the appeal as settled. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 ¶2 After the filing of the petition for revi ew, the parties signed and submitted a document entitled “SETTLEMENT AGREEMENT ,” dated March 29, 2023 . PFR File, Tab 5. The document provides, among other things, for the withdrawal of the above -captioned appeal. Id. at 4. ¶3 Before dismissing a matter a s 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. Posta l Service , 37 M.S.P.R. 146, 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it. See Delorme v. Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017) . ¶4 Here, we find that the parties have entered into a settlement agreement, understand its terms, a nd intend for the agreement to be entered into the record for enforcement by the Board. PFR File , Tab 5 at 4 -8. Accordingly, we find that dismissing the appeal with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropri ate under these circumstances. In addition, we find that the agreement is lawful on its face and freely entered into, and we accept the settlement agreement into the record for enforcement purposes. ¶5 This is the final decision of the Merit Systems Protec tion Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS If the agency or the a ppellant 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 s hould contain specific reasons why the petitioning party believes that the terms of the settlement agreement have not 3 been fully carried out, and should include the dates and results of any communications between the parties. 5 C.F.R. § 1201.182 (a). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claim s determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failu re to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have que stions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must f ile a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the not ice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washin gton, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probon o for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a g iven case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in p art, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal C ircuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no la ter than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 5 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) a nd 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you re ceive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial revi ew either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeal s for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circu it, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The original statutory provision that provided for judicial review of certain whistleblower claims by a ny court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor w arrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CHRISTIAN_KELVIN_AT_0714_18_0450_I_2_FINAL_ORDER_2032060.pdf	2023-05-16	null	AT-0714	NP
3,140	https://www.mspb.gov/decisions/nonprecedential/STEPHENS_RANDY_DC_1221_20_0855_X_1_FINAL_ORDER_2032141.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD RANDY STEPHENS, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DC-1221 -20-0855 -X-1 DATE: May 16, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shaun Yancey , Esquire, Atlanta, Georgia, for the appellant. Anette H. Veldhuyzen , Esquire and Elwood Lee Waters, III , Fort Lee, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required t o follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 On August 25, 2021, the administrative judge issued a compliance initial decision finding the agency in noncompliance with a settlement agreement filed with the Board for enforcement purposes at the request of the parties, grant ed the appellant’s petition for enforcement, and order ed the agency to “pay the appellant twenty five thousand dollars ($25,000.00) in compensatory damages, and twenty two thousand dollars ($22,000.00) for attorneys’ fees” within 30 days. Stephens v. Department of the Army , MSPB Docket No. DC -1221 -20-0855 -C-1, Compliance File (CF) , Tab 4, Compliance Initial Decision (CID) at 3–4; Stephens v. Department of the Army , MSPB Docket No. DC -1221 -20-0855 -W-1, Initial Appeal File (IAF), Tab 28, Initial Decision (ID) . For the reasons discussed below, we find the agency in complian ce and DISMISS the petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 On September 10, 2020, the appellant filed an individual right of action appeal alleging whistleblower retaliation. CID at 2. On or about November 1 6, 2020, the appellant and the agency executed a Settlement Agreement (Agreement) resolving the IRA appeal . Id. Pursuant to the Agreement, the agency promised, in pertinent part, to pay the appellant $25,000 in compensatory damages and $22,000 in attorney’s fees as a lump sum payment by check payable to the appellant’s counsel’s law firm, Melville Johnson, P.C . Id.; IAF, Tab 26, at 7 -8. The agency further agreed to initiate paperwork to the Defense Finance Accounting Service (DFAS) for payment of the sum within sixty days of the termination of the seven -day revocation period provided in the agreement, which meant the request to DFAS was due on or about January 22, 2021 . CID at 2; IAF, Tab 26, at 7-8. ¶3 At the parties’ request, the administrative judge issued an initial decision dated November 30, 2020, dismissing the appeal as settled and accepting the 3 Agreement into the record for enforcement purposes pursuant to 5 C.F.R. § 1201.182 . ID at 1 -2. The November 30, 2020 initial decision became the final decision of the Board on January 4, 2021, as neither party petitioned the full Board for review. ID at 2. ¶4 On July 22, 2021, the appel lant filed a petition for enforcement of the Settlement Agreement. CF, Tab 1. The appellant alleged that in fact, the agency did not submit the paperwork to DFAS required to process the appellant’s payment within the agreed -upon timeframe. CF, Tab 1 at 6–8; see CID at 2. The administrative judge issued an Acknowledgement Order and a Second Order to Respond directing the agency to respond to the allegations in the appellant’s petition for enforcement. See CID at 2 -3. The agency failed to respond to ei ther order. Id. ¶5 On August 25, 2021, the administrative judge determined the agency was not in compliance with the Agreement. CID at 3 -4. The administrative judge found specifically that “[t]he undisputed facts show that the agency failed to provide th e proper documentation to DFAS to effectuate the appellant’s payment, and failed to pay the appellant in a timely manner.” CID at 3. The administrative judge further found that the agency’s breach of the Agreement was material due to the amount of the ou tstanding payment.3 CID at 4. Finally, the administrative judge ruled that the appellant filed the petition for enforcement within a reasonable time after the appellant became aware of the breach. CID at 3 -4. ¶6 Neither party filed a petition for review of the compliance initial decision. Thus, the appellant’s petition for enforcement has been referred to the Board for a final decision on issues of compliance pursuant to 5 C.F.R. § 1201.183 (b)-(c). 3 The initial decision did not address whether the app ellant wished to enforce the agreement or rescind it. See Kitt v. Department of the Navy , 116 M.S.P.R. 680 , ¶ 12 (2011). The appell ant stated that he wished to enforce it, however. CF, Tab 1 at 9. 4 Stephens v. Department of the Army , MSPB Docket No. DC -1221 -20-0855 -X-1, Compliance Referral File (CRF), Tab 1. ¶7 On September 8, 2021, the agency filed a Motion to Submit Evidence of Payment, in whi ch it appear s to assert that DFAS issued a check in the amount of $47,000 to the appellant on or about August 25, 2021. See CRF, Tab 1 at 6 -7. On September 9, 2021, the Clerk of the Board issued an Acknowledgement Order to the appellant notifying him of his right to respond to the agency’s submission and advising him that if he did not respond to the submission within 20 days of service, then the Board may assume that he is satisfied and dismiss the petition for enforcement. CRF, Tab 2 at 2. The appella nt has not respond ed to the Acknowledgement Order or the agency’s Motion to Submit Evidence of Payment. ¶8 On September 24, 2021, the agency filed a Motion to Dismiss for Substantial Compliance in which it assert s, inter alia, that “[o]n September 2, 2021, DFAS payment was posted,” and “[o]n September 10, 2021, payment of $47,000 to Melville Johnson cleared.” CRF, Tab 4 at 3. To support its assertions, the agency has attached email correspondence and printouts from DFAS’s computer system showing that DFAS issued a check in the amount of $47,000 to Melville Johnson, P.C., and that on September 10, 2021, the check cleared. CRF, Tab 4 at 18 -20. The appellant has not responded to the agency’s Motion to Dismiss for Substantial Compliance.4 ¶9 “The Board will en force a settlement agreement that has been entered into the record in the same manner as a final Board decision or order.” Burke v. 4 On October 12, 2021, the appellant filed a motion for attorney fees in the compliance case. CF, Tab 6. The motion did not address the agency’s evidence of compliance. In any event, the motion is premature, as it was filed before this final decision iss ued. See 5 C.F.R. § 1201.203 (d) (“A motion for attorney fees must be filed as soon as possible after a final decision of the Board but no later than 60 days after the date on which a decision becomes final.”); Belmont v. U .S. Postal Service , 109 M.S.P.R. 505 , ¶ 8 (2008) (denying motion for attorney fees filed before issuance of final decisi on as premature). If the appellant wishes his attorney fee petition to be considered, he must file it as a separate case, pursuant to 5 C.F.R. § 1201.203(b). 5 Department of Veterans Affairs , 121 M.S.P.R. 299 , ¶ 8 (2014). When the appellant alleges the agency has breached a settlement agreement, the agency must respond by producing relevant, material evidence of its compliance or showing good cause for noncompli ance. Id. However, the appellant ultimately bears the burden of proving the agency’s breach by a preponderance of the evidence.5 Id. ¶10 In its September 24, 2021 statement of compliance, the agency asserts that it caused DFAS to tender payment of $47,000 by check payable to Melville Johnson, P.C., as required under the Agreement, and has attached supporting documentation from DFAS’s computer sys tem showing that a $47,000 check to Melville Johnson, P.C., cleared on September 10, 2021. CRF, Tab 4 at 3. The Board determines that the agency’s submission shows that it is now in compliance with the requirement that it pay the appellant $47,000 in tot al for compensatory damages and attorney’s fees. Since the appellant has not responded to the agency’s assertions and evidence of compliance, the Board assumes he is satisfied. See Baumgartner v. Department of Housing and Urban Development , 111 M.S.P.R. 86 , ¶ 9 (2009). ¶11 Based upon the foregoing, the Board finds the agency in compliance and dismisses the petition for enforcemen t. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.1 83(c)(1)). 5 A preponderance of the evidence is “[t]he degree of relevant evidenc e that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4 (q). 6 NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of the Unite d 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 requirement s, you must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIG HTS6 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims an d carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the 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 f orum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit , you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in sec uring pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants befor e the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option app lies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain 8 judicial review of this decision —including a di sposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your represent ative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, n ational origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http:/ /www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). I f you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review t o the EEOC by regular U.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 me thod requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancemen t Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice describe d in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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: 7 The origina l statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanent ly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Re view Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional inform ation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information fo r the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR TH E BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	STEPHENS_RANDY_DC_1221_20_0855_X_1_FINAL_ORDER_2032141.pdf	2023-05-16	null	DC-1221	NP
3,141	https://www.mspb.gov/decisions/nonprecedential/CLEVELAND_THADDEUS_DA_1221_16_0510_W_1_FINAL_ORDER_2032163.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD THADDEUS CLEVELAND, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER DA-1221 -16-0510 -W-1 DATE: May 16, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Thaddeus Cleveland , Sanderson, Texas, pro se. Kathryn A. Price , Esquire, Marfa, Texas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied 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 ma terial 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 require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 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 de cision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclud e that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The appellant is the Patrol Agent in Charge at the agency’s Sanderson Border Patrol Station in Sanderson, Texas. Initial Appeal File ( IAF), Tab 6 at 4. In Au gust 2016, he filed an IRA appeal with the Board alleging that the agency retaliated against him for whistleblowing activity when it failed to pay him a performance award for Fiscal Year 2015. IAF, Tab 1 at 5 . The appellant did not request a hearing, and the administrative judge issued an initial deci sion on the written record finding that the appellant established jurisdiction and made a prima facie case of whistleblower retaliation. Id. at 2; IAF, Tab 26, Initial Decision (ID) at 2-5, 17-18; see 5 U.S.C. § 1221 (e)(1); Yunus v. Department of Veterans Affairs , 242, F.3d 1367 , 1371 (Fed. Cir. 2001) . However, the administrative judge denied corrective action because she further found that the agency met its burden of proving by clear and convincing evidence that it would have taken the same action in the absence of the appellant’s whistleb lower activity. ID at 18 -29; see Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999) . ¶3 The appellant has filed a petit ion for review primarily arguing that the agency did not cooperate during the discovery process and did not provide the information described in his Freedom of Information Act request. Petition for 3 Review File, Tab 1 at 3. The appellant asserts that , had the agency fully cooperated with the information -gathering process during discovery , he would have been able to show that the agency treated similarly situated employees who were not whistleblowers differently than it treated the appellant. Id.; see Carr , 185 F.3d at 1323 (finding that one factor in considering whether the agency proved that it would have taken the same action even absen t the appellant’s whistleblowing activity is whether the agency takes similar actions against employees who are not whis tleblowers but who are otherwise similarly situated). ¶4 Here, the administrative judge informed the parties of their discovery obligations, including the requirement that they attempt to resolve a discovery dispute privately before filing a motion to compel with the administrative judge . IAF, Tab 2 at 3 ; 5 C.F.R. §§ 1201.71 , 1201.73 . Throughout the appeal process below, t he administrative judge again informed the appellant that the Board generally does not participate in the discovery process until there is a failure or refusal to fully reply to the discovery request and a motion to compel discovery is filed. IAF, Tab 18 at 1; 5 C.F.R. § 1201.73 (c)(2). Further, the agency filed its own motion to compel concerning the appellant’s alleged unsatisfactory responses to its discovery requests. IAF, Tab 21. Thus, we find that the appellant was aware of the obligation to raise a discovery dispute and, if necessary, to file a motion to compel with the administrative judge. ¶5 Nonetheless, the record shows that the appellant did not file a motion to compel with the administrative judge, and t he Board has held that an appellant’s failure to do so precludes him from raising a discovery dispute for the first time on review. Szejner v. Office of Personnel Management , 99 M.S.P.R. 275 , ¶ 5 (2005) , aff’d , 167 F. App’x 217 (Fed. Cir. 2006) . Therefore, we find the appellant’s argument to be without merit. ¶6 Accordingly, we deny the appellant’s petition for review and affirm the initial decision. 4 NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possibl e choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issu ance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for 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 w hich option is most appropriate in any matter. 5 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 6 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial revi ew pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 7 disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of is suance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court a t the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscour ts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endo rses 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 cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CLEVELAND_THADDEUS_DA_1221_16_0510_W_1_FINAL_ORDER_2032163.pdf	2023-05-16	null	DA-1221	NP
3,142	https://www.mspb.gov/decisions/nonprecedential/GRANDE_ERIC_P_DE_0752_21_0026_I_1_FINAL_ORDER_2032169.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ERIC P. GRANDE, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DE-0752 -21-0026 -I-1 DATE: May 16, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Janice L. Jackson , Leavenworth, Kansas, for the appellant. Kristine H. Bell , Esquire, Fort Leavenworth, Kansas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his involuntary reduction -in-pay appeal for lack of jurisdiction. For the reasons set forth below, we DISMISS the appeal as settled . ¶2 While the petition for review was pending, the parties submitted a copy of a settlement agreement , signed and dated by the app ellant on March 7, 2023, and by 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 the agency on March 9, 2023. Petition for Review File, Tab 4 at 4 -6. The agreement provides for the withdrawal of the appeal in exchange for certain promises made by the agency, and the parties have further agreed for the agreement to be entered into the record for enforcement purposes. Id. ¶3 Before dismissing a matter as s ettled, 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 S ervice , 37 M.S.P.R. 146 , 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it. See Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 10 -11 (2017). ¶4 Here, we find that the parties have entered into the settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforcement by the Board. We furt her find that the agreement is lawful on its face and that the parties freely entered into it. Accordingly, we find it appropriate to dismiss the appeal with prejudice to refiling (i.e., the parties normally may not refile this appeal), and we enter the a greement into the record for enforcement purposes. ¶5 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulation s, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS If the agency or the appellant has not fully carried out the terms of the agreement, either party may ask the Board to enforce the settlement agreement by promptly filing a pe tition for enforcement with the office that issued the initial decision on this appeal. The petition should contain specific reasons why the petitioning party believes that the terms of the settlement agreement have not 3 been fully carried out, and should i nclude the dates and results of any communications between the parties. 5 C.F.R. § 1201.182 (a). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to yo ur particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise w hich option is most appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circ uit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Peti tioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attor ney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that su ch action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you mu st file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 5 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their resp ective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employm ent Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operation s within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Em ployment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whi stleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C ), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to t he court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.c afc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board ne ither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the lin k below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	GRANDE_ERIC_P_DE_0752_21_0026_I_1_FINAL_ORDER_2032169.pdf	2023-05-16	null	DE-0752	NP
3,143	https://www.mspb.gov/decisions/nonprecedential/HUNT_PHAYLYN_M_DC_0752_16_0180_I_1_FINAL_ORDER_2031429.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD PHAYLYN M. HUNT, Appellant, v. DEPARTMENT OF JUSTIC E, Agency. DOCKET NUMBER DC-0752 -16-0180 -I-1 DATE: May 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shronda Hunt , District Heights, Maryland, for the appellant. Jay Macklin , Kimya Jones , Esquire, and Sobia Haque , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained her removal . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c). 2 or regulation or the erroneous application of the law to the facts of the case; the administrative judge ’s rulings during either the course of the appeal or the initial decision were not c onsistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner ’s due diligence, was not available whe n the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board ’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The agenc y removed the appellant from her GS-11 Paralegal position in the agency’s Cyber Unit based on 39 specifications of the charge of Failure to Follow Instructions . Initial Appeal File (IAF), Tab 5 at 36, 38 -44, 46 -54. Specifications 1-9 addressed the appellant’s failure to follow multiple instructions by her first-level supervisor, the Criminal Divisio n Operations Manager (CDOM), to meet with an Assistant U.S. Attorney (AUSA) and a paralegal in a case identified as SB. Id. at 49, 103, 109 -11, 125 -26. Specifications 10 -17 addressed the appellant’s failure to follow the CDOM’s multiple instructions to b egin and complete entering call information into a spreadsheet involving the SB case. Id. at 49, 109 -11, 113, 126. Specifications 18 -26 addressed the appellant’s failure to follow the CDOM’s instructions to meet with the AUSA and paralegal to discuss three cases identified as D, HC, and E. Id. at 49 -50, 107, 109 -11, 113, 125 -26. Specification 27 addressed the appellant’s failure to follow one of the AUSA’s instructions to scan documents and discs into a shared drive for case D. Id. at 50. Specificatio ns 28 -32 addressed the appellant’s failure to follow the CDOM’s instructions to scan documents into a shared drive for case D. Id. at 50, 113, 3 120-22, 125 -26. The last set of specifications, specifications 33 -39, addressed the appellant’s multiple failur es to follow the CDOM’s instructions to notify the two AUSAs for whom she worked when she would be absent, arriving late, or leaving early. Id. at 50 -51, 132 -33, 135, 137, 139, 141, 143, 147. In selecting the penalty of removal, the agency relied on the appellant’s prior discipline, which included five suspensions for failure to follow instructions. Id. at 52. ¶3 The appellant app ealed the agency ’s action to the Board . IAF, Tab 1. Regarding specifications 1 -32, she alleged that the instructions concerning cases SB, D, HC, and E contradicted earlier instruc tions from the CDOM. IAF, Tab 4 at 9-11 (response to proposed r emoval) . As to specifications 33 -39, she asserted that she notified the CDOM o f her duty status , believing that such notification was sufficient . Id. at 11 -12. She further asserted that the agency created a hostile work environment, and that her removal was the result of discrimination (race, color, and sex ), retaliation for her prior equal employment opportunity (EEO) complaints, whistleblower retaliation, and harmful procedural error. IAF, Tabs 11, 14. ¶4 Following a hearing , the administrative judge issued a lengthy and detailed initial decision. IAF, Tab 3, Initial Decision (ID). She first found that the agency proved specifi cations 1, 3 -4, 6-12, 14 -21, 23 -27, and 29 -39, and thus proved the charge. ID at 6 -18. She also found that the appellant failed to prove her affirmative defenses. ID at 18 -40. Finally, she found that the agency showed nexus between the sustained miscon duct and the efficiency of the service and that the r emoval penalty was r easonable . ID at 40 -44. ¶5 On petition for review, the appellant generally disagrees with the administrative judge . She assert s that the agency did n ot prove the charged misconduct. Petition for Review (PFR) File, Tab 1 at 9-10. She also asserts that the administrative judge ’s credibility findings were in error, and that she erred in finding that the appellant failed to prove her affirmative defe nses. Id. at 4-5, 12-16. Further, sh e contends that the agency failed to prove nexus and the 4 reasonableness of the penalty. Id. at 16 -17. The agency has responded in opposition to the petition. PFR File, Tab 3. DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge properly found that the agency proved that the appellant failed to follow instructions. ¶6 In her petition for review, the appellant reiterates her argument from below that the instructions concerning cases SB, D, HC, and E contradicted earlier instructions. She asserts that h er supervisor told her that she would only be assigned to new cases, and that being assigned to help work on old cases contradicted the earlier instructions. We agree with the administrative judge that the appellant’s explanation for her failure to follow instructions is unpersuasive. The fact that initially the appellant was only going to be assigned new cases, but was subsequently reassigned some old cases is not contradictory or confusing , but is merely a reallocation of work within the agency’ s manage rial discretion. We also discern no error in the administrative judge’s finding that the appellant was given a proper instruction to notify the two AUSAs when she would be absent, arriving late, or leaving early, and that she f ailed to comply with those instructions. ¶7 Furthermore, even if the instructions had been improper, the Board has held that, as a general rule, an e mployee must obey agency orders , even if the employee may have substantial reason to question them, while taking steps to challenge their validity through whatever channels are appropriate. Pedel eose v. Department of Defense , 110 M.S.P.R. 508, ¶ 16, aff’d , 343 F. App’x 605 (Fed. Cir. 2009) . The rule has long been recognized as necessary to an agency’s ability to effectively manage the workplace, and reflects the fundamental management right to expect that its decisions will be obeyed and its instructions carried out. Id. The recognized exceptions to the rule apply only in extreme or unus ual circumstances, such as when the order could place the employee in a dangerous 5 situation or cause irreparable harm, and the appellant has not shown that such circumstances were present in this case. See id ., ¶ 17.2 ¶8 The appellant also asserts that there was only a singular incident of failure to follow instructions, not 39 as specified by the agency. PFR File, Tab 1 at 5. It appears that the appellant is arguing that the Board should merge the specifications. The Board will merge charges if they are based on the same conduct and proof of one charge automatically constit utes proof of the other charge. Shiflett v. Department of Justice , 98 M.S.P.R. 289 , ¶ 5 (2005). However, assuming without deciding that the Board would consider merging specifications, as opposed to charges, we would not do so in this case, because each specification at issue requires proof of a fact, such as different date, time, and /or individual involved, that the others d o not. Cf. Blockburger v. United States , 284 U.S. 299 , 304 (1932) (finding in the criminal context that “the test to be applied to determine whe ther there are two offenses or only one is whether each provision requires proof of an additional fact which the o ther does not ”). Thus, the administrative judge properly considered each specification.3 The appellant has not shown that the administrative judge erred in her credibility determinations. ¶9 The appellant asserts that the administrative judge did not consider the testimony of two wit nesses who stated that they informed the deciding official that the appella nt complained of a hostile working enviro nment of bullying by her 2 As set forth below, the appellant raised an affirmative defense of whistleblower reprisal. The Follow the Rules Act, which states that an agency shall not take a personnel action against an employ ee for “refusing to obey an order that would require the individual to violate a law, rule, or regulation,” 5 U.S.C. § 2302 (b)(9)(D), was not passed until 2017, after the removal in this case. In a ny event, even if the Act were retroactive, it would not be applicable to the circumstances of this case. 3 As noted, the administrative judge found that the agency proved 34 of the 39 specifications of failure to follow instructions. W hen, as here, there is one charge with multiple factual specificat ions set out in support of the charge, proof of one or more of the supporting specifications is sufficien t to sustain the charge. Miller v. U.S. Postal Service , 117 M.S.P.R. 557 , ¶ 16 (2012). 6 supervisor . The appellant argues that the deciding official ’s denial that he knew that the appellant complained about a hostile environment show s that his testimony was not credible, and that the administrative judge erred in rely ing on his testimony to find that he learned through the appellant’s written response to the proposed removal action of her EEO complaints and allega tions of a hostile work environment . ¶10 The witnesses in question, neither of whom was mentioned in the init ial decision, gave testimony concerning meeting s that included the deciding official . One witness described a meeting in which the discussion centered on whether the appellant’s supervisor purposely bumped into the appellant’s chair and whether this constituted harassment. See Hearing Transcript, April 15, 2016, at 52 4 (testimony of the Supervisory Human Resources Specialist) . According to that witness, the deciding official seemed surpris ed to hear of the appellant’s allegation of harassment. Id. at 527. The other witness described a later meeting, in which the discussion centered on whether the appellant’s reassignment by her former supervisor constituted harassment. Id. at 775 -77 (testimony of the Director of Training and Professional Development) . According t o this witness, the deciding official explained that the appellant’s reassignment was planned for some time, and that thus it did not appear to be retaliatory. Id. ¶11 The testimo ny of the two witnesses show s that the deciding official was told about two specific instances that the appellant viewed as harassing. It does not , however, show that the deciding official was aware that the appellant was alleging an overarching hostile working environment. Thus, their testimony provides no basis to overturn the administrative judge ’s credibility determination , particularly given that she implicitly relied on her observation of witness demeanor . See Purifoy v. Department of Vet erans Affairs , 838 F.3d 1367 , 1373 (Fed. Cir. 2016) (holding th at the Board must afford “special deference” to an administrative judge’s demeano r-based credibility determinations, “[e]ven if demeanor is not specifically discussed”). 7 The administrative judge properly found that the appellant failed to prove discrimination or retaliation for filing EEO complaints . ¶12 The appellant generally disagrees with the administrative judge’ s finding s that she failed to prove that the agency discriminated against her based on race, color, and sex , and retaliated against her for filing EEO complaints . In adjudicating these claim s, the adm inistrative judge considered the appellant’s contention that her prior suspensions evidenced a discriminatory or retaliatory motive . ID at 23 -29.4 The administrative judge also considered the appellant’ s assertions concerning other alleged act s of harassment , including reassignments; removal from the building; a supervisor bum ping into the appellant’s chair; lack of assistance from various offices within the agency , including the police department’s refusal to file a report on the appellant’s allegation that her supervisor assaulted her when the supervisor bu mped into the appellant’s chair; and limiting the appellant’s use of official time for the processing of her EEO complaint, all of which she claimed evidenced retaliation by the agency. ID at 30-35. ¶13 We agree with th e administrative judge that , even considering the prior suspensions, the appellant failed to prove her discrimination and retaliation claims . We decline to reweigh this evidence on review. See Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987) (observing that mere reargument of factual issues already raised and properly resolved by the administrati ve judge below do es not establish a basis for review).5 4 In assessing whether the appellant’s prior suspensions evidenced a discriminatory or retaliatory moti ve, the administrative judge appears to have focused on the tangential question of whether there was a nexus between the suspensions and the removal. ID at 26-29. We find, however, that the administrative judge’s apparent error on this point does not war rant a different outcome. Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (holding that an adjudicatory error tha t is not prejudicial to a party’ s substantive rights provides no basis for reversal of an initial decision). 5 Because we affirm the administrative judge’s finding that the appellant failed to show that any prohibited consideration was a motivating factor in th e agency’ s action, we need not resolve the issue of whether the appellant proved that discr imination or 8 The administrative judge correctly found that the appellant did not establish her affirmative defense of whistleblowing reprisal.6 ¶14 On review, the appellant again contends that her alleged protected disclosures to two former Attorneys General were a contributing factor in her removal. PFR File, Tab 1 at 16. As the administrative judge correctly found below, the disclosures in question were not protected under 5 U.S.C. § 2302 (b)(8), because they concerned allegations of discrimination and retaliation for EEO activity. See Young v. Merit Systems Protection Board , 961 F.3d 1323 , 1329 (Fed. Cir. 2020) (outlining that claims of ret aliation for exercising a Title VII right do not fall within the scope of section 2302(b)(8)); Redsch lag v. Department of the Army , 89 M.S.P.R. 589, ¶ 84 (2001). Hence, the affirmative defense fails . We note that, having found that the disclosures were not protected, the administrative ju dge should not have proceeded to consider whether the agency showed by clear and convincing evidence that it would have taken the same action in the absence of those disclosures. Scoggins v. Department of the Army , 123 M.S.P.R. 592 , ¶ 28 (2016). However, the administrative judge’s error on this point has no effect on the outcome of this case. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (holding that an adjudicatory error that is not prejudicial to a party’ s substantive rights provides no basis for reversal of an initial decision). The appellant failed to establish harmful procedural error. ¶15 In her pe tition, the appellant again asserts that the agency committed harmful procedural error by not givi ng her additional training, guidance, and an opportunity to improve pursuant to 5 U.S.C. chapter 43 . However, as the administrative judge found, the agency action in this case was not taken pursuant retaliation was a “but -for” cause of the agency’ s decisions. See Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 20-22, 29 -33. 6 We have reviewed the relevant legislation enacted during the pendency of this appeal and have determined that none impact the outcome. 9 to chapter 43 as a performance -based action, but rather , was taken pursuant to 5 U.S.C. chapter 75 as a removal for misconduct . The agency was not therefore obligated to follow the procedures of chapter 43 . In accordance with chapter 75, the agency afforded the appellant 30 days , advance written notice of the charged misconduct , a reasonable time to answer the notice orally and in writing and to furnish affidavits and other documentary evidence in support of the answer, and a written decision and the specific reasons for the decision. See 5 U.S.C . § 7513 (b); 5 C.F.R. § 752.404 ; IAF, Tab 5 at 38 -44, 46 -54. ¶16 The appellant asserts for the first time on review that the agency ’s refusal to engage in alternative dispute resolution (ADR) procedures was harmful procedural error. The Board will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party ’s due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). The appellant has failed to show such. In any event, w e find no merit to this argument, as the appellant has not even alleged that the agency is require d to provide ADR to its employees under the circumstances of this case , and she has not identified any agency regulation tha t would have required it to do so. The agency established nexus between the appellant ’s misconduct and the efficiency of the service, and that the removal penalty was within the bounds of reasonableness. ¶17 The nexus requirement, for purposes of whether an agency has shown that its action promotes the efficiency of the service, means 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 satisfactor ily or some other legitimate Government interest. Merritt v. Department of Justice , 6 M.S.P.R. 585 , 596 (1981), modifie d on other grounds by Kruge r v. Department of Justice , 32 M.S.P.R. 71, 75 n.2 (1987). An agency meets it s burden to show nexus in a removal action based on the charge of failure to follow instructions 10 because such misconduct relates directly to the efficiency of the appellant ’s service. See Archerda v. Department of Defense , 121 M.S.P.R. 314, ¶ 24 (2014). Thus, we find that the administrative judge properl y found that the agency proved nexus. ¶18 Further, the removal penalty is reasonable under the circumstances of this case. When all of the agency ’s charges are sustained, but some of the underlying specifications are not sustained, the agency ’s penalty determination is entitled to deference and should be reviewed only to determine whether it is within t he parameters of reasonableness. Payne v. U.S. Postal Service , 72 M.S.P.R. 646 , 650 (1996) . The Board will disturb the 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 . Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 306 (1981) . ¶19 Among the factors that an agency may weigh is an appellant ’s past disciplinary record . Id. at 306. The Board ’s review of a prior disciplinary action in determining if it may be considered in a Douglas penalty analysis is limited to determining whether that action is clearly erroneous, if the employee was informed of th e action in writing, the action is a matter of record, and the employee was permitted to dispute the charges before a higher level of authority than the one that imposed the discipline. Bolling v. Department of the Air Force , 9 M.S.P.R. 335 , 339 -40 (1981). Here, the a gency has shown that it informed the appella nt in writing of each of her five prior suspensions, that each was a matter of record, and that the appellant was permitted to dispute the charges in each before a higher authority. IAF, Tab 5 at 55-101. The appellant presented no evidence that any of the prior suspensions was clearly erroneous. Thus, the agency properly relied on the appellant ’s prior suspension s in determining a reasonable penalty. ¶20 The appellant also contends that the agency did not take into account her 33 years of service and her many at least acceptable performance appraisals . 11 Contrary to the appellant ’s assertion, the deciding official stated at the outset of his penalty analysis that he considered as mitigating factors t he fact that the appellant had been an employee of the agency for 30 years and had over 32 years in the Federal service. IAF, Tab 5 at 41. He further stated that he also considered the “Successful ” and “Outstanding ” performance eval uations that the appellant received since 2008. Id. He noted that these factors weigh ed in favor of mitigation. Id. However, he considered these mitigating factors outweighed by other factors , including the nature and seriousness of the offense, the fact that the appellant had been repeatedly disciplined for failure to follow instructions, the lack of potential for re habilitation as shown by her repeated discipline for similar offenses, and his belief that a lesser penalty would not deter future misconduct of this nature given the appellant ’s prior suspensions. Id. at 41 -42. We find that the agency has weigh ed the relevant factors and that the agency ’s judgment as to the penalty does not exceed the limits of reasonableness. See Toth v. U.S. Postal Service , 76 M.S.P.R. 36, 39 (1997) ; Redfearn v. Department of Labor , 58 M.S.P.R. 307 , 316 (1993) ( finding that a n employee ’s deliberate refusal to follow supervisory instructions constitutes serious mis conduct that cannot be condoned ); see also Davis v. Smithsonian Institution , 14 M.S.P.R. 397 , 400 (1983) ( finding that the offence of failure to obey an order “goes to the heart of the supervisor -employee relationship ”). NOTICE OF APPEAL RIG HTS7 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit 7 Since the issuance of the initial decision in this matter, the Board may have up dated the notice 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 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described b elow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies t o your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judic ial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 13 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any a ttorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives t his decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. distr ict courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you ma y request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with t he EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, 14 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office o f Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have rai sed claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8) , or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your 8 The original statutory provision that provided for judicial review of certain whistleblowe r claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 15 petition fo r review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1 510. 16 Contact information for the courts of appeals can be found at their respective websites, whic h can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HUNT_PHAYLYN_M_DC_0752_16_0180_I_1_FINAL_ORDER_2031429.pdf	2023-05-15	null	DC-0752	NP
3,144	https://www.mspb.gov/decisions/nonprecedential/SHAW_KENNETH_NY_0752_22_0018_I_1_FINAL_ORDER_2031475.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KENNETH SHAW, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER NY-0752 -22-0018 -I-1 DATE: May 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kenneth Shaw , Brooklyn, New York, pro se. Kaitlin Fitzgibbon , Esquire, Buffalo, New York, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition fo r review of the initial decision, which affirmed his removal from Federal service . On petition for review, the appellant argues, among other things, that the administrative judge was biased, did not conduct discovery, and improperly denied his witness req uest. 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 preced ential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Review (PFR) File, Tab 1 at 1 -3. He also appears to argue that he was discriminated against based on his religion and that he was retaliated against for engaging in whistleblowing activity. Id. at 1 -2. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous a pplication of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. The refore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The administrative judge correctly found tha t the agency proved its charges of absence without leave and failure to follow leave procedures by preponderant evidence. Initial Appeal File (IAF), Tab 19, Initial Decision (ID) at 7 -11. She also appropriately found that there is a nexus between the cha rged misconduct and the efficiency of the service. ID at 11 -12. Based on our review of the deciding official’s testimony, her decision notice, and the Douglas2 factors worksheet contained in the record, we find that the deciding official properly conside red the relevant Douglas factors, and we agree with the administrative judge that the penalty of removal was reasonable. ID at 16-19; IAF, Tab 5 at 19, 31-32; IAF, Tab 18, Hearing Recording (testimony of the Center Director/deciding official). We also ag ree with the administrative judge that the 2 Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981). 3 appellant failed to prove his affirmative defense s of reprisal for engaging in prior equal employment opportunity (EEO) activity3 and disparate treatment. ID at 12-16.4 The appellant failed to establish that the administrative judge acted improperly in the adjudication of this appeal. ¶3 As briefly set forth above, the appellant argues on review that the administrative judge was biased, failed to engage in discovery, and improperly denied his witness request. PFR File, Tab 1 at 1 -3. Regarding the appellant’s claim of bias, the Board has explained that, in making such a claim, the party must show that the bias constitutes extra judicial conduct, rather than conduct arising in the administrative proceedings before h er, to overcome the presumption of honesty and integrity that accompanies administrative adjudicators. Tyler v. U.S. Postal Service , 90 M.S.P.R. 545 (2022). Here, the appellant asserts that the administrative judge “was doing the [agency’s] bidding” and denied him due process. PFR File, Tab 1 at 1. He has not, however, provided any examples of 3 Regarding the appellant’s EEO reprisal claim , the administrative judge found that the appellant’s prior EEO activity was not a motivating factor in his removal. ID at 15. Because we affirm the administrative judge’s finding that the appellant failed to show that any prohibited consideration was a motivating factor in the ag ency’ s action, we need not resolve the issue of whether the appellant proved that discrimination or retaliation was a “but -for” cause of the agency’ s decisions. See Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 20 -22, 29 -33. 4 As briefl y noted above, the appellant appears to argue on review that his removal was also the result of discrimination based on his religion and was taken in reprisal for engaging in whistleblowing activity. PFR File, Tab 1 at 1 -2. The appellant did not raise ei ther of these claims below. IAF, Tabs 1, 6, 14. Generally, the Board will not consider an argument raised for the first time on review absent a showing that it is based on new and material evidence that was not previously available despite the party’s du e diligence. See Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016). To the extent the appellant is making these argumen ts on review, he has not explained why he was unable to raise them below, nor has he asserted that they are based on new and material evidence that was not previously available to him. Accordingly, we have not considered these claims. If the appellant be lieves that his removal was taken in reprisal for engaging in whistleblowing activity, he may consider filing a complaint with the Office of Special Counsel. 4 conduct on the part of the administrati ve judge that was inappropriate, much less extra judicial. Id. As such, the appellant’s claim of bias is unsupported and, thus, without merit. ¶4 Regarding the appellant’s claim that the administrative judge failed to conduct discovery, it is the primary responsibility of the parties to engage in discovery if so sought. See 5 C.F.R. § 1201.71 (explaining that the “[p]arties are expected to start and complete discovery with a minimum of Board intervention” and that “[d]iscovery requests and responses thereto are not to be filed in the first instance with the Board ”). We discern no error in the administrative judge’s handling of discovery. Notably, in an acknowledgment order, the administrative judge explained the discovery process to the parties and set forth how the parties should go about engaging in discovery. IAF, Tab 2 at 3. Additionally, she explained that she would address any problems dealing with discovery in a scheduled status conference. IAF, Tab 7 at 1 -2. There is no evidence in the record below that the appellant did not receive the administrative judge’s instructions regarding discovery , nor is there any evidence that the parties encountered a discovery dispu te that require d intervention from the Board. Accordingly, the appellant has failed to show that the administrative judge abused her discretion regarding the discovery process. ¶5 As noted, the appellant also asserts that the administrative judge improperly denied his “one and only witness” request. PFR File, Tab 1 at 3. In his prehearing submission, the appellant requested his cousin as a witness and explained that the cousin had helped him apply for a transfer to a different facility . IAF, Tab 14 at 9. In an order and summary of the prehearing conference, the administrative judge denied the witness request on relevance grounds. IAF, Tab 16 at 2. The appellant has not explained on review why this conclusion was in error, nor has he offered any specific information to which the witness would have testified that he believes to be relevant. PFR File, Tab 1. Therefore , we discern no error in the administrative judge’s denial of this 5 witness. See 5 C.F.R. § 1201.41 (b)(8) (setting forth the administrative judge’s authority and discretion to rule on witnesses). The documents submitted for the first time on review do not provide a basis to disturb the initial decision. ¶6 The appellant submits with his petition for review numerous documents, including, but not limited to, pleadings and submissions filed below, incomplete excerpts of transcripts, questionnaires, and court filings, a 2010 settlement agreement, and medical documentation discouragi ng the appellant from using public transportation. PFR File, Tab 1 at 6-135. Several of these documents are already included in the record below. To the extent any of the documents submitted on review are new, the Board will generally not consider evide nce submitted for the first time on review absent a showing that it was unavailable before the close of the record below despite the party’s due diligence. See Pirkkala v. Department of Justice , 123 M.S.P.R. 288 , ¶ 5 (2016). Based on our review of the documents, none postdate the close of the record below, and the appellant has not explained why he was unable to submit them then. PFR File, Tab 1. Moreover, the appellant has not shown that any of the documents submitted with his petition for review are 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 , 249 (1980). Accordingly, we have not considered them. ¶7 Based on the foregoing, we affirm the initial decision. NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). 5 Since the issuance of the initial decision in this matter, the Board may have updated the notic e 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 Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropri ate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law appli cable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choice s of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 7 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representati ve receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, nati onal origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information f or U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternat ively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such r equest with the 8 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representat ive receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 23 02(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 pet ition 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 9 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circu it, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is a vailable at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in s ecuring pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants bef ore the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistl eblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 Contact information for the courts of appeals can be found at their respective website s, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SHAW_KENNETH_NY_0752_22_0018_I_1_FINAL_ORDER_2031475.pdf	2023-05-15	null	NY-0752	NP
3,145	https://www.mspb.gov/decisions/nonprecedential/NORBERG_REGINALD_H_DE_831M_20_0209_X_1_FINAL_ORDER_2031670.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD REGINALD H. NORBERG, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DE-831M -20-0209 -X-1 DATE: May 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Reginald H. Norberg , Surprise, Arizona, pro se. Tiffany Slade , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 In a January 6, 2021 compliance initial decision, the administrative judge found that the Office of Personnel Management (OPM) was not in full compliance with Board’s October 16, 2020 final decision, which reversed OPM’s reconsideration decision and ordered OPM to waive t he $105,091 overpayment on the grounds that the appellant was without fault and collection would be unconscionable. Norberg v. Office of Personnel Management, MSPB Docket No. DE-831M -20-0209 -C-1, Compliance File, Tab 4, Compliance Initial Decision (CID); Norberg v. Office of Personnel Management, MSPB Docket No. DE - 831M -20-0209 -I-1, Initial Appeal File, Tab 32, Initial Decision.3 For the reasons discussed below, we now find the agency in compliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUMEN TS AND EVIDENCE ON C OMPLIANCE ¶2 In the compliance initial decision, the administrative judge found that the agency was not in full compliance with the Board’s final decision because it had failed to confirm compliance by informing the appellant of its compliance actions and of when it be lieved compliance was complete. CID at 2. Accordingly, the administrative judge ordered the agency to, on or before January 29, 2021, provide the appellant with written confirmation that the $105,091 overpayment had been waived. Id. ¶3 On January 29, 2021 , the agency filed with the Board a statement of compliance pursuant to 5 C.F.R. § 1201.183 (a)(6)(i). Norberg v. Office of Personnel Management , MSPB Docket No. DE -831M -20-0209 -X-1, Com pliance Referral File (CRF), Tab 1. Therein, the agency stated that “In accordance to [sic] the MSPB Board decision dated October 16, 2020, Docket DE -831M -20- 3 The October 16, 2020 initial decision became the final decision of the Board after neither party petitioned for administrative review. 3 0209 -I-1, the overpayment has been waived. No further collection action will be taken with respe ct to this overpayment and we have so noted in the records.” Id. at 4. ¶4 On February 1, 2021, t he Clerk of the Board issued an acknowledgment order notifying the appellant that he could respond to any submission from the agency concerning its compliance by filing written arguments with the Board within 20 calendar days of the date of service of the agency’s submission. CRF, Tab 2. The order also informed the appellant that , if he did not respond to the agency’s compliance submission within 20 days, the Bo ard might assume he was satisfied and dismiss his petition for enforcement. Id. ¶5 The appellant has filed no response to the agency’s submission, which on its face shows compliance, and the period for a timely response has closed. Accordingly, we assume he is satisfied. See Baumgartner v. Department of Housing and Urban Development , 111 M.S.P.R. 86 , ¶ 9 (2009). ¶6 In view of t he agency’s statement of compliance and the lack of a response from the appellant, we find the agency in compliance and dismiss the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights incl uded in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a gene ral rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decisi on. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevan ce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 5 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action tha t is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an app ropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the dist rict court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representat ion by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your rep resentative receives this decision before you do, then you must file 6 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EE OC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C . § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your pe tition for 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of co mpetent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 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 Cir cuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 Contact information for the courts of appeals can be found at their respective websit es, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	NORBERG_REGINALD_H_DE_831M_20_0209_X_1_FINAL_ORDER_2031670.pdf	2023-05-15	null	DE-831M	NP
3,146	https://www.mspb.gov/decisions/nonprecedential/JACKSON_SEAN_DC_0752_17_0381_I_1_FINAL_ORDER_2030852.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SEAN JACKSON, Appellant, v. DEPARTMENT OF HOUSIN G AND URBAN DEVELOPMENT, Agency. DOCKET NUMBER DC-0752 -17-0381 -I-1 DATE: May 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sean Jackson , Fairfax Station, Virginia, pro se. Robert C. Kusnir , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained his removal . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affe cted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant was removed from h is Real Estate Analyst position based on four charges: (1) rude conduct (two specifications); (2) absence without leave (AWOL) (two specifications ); (3) failure to follow instructions (six specifications); and (4) falsifying time and attendance records (WebTA) (three specifications). Initial Appeal File (IAF), Tab 7 at 53-57. The appellant filed an appeal in which he argued that the age ncy committed harmful error, denied him reasonable accommodation , and retaliated against him for prior equal employment opportunity (EEO) activity . IAF, Tabs 1, 10. ¶3 After the appellant withdrew his request for a hearing, the administrative judge issued a decision based on the written record. IAF, Tabs 18, 34. The administrative judge sustained the charge of rude condu ct, finding that the agency proved both specifications. IAF , Tab 34, Initial Decision (ID) at 6 -9. The administrative judge also sustained the AWOL charge, finding that the appellant was specifically put on notice over a year prior to the time period in question that he could not combine his reasonable accommodation of telework and agency telework to total 5 days a week . Rather, he was explicitly notified that he was 3 entitled to work at home only 3 days a week and he was required to work in the office on Tuesdays and Wednesdays. ID at 9 -12. Similarly, t he administrative judge sustained all six specification s and the charge of failure to follow instructions. ID at 12 -15. Regarding the charge of falsifying the WebTA, the administrative judge sustained the charge, but only sustained one of the three specifications. ID at 15 -18. The administrative judge then addressed the appellant’s affirmative defenses of harmful er ror, denial of reasonable accommodation, and retaliation for his prior EEO activity, and found that the appellant failed to prove any of his affirmative defenses. ID at 18-23. Based on the sustained charges, the appellant’s prior disciplinary record for similar offenses, and the deciding official’s consideration of the appropriate Douglas2 factors, the administrative judge affirmed the agency’s decision to remove the appellant. ID at 23 -25. ¶4 The appellant has filed a petition for review. Petition for R eview (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3. DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge correctly sustained the AWOL charge and properly concluded that the appellant failed to establish disability discriminat ion. ¶5 On review, the appellant challenges the administrative judge’s determination that the agenc y proved the AWOL charge .3 Specifically , he contends that management was “not on one accord” regarding his reasonable accommodation provisions and that his managers’ personal biases were not considered. PFR File, Tab 1 at 4. He also argues that his case is similar to Equal 2 See Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981) (prov iding a nonexhaustive list of factors relevant to determining the appropriateness of a penalty for misconduct). 3 The appellant does not challenge the administrative judge’s findings concerning his harmful procedural error or retaliation for EEO activity affirmative defenses , nor does he argue that the administrative judge erred in sustaining the rude conduct, fa ilure to follow instructions, and falsifying WebTA charges . 4 Employment Opportunity Commission v. Ford Motor Co ., 782 F.3d 753 (6th Cir. 2015), which involved a request for telework. The appellant asserts that, even though the appellant in Ford lost her appeal because her job could not be completed from home, his entire job duties could b e performed by teleworking. PFR File, Tab 1 at 4. The appellant also contends that the AWOL charge should not have been sustained because it results from a “miscommunication ” about a reasonable accommodation issue that “never was clear ed [up] in writing, ” as he requested. Id. ¶6 To prove that the appellant was AWOL, the agency must show that he was absent during the stated period and that the absence was unauthorized or that a request for leave was properly denied. Robb v. Department of Defense , 77 M.S.P.R. 130 , 132 -33 (1997). An AWOL charge may be sustained even when the agency fails to prove that the employee was AWOL for t he entire period charged. Senior v. U.S. Postal Service , 85 M.S.P.R. 283 , 289 (2000). ¶7 Here, the administrative judge found that t he agency proved the AWOL charge by preponderant evidence. ID at 10 -12. In making this finding, t he administrative judge fully discussed the AWOL charge and the relevance of the appellant’s reasonable accommodation as it relates to this charge and found that the appellant was put on explicit notice that he was entitled to telework only 3 days a week, and that he was required to work in the office on Tuesday s and Wednesday s. ID at 9 -12. Further , the evidence shows, and the appellant does not deny , that he failed to report to work in the office 2 days a week , even though he was repeatedly notified by his supervisors that he was required to work in the office on Tuesdays and Wednesdays . IAF, Tab 7 at 66-73, 147, 204 -05. ¶8 To the extent the appellant argu es that the decision in Ford supports his claim that he is entitled to telework full -time because the agency had approved 5 his reasonable accommodation request to telework 3 days a week , we disagree.4 Ford addresses an employer’s requirement under the Amer icans with Disabilities Act (ADA) to make reasonable accommodations for an otherwise qualified individual with a disability . See generally 782 F.3d 753 . In deciding Ford , the U.S. Court of Appeal s for the Sixth Circuit held that the general rule under the ADA is “that regularly attending work on -site is essential to most jobs , especially the interactive ones. ” Id. at 761 -62. Here , it is undisp uted that the agency provided the appellant with reasonable accommodation of teleworking 3 days a week and advised him that he was required to work in the office on the agency -required core days . The re is no record evidence that the appellant ever sought additional reasonable accommodation with updated medical documentation. Hence, we find no support in Ford for the appellant’s claim that the agency was required to accommodate his disability by allowing him to telework 5 days a week , or that he was entitl ed to combine his existing accommodation with eligibility under the agency’s telework policy to telework full-time . ¶9 Therefore, even though the appellant disagrees with the administrative judge’s findings and determinations concerning the AWOL charge and the agency’s requirement that he work in the office 2 days a week , we have reviewed the record evidence and we find no support for the appellant’s contention that he was improperly charged with AWOL or that the agency committed disability discrimination by failing to allow him to telework 5 days a week . Accordingly, we find no basis upon which to disturb the administrative judge’s determination that the agency proved the AWOL charge by preponderant evidence . 4 The agency does not dispute that the appellant had a disability entitling him to a reasonable accommodation. 6 The a ppellant’s disparate penalties claim does not provide a basis for reversing the initial decision. ¶10 Finally, t he appellant challenges th e removal penalty on the ground that he was treated more harshly than other employees . PFR File, Tab 1 at 4. When analyzing disparate penalty claim s, the relevan t inquiry is whether the agency knowingly and unjustifiably treated similarly situated employees differently. Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 14; see Facer v. Department of the Air Force , 836 F.2d 535 , 539 (Fed. Cir. 1988) (providing that a person does not have a legally protected interest in the evenness of a misconduct penalty assessed on him compared to that assessed on others unless employees are knowingly treated differently “in a way not justified by the facts, and intentionally for reasons other than the efficiency of the service”). To establish disparate penalties among employees, the appellant must show that “the charges and the circumstances surrounding the charged behavior are substantially similar.” Miskill v. Social Security Administration , 863 F.3d 1379 , 1384 (Fed. Cir. 2017). The universe of potential comparators will vary from case to case, but should be limited to those employees whose misconduct or other circumstances closely resemble those of the appellant. Singh , 2022 MSPB 15, ¶ 13. ¶11 Here, t he appellant’s disparate penalties claim consists solely of his allegation that he “has seen employees fighting and other serious actions that have not resulted in removal.” PFR File, Tab 1 at 4. This allegation is insufficient to show that the employees in question engaged in the same or similar conduct as the appellant or that the ag ency knowingly and unjustifiably treated those employees differently. Hence, the appellant’s disparate penalties claim does not provide a basis for disturb ing the administrative judge’s finding that removal is a reasonable penalty in this case. 7 NOTICE O F 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 t ime limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular fo rum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U .S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a peti tion for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 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 i n any matter. 8 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional inform ation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC r eview of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. I f so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action inv olves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 9 requirement of prepayment of fees, costs, or other securi ty. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request f or review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 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 personne l practice describ ed in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of co mpetent 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 inform ation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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 jurisd iction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 Contact information fo r the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	JACKSON_SEAN_DC_0752_17_0381_I_1_FINAL_ORDER_2030852.pdf	2023-05-12	null	DC-0752	NP
3,147	https://www.mspb.gov/decisions/nonprecedential/FOSTER_THOMAS_W_SF_0752_18_0039_X_1_FINAL_ORDER_2030888.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD THOMAS W. FOSTER, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER SF-0752 -18-0039 -X-1 DATE: May 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Brook L. Beesley , Alameda, California, for the appellant. Melissa A. Dunkley , Pamela J. Campbell , and Stephen Geringer, Esquire, Joint Base Lewis -McChord, Washington, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 On October 12, 2018, the appellant filed a petition for enforcement of the administrative judge’s June 4, 2018 initial decision, which became the Board’s final order on July 9, 2018, when neither party filed a petition for review. Foster v. Department of the Army , MSPB Docket No. SF-0752 -18-0039 -C-1, Compliance File (CF), Tab 1; Foster v. Department of the Army , MSPB Docket No. SF-0752 - 18-0039 -I-1, Initial Appeal File, Tab 28, Initial Decision. On January 7, 2020, the administrative judge issued a complia nce initial decision finding the agency in compliance and denying the appellant’s petition for enforcement . CF, Tab 31, Compliance Initial Decision. The appellant appealed that decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circui t), which issued a decision on October 15, 2020, affirming the compliance initial decision in part and reversing it in part. Foster v. Department of the Army , MSPB Docket No. SF-0752 -18-0039 -M-1, Remand File (RF), Tab 1. In a February 17, 2021 remand com pliance initial decision, the administrative judge found the agency in noncompliance with the Board’s final decision and granted the appellant’s petition for enforcement. RF, Tab 11, Remand Compliance Initial Decision (RCID). For the reasons discussed be low, we now find the agency in compliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 The Federal Circuit found that the agency had not properly calculated payment for the appellant’s uniform all owance. RF, Tab 1 at 9. Accordingly, on remand from the court, the administrative judge granted the appellant’s petition for enforcement in part, finding that the agency had not restored him to the status quo ante , in that it had not properly restored hi s uniform allowance. RCID at 6 . Specifically, the administrative judge ordered the agency to pay the appellant a uniform allowance of $1,600. Id. Neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114 . As 3 such, pursuant to 5 C.F.R. § 1201.183 (b)-(c), the administrative judge’s findings of noncompliance became final, and the appellant’s petition for enforcement has been referred to the Board for a final decision on issues of compliance. Foster v. Department of the Army , MSPB Docket No. SF-0752 -18-0039 -X-1, Compliance Referral File (CRF), Tab 1. ¶3 The Clerk of the Board issued an acknowledgment order on March 26, 2021, directing the agency to submit a statement and evidence that it had taken the actions identified in the remand compliance initial decision within 15 calendar days. CRF, Tab 1 at 1. The order also directed the appellant to file a response to the agency’s evidence of compliance within 20 calendar days after the agency’s evidence was submitted. Id. at 3. The order informed the appellant that, if he did not submit a response to the age ncy’s evidence of compliance, the Board may assume he was satisfied and dismiss the petition for enforcement. Id. ¶4 The agency submitted a statement on March 29, 2021, which detailed its attempts to communicate with the appellant’s representative in order to obtain the documents needed to process the uniform allowance payment. CRF, Tab 2 at 4 -5. The agency stated that the representative did not immediately supply the necessary documentation. Id. The agency averred that, once it received the documents f rom the appellant’s representative, it forwarded them to the Defense Finance and Accounting Service, which is the entity responsible for issuing the payment. Id. at 5. The agency stated that it required additional time to complete the payment due to the appellant’s representative’s delay in responding to its request for the documentation. Id. at 5-6. ¶5 The appellant filed a reply and request for sanctions on April 15, 2021, alleging that the agency had not timely filed a compliance pleading and had not paid the required interest on the uniform allowance. CRF, Tab 4. The appellant requested sanctions against the agency for these alleged actions. Id. at 7-8. ¶6 The agency filed a response on April 21, 2021, stating that the lump sum uniform allowance paym ent of $1,600 was received by the appellant on April 21, 4 2021, and that the interest would be paid in a separate payment. CRF, Tab 5 at 4, 7. The agency submitted another response on May 13, 2021, which stated that payment of the allowance and interest w as complete. CRF, Tab 6. The agency attached a declaration and documentation indicating that, in addition to the $1,600 lump sum payment on April 21, 2021, the appellant received an interest payment of $236.08 on April 24, 2021. Id. at 4, 6 -9. The appe llant did not respond to these agency submissions. ANALYSIS ¶7 When the Board finds a personnel action unwarranted or not sustainable, it orders that the appellant be placed, as nearly as possible, in the situation he would have been in had the wrongful pers onnel action not occurred. House v. Department of the Army , 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the burden to prove its compliance with a Board order. An agency’s assertions of compliance must include a clear explanation of its compliance actions supported by documentary evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by making “specific, nonconclusory, and supported assertions of continued noncompliance.” Brown v. Office of Personnel Management , 113 M.S.P.R. 325 , ¶ 5 (2010). ¶8 We find that the agency has submitted sufficient evidence to establish its compliance with the Board’s order. The agency submitted declarations and accompanying documentation indicating that two payments were made to the appellant: a payment of $1,600 for the u niform allowance and a payment of $236.08 for interest. CRF, Tabs 5 -6. The appellant did not respond to these submissions, despite being informed by the acknowledgment order that a failure to respond could lead to dismissal of his petition for enforcemen t. 5 ¶9 We deny the appellant’s request for sanctions, finding that the agency submitted a response within the time period required by the acknowledgment order and has now fully complied with Board’s final decision. ¶10 In light of the agency’s evidence of comp liance, and the appellant’s failure to respond, we find the agency in compliance and dismiss the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regu lations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file wi thin the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If 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 petitio n for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2 0439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained withi n the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for inform ation regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 7 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives t his decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEO C via commercial delivery or by a method requiring a signature, it must be addressed to: 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 protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited p ersonnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of competent jurisdiction.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, sig ned into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court o f 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 wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for inf ormation regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case . Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/Cour tWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	FOSTER_THOMAS_W_SF_0752_18_0039_X_1_FINAL_ORDER_2030888.pdf	2023-05-12	null	SF-0752	NP
3,148	https://www.mspb.gov/decisions/nonprecedential/HAMILTON_LEA_DA_0752_19_0350_X_1_FINAL_ORDER_2030896.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LEA HAMILTON, Appellant, v. DEPARTMENT OF THE AI R FORCE, Agency. DOCKET NUMBER DA-0752 -19-0350 -X-1 DATE: May 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lea Hamilton , San Antonio, Texas, pro se. Chad E. Christenson , Esquire, Lackland Air Force Base, Texas, for the agency. Charles R. Vaith , Esquire, and Major Kyle Little , Randolph Air Force Base, Texas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 In a March 31, 2020 compliance initial decision , the administrative judge found the agency in noncompliance with a September 25, 2019 settlement agreement that had been entered into the record for purposes of enforcement by the Board . Hamilton v. Department of the Air Force , MSPB Docket No. DA - 0752 -19-0350 -C-1, Compliance File (CF), Tab 12, Compliance Initial Decision (CID); Hamilton v. Department of the Air F orce , MSPB Docket No. DA -0752 -19- 0350 -I-1, Initial Appeal File (IAF), Tab 26, Tab 27, Initial Decision (ID). Accordingly, the administrative judge granted the appellant’s petition for enforcemen t and ordered the agency to comply with its obligations under the terms of the settlement agreement . CID at 5. For the reasons discussed below, we now find the agency in compliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 On September 25, 2019, the parties entered into a settlement agreement resolving the appellant’s removal appeal. IAF, Tab 26. The agreement provided, among other things, that the agency would pay the appellant $15,000 by electronic funds transfer. Id. at 1. On January 23, 2020, the appellant filed a petition for enforcement alleging that she had still not received the $15,000. CF, Tab 1. In the compliance initial decision, t he administrative judge found that the agency’s delay in paying the appellant was unreasonable and constituted a material breach of the settlement agreement. CID at 3 -4. Accordingly, she granted the appellant’s petition for enforcement and ordered the agency to pay the appellant $15,000 by electronic funds transfer within 20 days. CID at 5. ¶3 The compliance initial decision informed the agency that, if it decided to take the actions required by the decision, it must submit to the Clerk of the Board, within the time limit for filing a petition for review under 5 C.F.R. § 1201.114 (e), a statement that it has taken the actions identified in the compliance initial 3 decision , along with evidence establishing that it has taken those actions. CID at 5-6; 5 C.F.R. § 1201.183 (a)(6)(i). The compliance initial decision also informed the parties that they could file a petition for review if they disagreed with the compliance initial decision. CID at 6 -7; see 5 C.F.R. §§ 1201.114 (e), 1201.183(a)(6)(ii). ¶4 On May 5 , 2020, the agency informed the Board that it had complied with the compliance initial decision and submitted evidence reflecting that the Defense Finance and Accounting Service (DFAS) paid the appellant $15,000 on April 8, 2020. Hamilton v. Department of the Air Force , MSP B Docket No. DA -0752 -19- 0350 -X-1, Compliance Referral File (CRF), Tab 1. In a May 6, 2020 acknowledgment order, the Clerk of the Board notified the appellant that she could respond to the agency’s submission within 20 days and that, if she did not respond , the Board may assume she was satisfied and dismiss her petition for enforcement. CRF, Tab 2. The appellant did not respond . ¶5 A settlement agreement is a contract and, as such, will be enforced in accord ance with contract law. Burke v. Department of Vet erans Affairs , 121 M.S.P.R. 299 , ¶ 8 (2014). The Board will enforce a settlement agreement that has been entered into the record in the same manner as a final Board decision or order. Id. When the appellant alleges noncompliance with a settlement agreement, the agency must produce relevant material evidence of its compliance with the agreement or show that there was good cause for no ncompliance. Id. The ultimate burden, however, remains with the appellant to prove breach by a preponderance of the evidence. Id. ¶6 As described above, in the compliance initial decision, the administrative judge found that the agency failed to establish that it had complied with its obligation to pay the appellant $15,000 . CID at 3. The agency’s submissions show that it has now reached full compliance with this obligation. In particular, as set forth above, the agency provided evidence reflecting that DFAS paid the appellant $15,000 on April 8, 2020. CRF, Tab 1. As the appellant has not 4 responded to the agency’s assertions and evidence of compliance, the Board assumes that she is satisfied. See Baumgartner v. Department of Housing and Urban Developme nt, 111 M.S.P.R. 86 , ¶ 9 (2009). ¶7 In light of the foregoing, we find that the agency is now in compliance and dismiss the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, sec tion 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this fi nal decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that fo rum for more information. 3 Since the issuance of the initial decision in thi s matter, the Board may have updated the notice 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 th e court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 6 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, cost s, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims onl y, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 7 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 2 0507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 judic ial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. P ub. 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 Petitione rs and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney w ill accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HAMILTON_LEA_DA_0752_19_0350_X_1_FINAL_ORDER_2030896.pdf	2023-05-12	null	DA-0752	NP
3,149	https://www.mspb.gov/decisions/nonprecedential/DAVID_BARBARA_PH_0432_20_0014_X_1_FINAL_ORDER_2030910.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BARBARA DAVID, Appellant, v. DEPARTMENT OF THE AI R FORCE, Agency. DOCKET NUMBER PH-0432 -20-0014 -X-1 DATE: May 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Barbara David , Frederick, Maryland, pro se. Matt Hughes , Joint Base Andrews, Maryland, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 This case is before the Board on the appellant’s petition for enforcement of the administrative judge’s order requiring the agency to comply with the terms of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 the settlement agreement that resolved her adverse action appeal. David v. Department of the Air Force , MSPB Docket No. PH -0432 -20-0014 -C-1, Compliance File, Tab 5, Compliance Initial Decision (CID). The ad ministrative judge ordered the agency to provide the neutral reference letter and $15,000 payment that the agency agreed to pay the appellant . CID at 4. ¶2 The agency first provided the appellant a neutral reference letter, which the appellant has acknowledged. David v. Department of the Air Force , MSPB Docket No. PH -0432 -20-0014 -X-1, Compliance Referral File (CRF), Tab 2 at 10, 12-13. After delays due to mailing errors, the a gency submitted evidence to show that it has complied with its other obligation under the settlement agreement. The agency has submitted a copy of a check, which shows on its face a payment for $15,000 made out to the appellant and on the r everse side show s the deposit of the amount into the appellant’s bank account . CRF, Tab 6 at 6. ¶3 The appellant has not filed any subsequent submissions to the Board concerning this matter . Accordingly, we find that the agenc y is in compliance and dis miss the petition for enforcement . This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(b) ( 5 C.F.R. § 1201.183 (b)). NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statu te, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of availa ble appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a 3 Since the issu ance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may res ult in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appr opriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Ap peals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prote ction Board appellants before the Federal Circuit. The 4 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in t his case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator /CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 5 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail , the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option app lies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appea ls must receive your petition for 4 The original statutory p rovision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows app ellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 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 Appe als for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prote ction Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. The All Circuit Review Act is r etroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DAVID_BARBARA_PH_0432_20_0014_X_1_FINAL_ORDER_2030910.pdf	2023-05-12	null	PH-0432	NP
3,150	https://www.mspb.gov/decisions/nonprecedential/CARUPELLA_PAYCE_PH_3443_17_0124_I_1_FINAL_ORDER_2030924.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD PAYCE CARUPELLA, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER PH-3443 -17-0124 -I-1 DATE: May 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Randolph Elliott , Camp Hill, Pennsylvania, for the appellant. Nancy Anna Waldron , Huntsville, Alabama, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a pet ition for review of the initial decision, which dismissed her individual right of action (IRA) appeal for lack of jurisdiction . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous fi ndings 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 dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or th e initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal , we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The Board has jurisdiction over an IRA appeal if the appellant has exhausted her administrative remedies before the Office of Special Counsel (OSC) and makes nonfrivolous allegations that (1) she engaged in whistleblowing activity b y making a protected disclosure and (2) the disclosure was a contributin g factor in the agency’ s decision to take or fail to take a personnel action. Yunus v. Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001). To satisfy the exhaustion requirement of 5 U.S.C. § 1214 (a)(3) in an IRA appeal, an appellant must file a complaint with OSC and inform OSC of the precise ground of her charge of whistleblowing, giving OSC a sufficient basis to pursue an investigation which might lead to corrective action.2 Ward v. Mer it Systems Protection Board , 981 F.2d 521 , 526 (Fed. Cir. 1992). ¶3 Here, although the appellant claimed that the agency took various actions again st her in reprisal for protected whistleblowing, she indicated on her appeal form that she had not filed a complaint with OSC. Initial Appeal File, Tab 1 at 6. 2 We have reviewed the relevant legislation amending the whistleblower protection statutory scheme that was enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal, nor does it affect the relevant holdings of the case law cited in this Final Order. 3 There is nothing in the record below otherwise show ing that the appellant first sought relief with OSC before filing her Board appeal. Therefore, the administrative judge correctly dismissed the appeal for lack of IRA jurisdiction. ¶4 On review, the appellant asserts that she filed a complaint with OSC, and she includes a copy of her complaint and co rrespondence from OSC. Petition for Review ( PFR ) File, Tab 1 at 9 -15. The Board has exercised its disc retion to reopen an appeal when the appellant submits evidence for the first time on review that does not meet the Board’s review criteria under 5 C.F.R. § 1201.115 (d) but that implicates the Board’s jurisdiction an d warrants an outcome different from that in the initial decision. Atkinson v. Department of State , 107 M.S.P.R. 136 , ¶ 12 (2007) . In pa rticular, when an appellant submits evidence of exhaustion for the first time on review, the Boar d will consider it, along with other record evidence, to d etermine if the appellant has m et her jurisdiction al burden. Schoenig v. Department of Justice , 120 M.S.P.R. 318 , ¶ 7 (2013) . ¶5 Here, instead of filing an OSC Form 11 “Complaint of Possible Prohibited Personnel Practice or Other Prohibited Activity” with OS C’s Complaints Examining Unit, t he appellant filed an OSC Form 12 “Di sclosure of Information” with OSC’s Disclosure Unit.3 PFR File, Tab 1 at 9 -15. The Disclosure Unit does not review allegations of prohibited personnel practices, and the Board has held that making a disclosure to the Disclosure Unit does not satisfy the exhaustion requirement under 5 U.S.C. § 1214 (a)(3). Scoggins v. Department of the Army , 123 M.S.P.R. 592 , ¶ 9 (2016); Mason v. Department of Homeland Security , 116 M.S.P .R. 135 , ¶ 16 (2011). Therefore, the appellant’s newly filed evidence does not establish that she exhausted her administrative remedies before OSC and does not warrant an outcome different from that of the initial decision. We thus 3 After the appellant submitted the form to OSC , OSC reorganized its components such that the functions previously performed by the Complaints Examining Unit are no w performed by the Investigation and Prosecution Division. 4 find that the administ rative judge correctly dismissed this appeal for lack of IRA jurisdiction. NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 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 adv ise 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 d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calend ar days after your representative receives this decision. If the action involves a claim of discrimination based on 6 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer an d to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed thro ugh the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your d iscrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washi ngton, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW 12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 7 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no chal lenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review e ither with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 releva nce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals fo r the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 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 circui t court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CARUPELLA_PAYCE_PH_3443_17_0124_I_1_FINAL_ORDER_2030924.pdf	2023-05-12	null	PH-3443	NP
3,151	https://www.mspb.gov/decisions/nonprecedential/ALONZO_JAMES_R_DA_0714_18_0395_I_1_FINAL_ORDER_2030994.pdf	Document #: 2021309 v 1 UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JAMES R. ALONZO, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DA-0714 -18-0395 -I-1 DA-0714 -18-0513 -I-1 DATE: May 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jeremy Gilbreath , Esquire , San Antonio, Texas, for the appellant. Robert C. Burlison, III , Esq uire, San Antonio, Texas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has petitioned for review of the November 2, 2018 initial decision in these join ed appeal s. Alonzo v. Department of Veterans Affairs , MSPB Docket No. DA -0714 -18-0395 -I-1, Initial Appeal File (0395 IAF) , 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Tab 312; Petition for Review ( 0395 PFR) File, Tab 1. For the reasons set forth below , we DISMISS the se appeal s as settled. ¶2 After the filing of the petition for review, the parties submitted a document entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on March 10, 2023 , and by the agency on March 15, 2023 . 0395 PFR File, T ab 3 at 6-9. The document provides, among other things, for the withdrawal of the appellant’s petition for review in the above -captioned appeal s. Id. at 6. ¶3 The Board retains jurisdiction to enforce a settlement agreement if it has been entered into the record for that purpose. Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 16, 21 (2017). If the parties enter an agreement into the record and it is approved by the administrative judge, it will be enforceable by the Board unless the parties clearly specify that they do not w ant Board enforcement. Stewart v. U.S. Postal Service , 73 M.S.P.R. 104 , 107-08 (1997); see 5 C.F.R. § 1201.41 (c)(2)(i) (providing that a settlement agreement will be made a part of the record, and the Board will retain jurisdiction to ensure compliance, if the parties offer it for inclusion into the record and the ju dge approves it). 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 , 124 M.S.P.R. 123, ¶¶ 10-11. ¶4 Here, we find that the parties have entered into a settlement agreement, understand its terms, and inte nd for the agreement to be entered into the record for enforcement by the Board. 0395 PFR File, Tab 3 at 4-9. Accordingly, we find that dismissing the appeal with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropriat e under these circumstances. In 2 The administrative judge joined MSPB Docket No. DA-0714 -18-0395 -I-1 and MSPB Docket No. DA -0714 -18-0513 -I-1 in an October 17, 2018 order. 0395 IAF, Tab 30. MSPB Docket No. DA-0714 -18-0395 -I-1 is designated as the lead case, and subsequent citations to the record will be to this docket number. 3 addition, we find that the agreement is lawful on its face and freely entered into, and we accept the settlement agreement into the record for enforcement purposes. ¶5 In light of the foregoing, we find that dismissing the pet ition for review with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances. ¶6 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS If the agency or the appellant has not fully carried out the terms of the agreem ent, 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 b elieves 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. § 1201.1 82(a). NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a 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 in dicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular foru m is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S . Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petiti on for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision bef ore you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling c ondition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can b e found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision be fore you do, then you must file 6 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 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 petit ion to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website , www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 Contact information for the courts of appeals can be found at their respective websites, which can be accessed throug h the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ALONZO_JAMES_R_DA_0714_18_0395_I_1_FINAL_ORDER_2030994.pdf	2023-05-12	null	DA-0714	NP
3,152	https://www.mspb.gov/decisions/nonprecedential/TATE_STEVEN_O_DA_0752_17_0010_I_1_FINAL_ORDER_2031038.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD STEVEN O. TATE, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER DA-0752 -17-0010 -I-1 DATE: May 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shaun Whitehead , Esquire, Cleveland, Ohio, for the appellant. Beverlei E. Colston , Esquire, Irving, Texas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal of his allegedly involuntary resignation for lack of jurisdiction without holding the requested hearing. On petition for review, the appellant argues that his resignation was involuntary because it was based 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 require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 agency misinformation, he faced intolerable working conditions, his removal was threatened without good cause, and he was pressured to resign without sufficient time to consider his options. Generally, we grant petitions such as this one only in the following circumstances: t he 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 dur ing either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is availab le that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offe r the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement 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. 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 r eview with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the c ourt’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information r egarding pro bono representation for Merit Systems Protection Board appellants before the 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 di scrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calenda r days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed thro ugh the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your d iscrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 5 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washi ngton, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW 12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no chal lenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review e ither with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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 “G uide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit , you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor war rants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	TATE_STEVEN_O_DA_0752_17_0010_I_1_FINAL_ORDER_2031038.pdf	2023-05-12	null	DA-0752	NP
3,153	https://www.mspb.gov/decisions/nonprecedential/HILLER_JAMES_B_DC_0752_14_0520_X_1_FINAL_ORDER_2031061.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JAMES B. HILLER, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DC-0752 -14-0520 -X-1 DATE: May 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Bradley P. Moss , Esquire, Washington, D.C., for the appellant. Richard Kane , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 In a June 15, 2018 compliance initial decision, the administrative judge granted, in part, the appellant’s second petition for enforcement of the Board’s 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 September 30, 2016 final decision mitigating his demotion to a 30 -day suspension. Hiller v. Department of the Army, MSPB Docket No. DC -0752 -14- 0520 -C-1, Compliance File, Tab 6, Compliance Initial Decision (CID); Hiller v. Department of the Army, MSPB Docket No. DC -0752 -14-0520 -I-3, Initial Appeal File, Tab 28, Initial Decision.3 Specifically, the administrative judge found the agency noncompliant with the Board’s final decision to the extent it failed to produce a legible document showing how it calculated interest on the appellant’s back pay award and ordered the agency to prod uce it. CID at 12. For the reasons discussed below, we now find the agency in compliance and DISMISS the appellant’s second petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 In the compliance initial decision, the administrative judge informed the agency that, if it decided to take the action ordered, it must submit to the Clerk of the Board a narrative statement and evidence establishing compliance. CID at 13. In addition, he informed both parties that they could file a petition for review of the compliance initial decision if they disagreed with the findings therein. CID at 13-14. Neither party filed any submission with the Clerk of the Board within the time limit set for th in 5 C.F.R. § 1201.114 . As such, pursuant to 5 C.F.R. § 1201.183 (b)-(c), the administrative judge’s findings of noncompliance became final, and the appellant’s second petition for enforcement was referred to the Board for a final decision on issues of compliance. Hiller v. Department of the Army, MSPB Docket No. DC -0752 -14-0520 -X-1, Compliance Referral File (CRF), Tab 1. 3 Although the agency requested and received an extension of time to file an administrative petition for review of the initial decision, it ultimately did not file o ne. Hiller v. Department of the Army , MSPB Docket No. DC -0752 -14-0520 -I-3, Petition for Review File, Tabs 1 -2. Accordingly, the September 30, 2016 initial decision became the final decision of the Board. 3 ¶3 On July 25, 2018, the Clerk of the Board issued an acknowledgment order directing the agency to submit evidence showing that it had complied with all actions identified in the compliance initial decision. CRF, Tab 1 at 3. The acknowledgement order informed the appellant that he may respond to the agency’s compliance submission within 20 calendar days of its date of service and that, in the absence of a response, the Board may assume that he was satisfied and dismiss the petition for enforcement. Id. at 3. ¶4 On April 9, 2019, the agency submitted, in relevant part, a legible back pay computation summary report showing that the appellant was entitled to $3,704.01 in interest on his back pay award. CRF, Tab 2 at 6-12. The appellant has not filed a res ponse to the agency’s submission, despite being notified of his opportunity to do so and of the consequences of not responding. Accordingly, we assume he is satisfied with the agency’s compliance. See Baumgartner v. Department of Housing and Urban Develo pment , 111 M.S.P.R. 86 , ¶ 9 (2009). ¶5 In view of the agency’s submission and the appellant’s lack of response, the Board finds the agency in compliance and dismisses the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). 4 NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriat e for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applica ble to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choice s of review below to decide which one applies to your particular case. If you have questions 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services p rovided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain 6 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 7 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. C ourt 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: 5 The original statutory provision that provided for judicial r eview of certain whistleblower clai ms by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certa in whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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 relev ance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals f or the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided b y any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HILLER_JAMES_B_DC_0752_14_0520_X_1_FINAL_ORDER_2031061.pdf	2023-05-12	null	DC-0752	NP
3,154	https://www.mspb.gov/decisions/nonprecedential/NATALE_BARRY_LOUIS_PH_0831_20_0190_X_1_FINAL_ORDER_2031123.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BARRY LOUIS NATALE, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER PH-0831 -20-0190 -X-1 DATE: May 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Barry Louis Natale , Norwalk, Connecticut, pro se. Jo Bell , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 In a February 3, 2021 compliance initial decision, the administrative judge found the Office of Personnel Management (OPM) in partial noncompliance with the Board’s July 29, 2020 final decision, which reversed OPM’s reduction of the appellant’s Civil Service Retirement System (CSRS) annuity to exclude post-1956 military service for which he had not made a deposit. Natale v. Office of Personnel Management , MSPB Docket No. PH-0831 -20-0190 -C-1, Compliance File, Tab 40, Compliance Initial Decision (CID) at 1 -6. For the reasons di scussed below, we now find OPM in compliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 In the compliance initial decision, the administrative judge found that, while OPM had complied with its obligation to allow the appellant to make a post-retirement military service deposit, it failed to establish compliance with its obligation to determine whether his military service deposit should be adjusted for civilian pay contributions he made during three specified periods of military service: March 4, 2002, to September 15, 2003; October 1, 2003, to June 3, 2004; and August 1, 2004, to March 15, 2005. CID at 3. Accordingly, she granted the appellant’s petition for enforcement and ordered OPM to ta ke the following actions: (1) make a final determination as to whether the appellant’s military service deposit should be adjusted for the civilian pay contributions he made during the three periods of military service ; (2) pay the appellant the appropria te amount in retroactive annuity payments and provide him a comprehensive statement as to how OPM calculated those payments; and (3) make a final determination as to whether the appellant is entitled to interest on the retroactive annuity payments, which w ere delayed as a result of Government errors, and, if so, how much . CID at 6. 3 ¶3 The administrative judge informed OPM that, if it decided to take the ordered actions, it must submit to the Clerk of the Board a narrative statement and evidence establishing c ompliance. CID at 7. The administrative judge further informed the agency that, if it decided not to take all of the ordered actions, it must file a petition for review of the compliance initial decision. CID at 7 -8. The administrative also informed th e appellant of his option to file a petition for review of the compliance initial decision. CID at 9. ¶4 Neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114 . Accordingly, pursuant to 5 C.F.R. § 1201.183 (b)-(c), the administrative judge’s findings of noncompliance have become final, and the appellant’s petition for enforcement has been referred to the Board for a final decision on issues of compliance. Natale v. Office of Personnel Management , MSPB Docke t No. PH-0831 -20-0190 -X-1, Compliance Referral File (CRF), Tab 1. ¶5 On March 17, 2021, the Board issued an acknowledgment order directing OPM to submit evidence showing that it has complied with all actions identified in the compliance initial decision. C RF, Tab 1 at 3. In response, OPM submitted a February 4, 2021 letter it apparently sent to the appellant. CRF, Tab 2. The letter reflects, in relevant part, that the appellant made military service deposits in the amount s of $3,271.02 for the period of service from March 4, 2002, to September 15, 2003; $1,749.13 for the period from October 1, 2003, to June 3, 2004; and $1,594.15 for the period from August 1, 2004, to March 15, 2005 , for a total of $6,614.3 0. Id. at 4. In addition, the letter states tha t—apparently as a result of the post -retirement military service deposits —OPM increased the “gross rate” of the appellant’s CSRS annuity from $2,630.00 to $2,921.00 and determined that he was entitled to a retroactive annuity payment for the period from Fe bruary 1, 2018, through January 30, 2021, in the gross amount of $10,150.00. Id. at 4. OPM indicated that the increased annuity would be reflected in the appellant’s March 1, 2021 annuity payment and that the 4 retroactive annuity payment would be paid out separately in a lump sum in 3 to 5 business days. Id. at 5. ¶6 On March 22, 2021, the appellant responded to OPM’s submission. CRF, Tab 3. He stated that “not all of the provisions detailed in OPM’s letter . . . have become a reality.” Id. at 3. In ad dition, he stated that he ha d not received any interest on the retroactive payment. Id. OPM did not respond. ¶7 By order dated April 12, 2021, the Board ordered OPM to address the appellant’s allegations of noncompliance, as well as its compliance with t he administrative judge’s orders to make final determinations as to whether the appellant’s military service deposit should be adjusted for the civilian pay contributions he made during the three periods of military service and whether the appellant is ent itled to interest on the retroactive annuity payment delayed due to Government errors and, if so, how much. CRF, Tab 4. ¶8 OPM responded to the Board’s order on May 3, 2021. CRF, Tab 5. As to whether the appellant’s military service deposit should be adjus ted for th e civilian pay contributions he made during the three periods of military service, OPM averred th at the separating agency, U.S. Postal Service (USPS) , had the power to do so, not OPM. Id. at 4 -5. OPM explained that , when a Federal civilian employee retires, the separating agency creates a n Individual Retirement Record (IRR) that reflects the employee’s military and civilian service during his Federal employment and that OPM relies on this record to calculate retirement annuities and military deposits. Id. at 5. OPM stated that it has no authority to amend an IRR on its own . Id. ¶9 In response to OPM’s submission, the appellant argued that OPM was still not in compliance with the Board’s final order and stated that OPM owed him 3 years of interest on the $10,150 retroactive annuity payment and a refund with interest of the civilian CSRS deposit ($1,449.85) he made while serving on active duty while an employee of USPS . CRF, Tab 7 at 4-5. 5 ¶10 On September 28, 2021, OPM submitted a copy of an August 18, 2021 final decision addressing the two outstanding compliance matters.3 CRF, Tab 8. First, OPM reiterated its position stated in its May 3, 2021 compliance submission that the separating agency, USPS, not OPM, determined the amount of the military service deposit when it amended the IRR and that OPM has no authority to amend the IRR . Id. at 4. OPM referred the appellant to contact USPS if he believed his military service deposit was incorrect. Id. Second, OPM stated that “[t]he statute is silent regarding you being compensated in interest due to delayed annuity payments” and directed him to contact USPS for other possible remedies to which he may be entitled . Id. OPM indicated that this was the final decision of OPM and notified the ap pellant of his right to appeal the decision to the Board. Id. ¶11 The agency bears the burden of proving that it has complied with a final Board order. Pace v. Office of Personnel Management , 117 M.S.P.R. 49 , ¶ 12 (2011) . Compliance must be supported by relevant, material, and credible evidence. Id. ¶12 As noted above, the admi nistrative judge found that, to be in compliance with the Board’s final order, OPM must take the following actions: (1) make a final determination as to whether the appellant’s military service deposit should be adjusted for the civilian pay contributions he made during the three periods of military service ; (2) pay the appellant the appropriate amount in retroactive annuity payments and provide him a comprehensive statement as to how OPM calculated those payments; and (3) make a final determination as to whether the appellant is entitled to interest on the retroactive annuity payments, which were delayed as a result of Government errors, and, if so, how much . CID at 6. 3 The decision also notes that the appe llant may hold his separating agency responsible for any interest he had to pay on his military service deposit due to the Government’s error or delay. CRF, Tab 8 at 4. However, this issue is not presently before the Board in this compliance matter. 6 ¶13 In its August 18, 2021 final decision, OPM addressed the first and third outstanding compliance matters . CRF, Tab 8 at 4. As to the military service deposit , OPM essentially stated it has no authority to adjust the appellant’s military service deposit and that he must seek such an adjustment from USPS.4 Id. As to interest on the delaye d annuity payment, OPM stated that the statute, 5 U.S.C. 8334 , “is silent” on this issue and again directed the appellant to contact USPS. Id. Although OPM has not made the specific findings orde red by the administrative judge —i.e., to determine whether the appellant is entitled to an adjustment to his military service deposit and to interest on the retroactive annuity payment —we construe the August 18, 2021 final decision as OPM’s final determina tion on these issues . Id. Specifically, we find that OPM has finally denied the appellant’s request for an adjustment to his military service deposit on the ground that it lacks the authority to determine the appropriate military service deposit or to implement any adjustment to the amount. Id. In addition, we find that OPM h as finally den ied the appellant’s request for interest on the delayed annuity payment on the ground that it lacks the authority to award such interest. Id. Accordingly, we find OPM in compliance with its obligation to make a final determination as to these issues.5 4 In its May 3, 2021 compliance submission, OPM stated: “YES. The appellant should have his military service deposit adjusted for the civilian pay contributions made during his military service.” CRF, Tab 5 at 4. OPM further stated, however, that USPS, not OPM, is responsible for making such an adjustment. Id. 5 If the appellant wishes to challenge OPM’s final determination that it lacks the authority to adjust his military service deposit or to award interest on the retroactive annuity payment, he mu st file a new Board appeal of OPM’s August 18, 2021 final decision, if he has not already done so. As stated in OPM’s final decision, however, an MSPB appeal of OPM’s decision generally must be filed within 30 days after the date of the decision or 30 day s after receipt of the decision, whichever is later. CRF, Tab 8 at 4; see 5 C.F.R. § 1201.22 (b)(1). Nonetheless, t he Board may waive the time limit if there is good cause for the delay. 5 C.F.R. § 1201.22 (c). To establish good cause for an untimely filing, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Williams v. Office of 7 ¶14 Regarding the second action required to establish compliance, OPM provided a copy of a February 4, 2021 letter to the appellant explaining that it increased th e gross rate of his CSRS annuity from $2,630.00 to $2,921.00 and that this increase entitled him to a retroactive annuity payment for the period from February 1, 2018, through January 30, 2021, in the gross amount of $10,150.00. CRF, Tab 2 at 4. Although the appellant responded to the agency’s submission by arguing that “not all of the provisions . . . have become a reality ,” he did not object to the amount of the retroactive annuity payment or the adequacy of its explanation. CRF, Tabs 3, 7. In additio n, he has since acknowledged that he received the retroactive annuity payment. CRF, Tab 7 at 5. Accordingly, we find that OPM is in compliance with its obligation to pay the appellant an appropriate retroactive annuity payment and to explain its calculat ions to the appellant. ¶15 In light of the foregoing, we find that the agency is now in compliance and dismiss the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, sec tion 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). Personnel Management , 109 M.S.P.R. 237 , ¶ 7 (2008). Among the factors that will be considered are the length of the delay, the reasonableness of the appellant ’s excuse and showing of due diligence, whether the appellant is proceeding pro se, and whether there were circumstances beyond the appellant ’s control that affected his ability to comply with the time limit or seek an extension. See id .; 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); see also Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980) (listing more factors, including circumstances showing that any neglect was excusable neglect ). Here, if the appellant appeals OPM’s August 18, 2021 final decision only upon receipt of this final Board decision, the administrative judge should consider, in assessing whether good cause exists for the f iling delay, whether the lack of clarity regarding whether OPM was making a final decision on the outstanding compliance matters in this appeal affected the appellant’s ability to timely file a new Board appeal. 8 NOTICE OF APPEAL RIG HTS6 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicia l review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for 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 decisio n in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 9 U.S. Court of Appeals for the Federal Ci rcuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any att orney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calen dar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer a nd to waiver of any 10 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decisio n. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raise s no challenge to the Board’s 11 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 A ppeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the co urt’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 f or judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 12 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	NATALE_BARRY_LOUIS_PH_0831_20_0190_X_1_FINAL_ORDER_2031123.pdf	2023-05-12	null	PH-0831	NP
3,155	https://www.mspb.gov/decisions/nonprecedential/SWICK_NANCY_J_DC_1221_17_0008_W_1_FINAL_ORDER_2031132.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD NANCY J. SWICK, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER DC-1221 -17-0008 -W-1 DATE: May 12, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Earl Mitchell , Trafford, Pennsylvania, for the appellant. Anette H. Veldhuyzen , Esquire, Fort Belvoir, Virginia, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction her request for corrective action in an 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 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 statute or regulation or the erroneous a pplication of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulati ons, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, w e DENY the petition for review e xcept as expressly MODIFIED by this Final Order to find that the appellant was a permanent employee , but did not make a nonfrivolous allegation that h er resignation was involuntary, and did not prove that she exhaus ted administrative remedies before the Office of Special Counsel (OSC), and we AFFIRM the initial decision. BACKGROUND ¶2 Effective November 28, 2011, the agency appointed the appellant by reinstatement to a competitive -service position as a Nurse at the Fort Belvoir Community Hospital. Initial Appeal File (IAF), Tab 11 at 53. The position was subject to completing a 1-year probationary period beginning on the date of her appointment. Id. On December 13, 2012, the appellant’s supervisor issued the appe llant a memorandum detailing four complaints she had received about the appellant, and she informed the appellant that she was pursuing disciplinary action and would implement a performance improvement plan (PIP) as soon as possible .2 IAF, Tab 6 at 85 -86. On December 26, 2012 , the appellant submitted a letter of resignation, effective January 4, 2013. IAF, Tab 11 at 51 , Tab 13 at 14 . 2 The memorandum at issue is dated December 18, 2012; however, the appellant alleges that her supervisor provided the memorandum to her on December 13, 2012, which the agency does not dispute. IAF, Tab 6 at 10, 85 -86; Petition for Review File, Tab 4 at 6. 3 ¶3 On Fe bruary 11, 2016, the appellant filed a complaint with OSC in which she alleged that the agency had committed 18 prohibited personnel practices . IAF, Tab 6 at 21 -67. The alleged prohibited personnel practices included allegations that the agency had failed to provide the appellant with a performance plan and rating , issued a December 13, 2012 memorandum threatening to place her on a PIP and pursue disciplinary action against her, reassigned her patients and placed her on administrative duties, illegitimately renewed her nursing credentials , provided inaccurate information to an investigator with the Commonwealth of Virginia Board of Nursing , and ordered her to undergo a psychiatric examination . Id. at 26, 30 -32. The appellant also alleged that she had suffered a constructive discharge . Id. at 32 . ¶4 By letter dated June 29, 2016, the OSC Complaints Examining Unit n otified the appellant that it had made a preliminary determination to close its inquiry into her complaint and provided her with an opportunity to respond within 13 days of the date of the letter. Id. at 19 -20. On July 27, 2016, the appellant’s represent ative provided OSC with a declaration from the appellant and additional documentation referenced in the declaration in support of her request for OSC to reverse its preliminary determination. Id. at 69-84. By letter dated August 30, 2016, the Complaints Examining Unit notified the appellant th at it had received her July 27, 2016 response and had made a final determination to close its file. Id. at 18. ¶5 On October 4, 2016, the appellant filed this IRA appeal alleging that the agency’s prohibited personnel practices caused her to resign, and thus she was subjected to an involuntary removal. IAF, Tab 1 at 5-17. She requested a hearing. Id. at 2. The administrative judge issued an order notifying the appellant of the elements and burdens of proof , and dire cting her to file evidence and argument, to establish Board jurisdiction over her IRA appeal . IAF, Tab 3 at 2-7. The appellant filed a response to the order in which she alleged that the agency perceived her as a whistleblower because she was “about to d ivulge acts 4 pertaining to 5 U.S.C. § 2302 (b)” and that agency management viewed her continued presence in her position as a threat because they feared that she might reveal to upper -level managemen t the alleged prohibited personnel practices they had committed. IAF, Tab 10 at 5 -19. She also alleged that the agency likely believed she knew about the alleged prohibited personnel practices when she stated during a December 13, 2012 counseling session that she would resign and did not return to work or respond to attempts to contact her after that date . Id. at 19. Finally, the appellant alleged that the agency had abused its authority by requir ing that she work under illegal conditions and unachievable standards, or be fired, and she had no choice but to resign. Id. at 18 . The agency moved to dismiss the appeal for lack of juri sdiction on the grounds that the appellant had failed to nonfrivolo usly allege that she made a protected disclosure , engaged in protected activity, or that the agency perceived her as having made protected disclosures, and th at she had failed to nonfrivolously allege that her resignation was involuntary . IAF, Tab 13 at 9 -12. ¶6 The administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction based on the written record. IAF, Tab 14, Initial Decision (ID). The administrative judge first found that the appellant resigned during her probation ary period, and thus she was not an employee under 5 U.S.C. § 7511 and so she lacked standing to pursue an involuntary resignation appeal . ID at 2 -3. The administrative judge then considered the appellant’s claims to the extent they alleged that the involuntary resignation and other events she identified were taken against her in retaliation for whistleblowing activity. ID at 3-9. The administrative judge assumed for the purposes of determining jurisdiction that the appellant had exhausted her administrative remedies before OSC, but he found that the appellant did not present a nonfrivolous allegation that she made a protected disclosur e, engaged in protected activity, or was perceived as a whistleblower, and thus the Board lacked jurisdiction over her IRA appeal . Id. 5 ¶7 The appellant has filed a petition for review in which she argues that the administrative judge erred in finding that she was a probationary employee and that she did not make a nonfrivolous allegation that she was perceived as a whistleblower. She further asserts that she has made a nonfrivolous allegation that her resignation was the product of misinformation and coerc ion. Petition for Review (PFR) File, Tab 1. The agency has responded in opposition to the petition. PFR File, Tab 4. As set forth below, we find that the appellant was a tenured employee at the time of her resignation, but she has not made a nonfrivolo us allegation that he r resignation was involuntary. We also find that the administrative judge properly concluded that the appellant did not make a nonfrivolous allegation that she made a protected disclosure, engaged in protected activity, or was perceiv ed as a whistleblower; moreover, we find that the appellant failed to exhaust her administrative remedies concerning her claim that she was perceived as a whistleblower. DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge erred in finding that the a ppellant was a probationary employee. ¶8 On review, the appellant asserts that the administrative judge erred in finding that she was terminated during her probationary period , and thus lacked standing to pursue her claim of an involuntary resignation, becaus e she had completed 1 year of current, continuous service. PFR File, Tab 1 at 11 -12. The agency has not disputed the appellant’s assertion. PFR File, Tab 4. The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). To qualify as an “emplo yee” with appeal rights under 5 U.S.C. chapter 75, an individual in the competitive service, such as the appellant, must show that she either is not serving a probationary or trial pe riod 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. 6 5 U.S.C. § 7511 (a)(1)(A); Dodson v. Department of the Navy , 111 M.S.P.R. 504, ¶ 4 (2009) . The Standard Form 50 appointing the appellant to th e Nurse position dicta ted that s he was to complete a 1 -year probationary period beginning on November 28, 2011. IAF, Tab 11 at 53. The appellant served continuously under this appointment until January 4, 2013, when she resigned . IAF, Tab 11 at 51, Tab 13 at 14 . When she resigned , the appellant had completed her 1 -year probationary period and had completed 1 yea r of current, continuous service in a permanent position .3 Id. Accordingly, we find that the appellant was an employee within the meaning of 5 U.S.C. chapter 75 a nd had standing to challenge her alleged involuntary resignation. The appellant has not made a nonfrivolous allegation of Board jurisdiction over her involuntary resignation claim. ¶9 On review, the appellant argues that her resignation was involuntary because the agency threatened her with placement on a PIP and a disciplinary action , both of which could not be subs tantiated. PFR File, Tab 1 at 5 -11. Below , the administrative judge observed that the appellant had raised a claim that her resignation was involuntary but found that the appellant lacked standing to pursue the claim and did not address it further. ID at 2 -3. The administrative judge did not notify the appellant of her bu rden of proof and the elements to make a nonfrivolous allegation that her removal was involuntary; however, this error 3 In this case, the agency appointed the appellant by reinstatement to a competitive -service position. IAF, Tab 11 at 53. The appellant would not be required to serve a probationary period under h er most recent appointment if she was reinstated pursuant to 5 C.F.R. § 315.401 and “during any period of service which affords a current basis for reinstatement, [she] completed a probat ionary period or served with competitive status under an appointment which did not require a probationary period.” 5 C.F.R. § 315.801 (a)(2); Dodson , 111 M.S.P.R. 504 , ¶ 9. Although the appellant previously may have completed such a period of service, she has not provided proof of it. However, we need not ascertain whether she completed such a period of service because we find that she completed both her 1 -year probationary period and 1 year of current, continuous service under the appointment at issue and is thus an employee with appeal rights. 7 was not prejudicial to the appella nt’s substantive rights because the agency’s jurisdictional response was sufficient to place the appell ant on notice of the elements and burdens of proof of such a claim so as to afford her the opportunity to meet her burden for the first time on review . IAF, Tab 13 at 11; see Yost v. Department of Health and Human Services , 85 M.S.P.R. 273 , 277 (2000) (holding that the administrative judge’s failure to properly inform an appellant of the Board’s jurisdictio nal requireme nts may not be prejudicial when the appellant is put on notice by the agency’s motion to dismiss of what he must allege to establish jurisdiction), aff’d , 4 F. App’x 900 (Fed. Cir. 2001). Accordingly, we address the appellant’s argument that her resignation was involuntary but find that she has not made a nonfrivolous allegation that the Board has jurisdiction over the action . ¶10 An employee -initiated action, such as a resignation, is presumed to be voluntary and thus outside the Board’s jurisd iction . Searcy v. Department of Commerce , 114 M.S.P.R. 281 , ¶ 12 (2010). An involuntary resignation, however, is tantamount to a re moval and is thus within the Board’s jurisdiction. Adams v. U.S. Postal Service , 108 M.S.P.R. 250 , ¶ 9 (2008) , aff’d , 309 F. App’x 413 (Fed. Cir. 2009) . An appellant may overcome the presumption of voluntariness by presenting sufficient evidence to establish that the action was obtained through duress or coercion or show that a reasonable person would have been misled by the agency . Searcy , 114 M.S.P.R. 281 , ¶ 12. ¶11 If an appellant makes a nonfrivolous allegation casting doubt on the presumption of voluntariness , she is entitled to a hearing at which she must prove jurisdiction by a preponderance of the evidence. Garcia v. Department of Homeland Security , 437 F.3d 1322 , 1344 (Fed. Cir. 2006) (en banc). To meet the nonfrivolous standard, an appellant need only plead allegations of fact that, if proven, could show jurisdiction. Pariseau v. Department of the Air Force , 113 M.S.P.R. 370 , ¶ 14 (2010). Mere pro forma allegations are insufficient to meet the standard . Id. In determining whether the appellant has made a 8 nonfrivolous allegation, the administrative judge may consider the agency’s documentary submissions. Id. However, to the extent that the agency’s evidence constitutes mere factual contradiction of the appellant’s otherwise adequate prima facie showing of jurisdictio n, the administrative judge may not weigh evidence and resolve conflicting assertions of the parties, and the agency’s evidence may not be dispositive. Id. ¶12 On review, the appellant contends that her supervisor misinformed her when she threatened the appel lant in the December 13, 2012 memorandum and accompanying meeting with a PIP and disciplinary action that could not be substantiated, and she resigned to avoid the threatened PIP and disciplinary action. PFR File, Tab 1 at 5-11. Although the appellant’s argument appears to be premised on allegations of coercion rather than misinformation, to the extent she intended to allege that her resignation was the result of the agency’s misinformation, we find that the appellant has n ot made a nonfrivolous allegation that her resignation was involuntary due to misinformation. An appellant who claims that an involuntary action resulted from misinformation must show that the agency made misleading statements, and that she reasonably rel ied on the misinformation to her detriment. Aldridge v. Department of Agriculture , 111 M.S.P.R. 670 , ¶ 8 (2009). The appellan t need not show that the agency was intentionally misleading. Id. However, an agency is required to provide accurate information to permit the appellant to make an informed, and thus voluntary, decision regarding resignation. Id. ¶13 Although the appellan t argues that the threatened PIP and disciplinary action could not be substantiated, she has not alleged that the factual information provided to her by her supervisor in the December 13, 2012 meeting and memorandum was inaccurate. PFR File, Tab 1 at 5 -11. Specifically, the appellant has not alleged that the agency threatened to place her on a PIP and with disciplinary action but did not in fact intend to take either of the actions. Id. The appellant contends that she did not have an opportunity to exam ine or 9 challenge the complai nts contained in the December 13 , 2012 memorandum, but she does not allege that the complaints are inaccurate. Id. We thus conclude that the appellant has not made a nonfrivolous allegation that the agency made misleading stat ements that led to her purportedly involuntary resignation . ¶14 The appellant’s argument that the agency threatened her with a PIP and a disciplinary action that could not be substantiated, which we interpret to allege that the agency coerced her resignation , is also unpersuasive. To establish involuntariness on the basis of coercion, an employee must show that the agency effectively imposed the terms of her resignation , she had no realistic alternative but to resign , and her resignation was the result of im proper acts by the agency. Brown v. U.S. Postal Service , 115 M.S.P.R. 609 , ¶ 10, aff’d , 469 F. App’x 852 (Fed. Cir. 2011). If an employee’s working conditions are so intolerable that she is forced to resign , her resignation is involuntary and constitutes a constructive removal. Id. Thus, the Board must determine whether, considering the totality of the circumstances, the employee ’s working conditions were made so difficult that a reasonable person in her position would have felt compelled to resign. Id. ¶15 An appellant may show that a resignation was based on coercion when the resignation is induced by a threat to take an adverse or performance -based action that the agency knows could not be substantiated or when the agency takes steps against an employee “not for any legitimate agency purpose but simply to force the employee to quit.” Staats v. U.S. Postal Service , 99 F.3d 1120 , 1124 (Fed. Cir. 1996) (holding that an example of an involuntary resignation based on coercion is a resignation induced by a threat to take disciplinary action that the agency knows could not be substantiated) ; Barthel v. Department of the Army , 38 M.S.P.R. 245, 251 (1988) (holding that , if the appellant could show that the agency knew tha t the reasons for the proposed 5 U.S.C. c hapter 43 removal could not be substantiated, the proposed action would be purely coercive and would 10 render his resulting retirement involuntary).4 However, the doctrine of coerced involuntariness is “a narrow one.” Staats , 99 F.3d at 1124. It does not apply if the employee resigns because [s]he “does not want to accept [measures] that the agency is authorized to adopt, even if those measures make continuation in the job so unpleasant . . . that [s]he feels that [s]he has no realistic option but to leave.” Id. Likewise, “the fact t hat an employee is faced with an unpleasant situation or that h[er] choice is limited to two unattra ctive options does not make [her] decision any less voluntary.” Id. ¶16 Here, the agency’s December 13, 2012 memorandum informed the appellant of four complaints lodged against her about her patient ca re during November and December 2012 and informed her that disciplinary action and a PIP would be forthcoming. IAF, Tab 6 at 85 -86. The appellant does n ot assert that the agency proposed any disciplinary action or issued her a PIP prior to her resignation . Although a PIP is a precursor to a performance -based action, it is not itself a performance -based action.5 See 5 C.F.R. § 432.104 (providing that if an 4 We recognize that the agency never proposed a separation action against the appellant, but it is reasonable to conclude that, in light of the discussion of a potential PIP, any such action could have been proposed pursuant to chapter 43. See 5 C.F.R. §§ 432.104 , 432.105. In the past, the Board has held that there is no requirement that an agency establish the unacceptability of pre -PIP performance in analyzing a performance -based action under chapter 43. See, e.g. , Thompson v. Department of the Navy , 89 M.S.P.R. 188, ¶ 19 (2001). However, in Santos v. National Aeronautics and Space Administration , 990 F.3d 1355 , 1360 -61 (Fed. Cir. 2021), the U.S. Court of Appeals for the Federal Circuit held that, to support an advers e action under chapter 43, an agency “must justify institution of a PIP” by showing that the employee’s performance was unacceptable before the PIP. We emphasize that, here, the issue before the Board is not whether the agency could substantiate a potenti al chapter 43 action, but, rather, whether the appellant nonfrivolously alleged that her resignation was involuntary. Thus, as set forth above, the appellant’s allegation that any proposed PIP could not be substantiated should be and is considered here on ly as it relates to the issue of voluntariness. As explained above in greater detail, we find that the appellant’s allegations concerning the justifications for a potential PIP do not amount to a nonfrivolous allegation that her resignation was involuntar y. See infra ¶¶ 17 -20. 5 The appellant asserts that Gonzales v. Department of Housing and Urban Development , 64 M.S.P.R. 314 (1994), supp orts her contention that the threat to place 11 employee’s performance is determined to be unacceptable in one or more critical elements, the agency shall , inter alia, notify the employee that unless her performance in the critical elements im proves and is sustained at an acceptable level, she may be reduced in grade or removed , and provide her with a reasonable opportunity to demonstrate acceptable performance ); see also Shores v. Department of the Air Force , 4 F. App’x 911, 913 (Fed. Cir. 2001) (nonprecedential) (explaining that the threat of a PIP would not s upport a finding of coercion because it is not itself a disciplinary action) .6 Becaus e the agency did not propose an adverse or performance -based action at the time of the appellant’s resignation, and because we are not adjudicating a chapter 43 action, we need not determine whether any such action could be substantiated . See supra ¶ 15 n.4. ¶17 Nevertheless, we have considered whether the totality of the circumstances surroun ding the appellant’s resignation would support a finding that the agency coerced her resignation , including whether the agency took any actions without a legitimate purpose to force her to quit. See Staats , 99 F.3d at 1124. Below, the appellant contended that her resignation was based solely on her supervisor’s threats during their meeting on December 13, 2012. IAF, Tab 10 at 15 -16. The appellant alleged that on that date , in addit ion to her supervisor’s issuing the memorandum threatening disciplinary a ction and a PIP, her supervisor gave her a performance plan with absolute standards . Id. at 15. Additionally, the appellant alleged that at the end of the meeting , she asked her supervisor “if she was going to be fired” and her supervisor said, “[Y]es, if you keep making mistakes.” Id. at 53. The a ppellant then informed her supervisor that she was resigning ; her her on a PIP was tantamount to threatening an adverse action; however, Gonzales addresses whether a PIP is a personnel action within the meaning of 5 U.S.C . § 2302 (a)(2)(A), not whether it is an action within the meaning of 5 U.S.C. chapters 43 or 75. Gonzales , 64 M.S.P.R. at 319. 6 The Board may follow a nonprecedential decision of the Federal Circuit when, as here, it finds its reasoning persuasive. Morris v. Department of the Navy , 123 M.S.P.R. 662 , ¶ 13 n.9 (2016 ). 12 supervisor replied , “Well, why don’t you think about it, and stick around at least during the holidays.” Id. at 15, 53. ¶18 The appellant contends that the agency could not threaten to place her on a PIP because it did not place her on performance standards during her probationary period , and she did not rece ive an annual performance rating . PFR File, Tab 1 at 7-8. It is true that i f an agency determines an employee’s performance to be unacceptable in one or more critical elements, it must notify the employee of those critical elements , inform her of the per formance requirements or standards that must be attained to demonstrate acceptable performance in the position, and afford her a reasonable opportunity to dem onstrate performance. See 5 C.F.R. § 432.104 . The appellant submitted evidence that the agency had implement ed performance standards and had evaluated her performance throughout 2012, including a November 2012 performance assessment , and notified her of performance concerns as early as August 2012 . IAF, Tab 7 at 32-43, 52. T he appellant does not contend that these concerns were unwarranted. In the performance plan implemented on December 13, 2012 , portions of the critical elements do appear to contain absolute standards . There is no prohibition against absolute performance standards; rather, performance standards must be reasonable, based on objective criteria, and communicated to the employee in advance. Guillebeau v. Department of the Navy , 362 F.3d 1329 , 1337 (Fed. Cir. 2004) (finding that the applicable statute “does not bar absolute performance standards ”). The appellant does not contend that the performance standa rds in her December 13, 2012 performance plan were unreasonable or subjective , and she acknowledges receiving the plan. IAF, Tab 10 at 15 , Tab 11 at 41 -47. Accordingly, we find that the appellant has not set forth facts that would show that the agency lacked a legitimate basis for notifying her of its intent to place her on a PIP or was otherwise improperly undermining her performance. ¶19 The appellant also contend s that the agency could not substantiate a disciplinary action because she did not have an opportunity to challenge the 13 complaints set forth in the December 13, 2012 memorandum, and imposing disciplinary action requires the results of a per formance appraisal. PFR File, Tab 1 at 8 -11. The agency had not proposed an adverse action against the appellant; therefore, s he was not entitled to challenge the complaints , which she has not alleged are untrue . See 5 U.S.C. § 7513(b) (providing that an employee against whom an action is proposed is entitled to a reasonable time to answer). Additionally, although an employee’s performance may be considered in determining the penalty in an adverse action, there is no requirement that the agency complete a performance appraisal before taking such a n action . See, e.g., Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 (1981) (providing that an employee’s past work record, i ncluding performance on the jo b, is relevant for consideration in determining the appropriateness of a penalty for discipline). Accordingly, we find that the appellant has not set forth facts that could show that the agency acted improperly or that she ha d no choice but to resign in the face of the forthcoming action . ¶20 Further, during the meeting between the appellant and her supervisor, although the supervisor stated that the appellant’s removal was a future possibility, she also indicated that the appel lant had the opportunity to improve her performance and avoid such an action. IAF, Tab 10 at 53. Additionally, when the appellant informed her supervisor that she int ended to resign, her supervisor asked her to take additional time to consider her decisi on and to continue working while she mulled over that decision . Id. at 15 , 53. Although the conversation was undoubtedly an unpleasant one, there is no indication that the appellant had no alternative but to resign . Instead of resigning based on speculation that she would be removed, the appellant could have contested an action she thought was invalid if it occurred.7 See Brown , 115 M.S.P.R. 609 , ¶ 15 7 Moreover, there is no indication that the appellant was under an unreasonable time constraint in deciding whether to resign. An appellant’s decision to resign may be considered involuntary if she did not have sufficient time to reflect about her alternative 14 (finding the appellant’s claims that she was apprehensive of the agency taking a disciplinary action against her after she stopped reporting to work to be insufficient to find that her retirement was involuntary, as she had th e optio n to contest a future action). In considering the totality of the circumstances surrounding the appellant’s resignation , we find that she has not set forth facts that could show that a reasonable person would have felt compelled to resign. See, e. g., Baldwin v. Department of Veterans Affairs , 109 M.S.P.R. 392 , ¶¶ 19-20 (2008) (explaining that allegations of being assigned to onerous tasks, being unjustifiably threatened with discipline, and being subjected to unnecessary investigations did not suffice to make a nonfrivolous allegation of jurisdiction over an involuntary resignation based on coercion ). ¶21 Finally, in considering the appellant’s resignation , we have reviewed her allegations that the agency retaliated against her by failing to provide her with a performance plan and rating, by issuing the December 13, 2012 memorandum threatening to pursue disciplinar y action against her and place her on a PIP, by reassigning her patients and auditing her patient chart s, and by ordering her to undergo a psychiatric examination, because it perceived her as a whistleblower. PFR File, Tab 1 at 13 -16. Whe n an appellant r aises allegations of reprisal for whistleblowing activity in connection with a constructive removal claim, evidence of reprisal goes to the ultimate question of coercion. Coufal v. Department of Justice , 98 M.S.P.R. 31 , ¶ 24 (2004) . As set forth below, we affirm the administrative judge’s finding that there is no evidence that the appellant made protected disclosures, engaged i n protected activity, or was course of action before she was required to make her decis ion. See Soler -Minardo v. Department of Defense , 92 M.S.P.R. 100 , ¶¶ 7, 9 -10 (2002) (finding that the appellant was not under “extreme time pressure” when she accepted a demotion 10 days after the agency proposed the demotion). Here, th e absence of a pending adverse action and the appellant’s supervisor’s urging the a ppellant to take additional time to consider her decision indicate that the appellant did not make her decision under an unreasonable time constraint and thus does not suggest the appellant felt compelled to resign. IAF, Tab 10 at 15, 53. 15 perceived as a whistleblower ; thus, we do not find that retaliation played a role in the appellant’s resignation . Accordingly, we conclude that the appellant has not made nonfrivolous allegations that cast doubt on the voluntariness of her resignation ; therefore , the Board lacks jurisdiction over her resignation. We now turn to her IRA appeal.8 The appellant did not exhaust her administrative remed ies before OSC concerning her claim of whistleblower reprisal . ¶22 On review, the appellant a ppears to argue that she established the Board’s jurisdiction over her IRA appeal because she disclosed prohibited personnel practices in her OSC complaint and exhaust ed her administrative remedies before OSC regarding two actions that constituted reprisal for whistleblowing: the agency’s order that she complete a psychiatric exam and failure to provide her with performance standards and a rating during her probationar y period . PFR File, Tab 1 at 12 -13. She also argues for the first time on review that she was perceived as a whistleblower because one of her supervisors knew that the agency’s human resources department w ould ask the appellant whether s he was provided w ith a perfor mance plan and appraisal, and at that time, “the appellant would disclose all that she knew regarding the matter[.]” Id. at 13 -14. ¶23 To establish Board jurisdiction over an IRA appeal brought pursuant to the Whistleblower Protection Enhancemen t Act of 2012 (WPEA), the appellant must exhaust her administrative remedies before OSC and make nonfrivolous 8 The appellan t filed her OSC complaint on February 11, 2016 , before filing her October 4, 2016 Board appeal. A n appellant generally is limited to filing a Board appeal, a grievance, or a complaint wi th OSC under 5 U.S.C. § 7121 (g). H owever, an appellant’s election is only binding if it was knowing and informed. Agoranos v. Department of Justice , 119 M.S.P.R. 498 , ¶ 16 (2013). Here, the appellant was not advised that contesting her alleged constructive removal in an OSC complaint would preclude a chapter 75 appeal before the Board. See id. , ¶ 18 . Further, if jurisdiction never attache d to the appellant's original choice, then it was not a true choice among viable alternatives and is not binding. Scalera v. Department of the Navy , 102 M.S.P.R. 43, ¶ 9 (2006). Thus, the fact that the appellant filed a complaint with OSC does not preclude her from raising an involuntary resignation claim under chapter 75 . 16 allegations that: (1) she made a protected disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in protected ac tivity as specified in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) ; and (2) the protected disclosure or activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302 (a). 5 U.S.C. §§ 1214 (a)(3), 1221; Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2 016). Jurisdiction in an IRA appeal is determined based on the written record. See Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434 , ¶ 22 (2016) (holding that an employee is not entitled to a jurisdict ional hearing in an IRA appeal). ¶24 The Board’s jurisdictional inquiry generally begins by examining whether the appellant has shown that she exhausted her administra tive remedies before OSC, as the Board’s jurisdiction over an IRA appeal is limited to those issues raised before OSC. See Miller v. Federal Deposit Insurance Corporation , 122 M.S.P.R. 3 , ¶ 6 (2014) (“The first element of Board jurisdiction over an IRA appeal is exhaustion by the appellant of his administrative remedies before OSC”), aff’d , 626 F. App’x 261 (Fed. Cir. 2015). Under 5 U.S.C. § 1214 (a)(3), an appellant must seek corrective action from OSC before seeking corrective action from the Board in an IRA appeal. Id., ¶ 6. To satisfy the exh austion requirement of 5 U.S.C. § 1214 (a)(3), an appellant must provide OSC with a sufficient basis to pursue an investigation. Chambers v. Department of Homeland Security , 2022 MSPB 8 , ¶¶ 10 -11.9 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 exhau stion through their initial OSC complaint; evidence that they amended 9 The WPEA, which became effective on December 27, 2012, doe s not affect the relevant holding in the cited authority, nor does it affect the relevant holdings in the other authorities cited herein that were issued prior to the effective date of the WPEA. See Pub. L. No. 112 -199, 126 Stat. 1465 (2012). 17 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 refere ncing 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. ¶25 Here, the administrative ju dge observed that the appellant had not provided a copy of OSC’s notice that it had closed its inquiry, and he assumed that the appellant had exhausted her administrative remedies before OSC and proceeded to find that the appellant did not make a nonfrivol ous allegation that she was perceived as a whistleblower , made a protected disclosure, or engaged in protected activity . ID at 6 -9. However, the appellant submitted a copy of her OSC complaint and supporting documentation, a supplemental declaration subm itted to OSC in support of her complaint, and OSC’s August 30, 2016 letter closing its file regarding her complaint; accordingly, we believe there was sufficient information to consider whether the appellant exhausted her administrative remedies before OSC . IAF, Tab 6 at 18 -84. ¶26 We find that the appellant did not exhaust her administrative remedies because she did not allege whistleblower reprisal before OSC . The appellant completed the section of OSC Form 11 pertaining to prohibited personnel practices but did not complete the section pertaining to whistleblower reprisal. IAF, Tab 6 at 23 -49. The letter from the appellan t’s representative referenced 5 U.S.C. § 2302 (b)(1) and (12) , which prohibit an employee who has the authority to take, or direct others to take, recommend, or approve any personnel action, from discriminating against an employee or applicant for employment, or from taking, or failing to take, a personnel action if it violates any law, rule, or regulation implementing or directly concerning merit systems principles, respectively. Id. at 21 -22. In her complaint, the appellant only alleged that the agency discriminated against her on the basis of her disability and failed to 18 manage her performance in violation of multiple Army regulations, Federal regulations, and statutes. Id. at 23 -49. She did not allege in her complaint or supplemental correspondence with OSC that the agency had retaliated against her for whistl eblowing. Id. at 23 -84. Therefore, we find that the appellant did not prove that she exhausted her administrative remedies before OSC concerning her allegations of whistleblower reprisal . See Finston v. Health Care Financing Administration , 83 M.S.P.R. 100 , ¶ 9 (1999) (holding that the appellant’s OSC complaint did not give OSC a sufficient basis on which to pursue an investigatio n into a whistleblowing claim when his submissions to OSC did not mention whistleblowing or other related terms, and he asked OSC to investigate an alleged violation of 5 U.S.C. § 2302 (b)(4)). ¶27 In addition to her failure to raise a claim of whistleblower reprisal, the appellant did not allege any other facts that would give OSC a sufficient basis to pursue an investigation on the basis that the agency retaliated against her because an agency officia l perceived her as a whistleblower. An individual who is perceived as a whistleblower is still entitled to the protections of the Whistleblower Protection Act , even if she has not made protected disclosures. Jensen v. Department of Agriculture , 104 M.S.P.R. 379 , ¶ 11 n.3 (2007 ). While portions of the analysis in such a case differ from a case in which the appellant actually m ade a disclosure, the appellant must still establish that she exhausted her remedies with OSC on the issue of whether the agency perceived her as a whistleblower. Coufal , 98 M.S.P.R. 31, ¶ 18. Here, the appellant did not allege in her OSC complaint or supplemental correspondence with OSC that any agency official perceived her as a whistleblower, nor did she allege facts that wo uld give OSC a sufficient basis to pursue an investigation on this ground. IAF, Tab 6 at 23-84. At most, the appellant alleged before OSC that her supervisors covered up their mismanagement of her performance because they feared “reprisal” from their supervisors, but at no time did she allege that agency management viewed her as a potential source of a disclosure of this alleged mismanagement or 19 otherwise perceived her as a whistleblower . Id. at 33 . Accordingly, we find that she did not exhaust administrative remedies before OSC with respect to her claim that the agency perceived her as a whistleblower. See Coufal , 98 M.S.P.R. 31 , ¶ 18 (finding that the Board lacked jurisdiction to consider the appellant’s argument that she was perceived as a whistleblower because she did not raise this argument in her complaint before OSC). The administrative j udge properly found that the appellant did not make a nonfrivolous allegation that she was perceived as a whistleblower, made a protected disclosure, or engaged in protected activity. ¶28 Although we find that the appellant failed to exhaust administrative remedies before OSC, had she met the exhaustion requirement, the administrative judge nevertheless properly found that the appellant did not make a nonfrivolous allegation that she was perceived as a whistleblower, made a protected disclosure, or engaged in p rotected activity. ID at 6 -9. The appellant filed her OSC complaint well after she resigned from her position and did not allege that she made any disclosures during her employment with the agency. IAF, Tab 6 at 21-68. Rather , the appellant alleged throughout her jurisdictional response that she was perceived as a whistleblower because she was “about to divu lge acts pertaining to 5 U.S.C. § 2302 (b)” and her supervisors feared that she would reveal their alleged prohibited personnel practices to upper management. IAF, Tab 10 at 5 -19. The B oard has found that a variety of fact patterns can support a finding that an individual was perceived as a whistleblower. King v. Department of the Army , 116 M.S.P.R. 689 , ¶ 7 (2011) . The appellant in the instant case appears to argue that certain agency officials believed that she made or intended to make disclosures that evidenced the type of wrongdoing set forth under 5 U.S.C. § 2302 (b)(8). See Mausser v. Department of the Army , 63 M.S.P.R. 41 , 44 (1994) (finding that the appellant may have been perceived as a whistleblower because the agency knew about his list of “waste, fraud, and 20 abuse,” “safety issues,” and vi olations of “government regulations ,” and of his intention to disclose the list ). ¶29 During the pendency of her appeal below, the appellant did not identify a particular agency official who believed she engaged in whistleblowing, and she did not provide an y facts to support her allegation that her managers were afraid that she would disclose their alleged prohibited personnel practices. IAF, Tab 10 at 5-20. For the first time on review, she alleges that a specific supervisor knew that on November 28, 2012 , the date on which her probationary period would end , the human resources department would ask the appellant whether she had been provided performance standards and her annual appraisal , and that she then would disclose “all that she knew regarding the matt er.” PFR File, Tab 1 at 13-14. However, the appellant’s claim fails because she alleged below that the human resources department did not ask about her rating and performance plan on the date in question . In addition, she provides no other facts to support her speculation that her supervisor may have believed that the human resources department would ask the appellant about her performance standards and appraisal on the date in question, or that the appellant would have intended to disclose her lack of performance standards and an appraisal to the human resources department . IAF, Tab 10 at 12 -13. ¶30 The administrative judge also considered whether the appellant’s continued presence in her position could constitute a protected activity, and we agree th at the appellant failed to make a nonfrivolous allegation that she exercised her right to any appeal, complaint, or grievance right granted by any law, rule, or regulation ; testified or otherwise lawfully assisted an individual in the exercise of such a ri ght; cooperated with or disclosed information to the inspector general of an agency or to OSC; or refused to obey an order that would require her to violate a law, rule, or regulation . ID at 8 ; see 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), (D). Accordingly, we fi nd that the appellant did not m ake a nonfrivolous allegation that the agency perceived her as a whistleblower, or that she made a protected 21 disclosure or engaged in protected activity. We conclude that the Board lacks jurisdiction over the appellant’s request for corrective action in her IRA appeal and affirm the administrative judge’s dismissal of the appeal .10 NOTICE OF APPEAL RIGHTS11 The initial decision, as supplemented by this Final Ord er, 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 off er the following summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whet her a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition fo r review with the U.S. 10 We have re viewed the relevant legislation enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. 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. 22 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, 23 and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, cost s, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review t o the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 24 (3) Judicial review pursua nt to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a pro hibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Cir cuit or any court of appeals of competent jurisdiction.12 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)( B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 12 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 25 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov /probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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/Co urt_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SWICK_NANCY_J_DC_1221_17_0008_W_1_FINAL_ORDER_2031132.pdf	2023-05-12	null	DC-1221	NP
3,156	https://www.mspb.gov/decisions/nonprecedential/ALLEN_BRYAN_DE_315H_18_0006_I_1_REMAND_ORDER_2030493.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BRYAN ALLEN, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency. DOCKET NUMBER DE-315H -18-0006 -I-1 DATE: May 11, 2023 THIS ORDER IS NONPRECEDENTIAL1 Bryan Allen , Yuma, Arizona, pro se. Naomi L. White , Phoenix, Arizona, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member REMAND ORDER ¶1 The appellant has filed a petition for revie w of the ini tial decision, which dismissed his termination appeal for lack of jurisdiction . For the reasons discussed below, we GRANT the appellant’s petition for review , REVERSE the 1 A nonprecedential order is one that the Board h as determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future de cisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.11 7(c). 2 initial decision, and REMAND the case to the field office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 On September 4, 2016 , the agency appointed the appellant to t he position of Clinical Nurse subject to a 1 -year probationary period . Initial Appeal File (IAF), Tab 9 at 13. On Friday, September 1, 2017, the last workday prior to the anniversary of his appointment, it sent a letter to him via its internal email system and by certified , first -class mail advising him of his termination for removing patient health information, failing to timely screen patien ts, and fail ing to enter vital signs into the agency’s electronic health record . Id. at 15-16, 37 -41. The letter was not delivered to his address until September 5, 2017. Id. at 39-41. ¶3 He filed the instant appeal challenging his termination. IAF, Tab 1 . After providing the parties the opportunity to address the jurisdictional issue of whether the appellant was an “employee ” with Board appeal rights and informing him of his jurisdictional burden regarding his claim of retaliation for an alleged protected disclosure , the administrative judge dismissed the appeal for lack of jurisdiction without holding the appellant’s requested hearing . IAF, Tab 2 at 3-6, Tab 8, Tab 10, Initial Decision (ID). Specifically, she found that the appellant failed to nonfrivo lously allege that he was an “employee” with Board a ppeal rights because the agency effected his termination before he completed his probationary period by making a diligent and reasonable effort to serve him with the termination letter on September 1, 201 7. ID at 4 -6. ¶4 The appellant has filed a petition for review challenging the initial decision. He assert s that the agency did not effect his termination before the end of his probationary period because he was on leave on September 1, 2017 , without access to the termination letter through his agency email and so he did not receive notice of the termination until he was verbally notified when he returned to work on September 5, 2017 . Petition for Review (PFR) File, Tab 1 at 3 -4. The agency 3 has respo nded in opposition , alleging that all agency employees can access their Government email from home and that the appellant otherwise received the termination letter through both certified and first -class mail and when he reported to work on September 5, 201 7. PFR File, Tab 3 at 7-8. ¶5 In response, the Board issued a show cause order asking the parties to provide evidence and argument on how the appellant was notified of his termination and how he was able to access this no tification. PFR File, Tab 4 at 2-3. The appellant responded, stating that, although he asked the agency for a copy of the email that included his termination notice , to date, he had not seen any such email from the agency. PFR File, Tab 5 at 4 -5. He also states that, even if he could have accessed his office email account from home, he never received training on how to do so and instead was told that he needed to insert a Personal Identity Verif ication (PIV) card into a computer to access the email. Id. at 5. Further, he has attached statements from two former coworkers indicating that they believed that they were unable to access their Government email from home. Id. at 9-10. ¶6 The agency has responded that it diligently notified the appellant of his termination on September 1, 2017, via certified, first -class mail and by sending him an e mail that he could have accessed through its website . PFR File, Tab 6 at 5-8. It also has attached the declaration of the appellant’s former supervisor in which she stated that she attempted to deli ver the termination notice in person to the appellant from August 30 to September 1, 2017, but that she could not do so because he was absent. Id. at 9-10. She also stated that, on September 1, 2017, she mailed the termination notice . Id. at 10. She noted that, although she is unsure whether she attach ed the termination letter to the email , she notified th e appellant of his termination in the body of the email . Id. She stated that the appellant never responded to the email and that, despite her attempts to do so, she was unable to recover the email. Id. at 10-11. The agency also has attached a 4 document explaining how employees can access their agency email throug h its website. Id. at 12 -18. DISCUSSION OF ARGUMENT S ON REVIEW The agency did not terminate the appellant before his probationary period expired and thus he is an “employee” under 5 U.S.C. chapter 75 . ¶7 To establish Board jurisdiction under 5 U.S.C. chapter 75, an individual must, among other things, show that he satisfies one of the definitions of “employee” in 5 U.S.C. § 7511 (a)(1). 5 U.S.C. § 7513 (d); see Walker v. Department of the Army , 119 M.S.P.R. 391 , ¶ 5 (2013) . For an individual, such as the appellant, who is in the competitive service and has not been appointed subject to 10 U.S.C. § 1599e , this means that he generally must satisfy one of the following requirements : (1) he is not serving a probationary or trial peri od under an initial appointment; or (2) he has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less.2 5 U.S.C. § 7511 (a)(1)(A); see Walker , 119 M.S.P.R. 391, ¶ 5. ¶8 A probationary period ends at the completion of the last d ay of the employee’s tour of duty before his anniversary date. Herring v. Department of Veterans Affairs , 72 M.S.P.R. 96 , 100 (1 996); 5 C.F.R. § 315.804 (b). A “tour of duty” is an employee’s regularly scheduled hours and days of duty. Hardy v. Merit Systems Protection Board , 13 F.3d 1571 , 1573 (Fed. Cir. 1994). For example, when the last workday is a Friday and the anniversary date is the 2 Individuals in the competitive service who do not satisfy either definition may nevertheless have the right to appeal a termination to the Board under 5 C.F.R. § 315.806 . See Walker , 119 M.S.P.R. 391 , ¶ 5. However, the Board’ s jurisdiction over termination appeals under that section is limited to the following situations : (1) the employee was discriminated against on the basis of his marital status; (2) the agency action was based on partisan political reasons; or (3) the age ncy action was based (in whole or part) on pre appointment reasons and the agency did not foll ow the procedures of 5 C.F.R. § 315.805 . Id.; 5 C.F.R. § 315.806 (a)-(c). The appellant has made no such allegations either below or on review. PFR File, Tab 1 at 3 -4; IAF, Tab 1, Tab 8 at 1. 5 following Monday, the agency m ust separate the employee before the end of his tour of duty on Friday. 5 C.F.R. § 315.804 (b). ¶9 Here, the agency appointed the appellant to his position on September 4, 2016. IAF, Tab 9 at 13. Thus, his anniversary date was Monday, September 4, 2017. Accordingly, to effect his termination during his probationary period, the agency was required to terminate him by the end of his scheduled tour of duty on Friday, September 1, 2017. ¶10 When, as here, it is undisputed that the agency’s termination action is based upon conduct occurring after the appellant’s appointment, the agency must notify him “in writing as to why he is being separated and the effective date of the action.” 5 C.F.R. § 315.804 (a). The plain meaning of the regulatory language indicates that the employee is not terminated until he receives such notice because the regulations state that the agency termi nates the employee “by notifying him in writing.” Lavelle v. Department of Transportation , 17 M.S.P.R. 8, 15 (1983) (quoting 5 C.F.R. § 315.804 ), modified on other grounds by Stephen v. Department of the Air Force , 47 M.S.P.R. 672 (1991).3 An agency is not required to actually afford an employee prior notice of its intention to terminate him, so long as it acts diligently and reasonably under the circumstances in attempting to afford him prior notice. Rivera v. Department of Homeland Security , 116 M.S.P.R. 429 , ¶¶ 11–12 (2011); Santillan v. Department of the Air Force , 54 M.S.P.R. 21, 26 (1992). As discussed below, we find that the agency did not act in a diligent or reasonable way when , during the appellant’s absence, it mailed him notice of his termination on its effective date and sent him an email to his agency address when he was on leave. ¶11 The agency sent the appellant notice of his termination by certified mail on Friday, September 1, 2017, the last day of his tour of duty. IAF, Tab 9 at 37 -39. 3 Although Lavelle quotes a previous version of 5 C.F.R. § 315.804 , the current version of the regulation contains the identical language regarding providing employees written notice of their termination. 6 However, he did not receive this notice until September 5, 2017, after his September 4, 2017 anniversary date. Id. at 39 -41. The Board has held, under similar circumstances, that such service, on its own, does not afford the appellant proper notice of the agency’s termination action. See Lavelle , 17 M.S.P.R. at 16 (finding that, because the agency’s termination action was to become effective the same day that it was issued, the agency’s selection of “certified mail, restricted delivery,” was inadequate to ensure prior service). Here, we also find that the certified mail, without more, did not constitute a diligent and reasonable effort to notify the appellant of his termination. ¶12 Furth er, we find that sending the email to the appellant’s agency address does not cure the deficiency in notifying him . In responding to the show cause order, the appellant stated that he was unable to access this email and that, if he were able to do so , he never received training reg arding how to do so. PFR File, Tab 5 at 5. In making this statement , he indicated on the online questionnaire that he was asserting facts from his personal knowledge and declared , under penalty of perjury , that the facts stated in his pleading were true and correct. Id. at 3. A declaration subscribed as true under penalty of perjury, if uncontested, proves the facts it asserts. Woodall v. Federal Energy Regulatory Commission , 30 M.S.P.R. 271 , 273 (1986). Here, the agency asserts that its employees can access their Government email via its website. PFR File, Tab 6 at 7. However, it has not contradicted the appellant’s assertion that, in the event that he had such access, the agency did not train him on how to use the website to access his email . Furthermore, his former coworkers ’ statements that they believed a PIV card was required to access email outside of work support the ap pellant’s assertion . PFR File, Tab 5 at 9 -10. Consequently , we find that, even assuming that the appellant could have accessed his agency email outside of work, the agency did not inform him that he could do so or instruct him on the process for accessin g it. 7 ¶13 Accordingly , we find that the agency’s email to an account that the appellant did not know he could access does not make its efforts reasonable and diligent. Cf. Scull v. Department of Homeland Security , 113 M.S.P.R. 287, ¶¶ 13-14 (2010) (finding that the appellant failed to make a nonfrivolous allegation that he was not terminated when his Federal Career Internship Program appointment expired when, although he was on leave during the last day of his internship, the agency sent copies of the termination notice to his email and to his residence via overnight and certified mail and his third -line supervisor left voicemail messag es on his G overnment and personal c ellular phones informing him that his position was not being converted ). Because the agency did not act reasonably and diligently to notify the appellant of his termination and failed to terminate him before the end of h is probationary period, we find that he is an “employee” with Board appeal rights under 5 U.S.C. § 7511 (a)(1)(A)(ii). We must reverse the agency’s action because the appellant filed a timely appeal and the agency violated his due process rights by failing to comply with the procedures outlined in 5 U.S.C. § 7701 . ¶14 Because the appellant is an “employee” with Board appeal rights and he was subjected to an appealable removal action pursuant to 5 U.S.C. § 7512 (1), he was required to file his Board appeal no late r than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of his receipt of the agency’ s decision, whichever is later . 5 C.F.R. § 1201.22 (b)(1). Here, the appellant received the agency’s decision on September 5, 2017 , and filed his appeal on September 29, 2017. IAF, Tab 1, Tab 9 at 37 -41. Thus, he timely filed his appeal fewer than 30 days after receiving the agency’s decision . ¶15 Further, th e agency failed to provide the appellant minimum due process, thus requiring reversal of the action. An agency’s failure to provide a tenured public employee with an opportunity to present a response, either in person or in writing, to an appealable agenc y action that deprives him of his property right in his employment constitutes an abridgement of his constitutional right to minimum 8 due process of law, i.e., prior notice and an opportunity to respond. Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 546 (1985). Here, the agency issued the termination notice, effective immediately, and did not provide the appellant an opportunity to res pond . IAF, Tab 9 at 15 -17. Therefore, the agency’s procedures for effecting the separation did not comport with a tenured employee’s constitutional right to minimum due process o f law . See Claiborne v. Department of Veterans Affairs , 118 M.S.P.R. 491 , ¶ 8 (2012). Accordingly, the agency’s removal action must be reversed. See Samble v. Department of Defense , 98 M.S.P.R. 502 , ¶ 14 (2005). We remand the appeal for adjudication of the appellant’s claim of whistleblower reprisal . ¶16 Below, the a ppellant asserted that the agency was retaliating against him for reporting that it did not treat a patient who was HIV positive. IAF, Tab 1 at 5. Because he has asserted a claim of whistleblower re prisal , he may be entitled to relief in addition to reve rsal of the agency’s decision. 5 U.S.C. § 1221 (g); see Samble , 98 M.S.P.R. 502, ¶ 15.4 Accordingly, this claim is not moot and he is entitled to its adjudication. 5 U.S.C. § 7701 ; see Samble , 98 M.S.P.R. 502 , ¶ 16. Thus, we remand the appeal for a hearing and adjudication on the merits of his affirmative defense of whistleblower re prisal . See Samble , 98 M.S.P.R. 502 , ¶ 16. ORDER ¶17 For the reasons discussed above, we remand this case to the field office for further adjudication in accordance with this Remand Order. ¶18 Pending a final decision on the appellant’s claim of whistleblower reprisal, we ORDER the agency to restore the appellant to duty, effective September 1, 2017 . See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 4 The Board issued Samble before the passage of the Whistleblower Protection Enhancement Act of 2012 and before subsequent amendments to the Whistleblower Protection Act. However, these changes in the law do not affect the relevant holding. 9 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶19 We also ORDER the agency to pay the appellant the correct amount of bac k 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. ¶20 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶21 No later than 30 days afte r 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 carr y out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board ’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182 (a). ¶22 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and a djustments 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 10 Board’s decision in accordance with the attached lists so that payment can be made within the 60 -day period set forth above. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805 . Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. 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 noti fied to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside ea rnings documentation. Include record of all amounts earned by the employee in a job undertaken during the back pay period to replace federal employment. Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CH ECKLIST 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 cou rts. 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations mu st be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemploy ment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1 -7 above. The following informati on must be included on AD -343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a. Must provide same data as in 2, a -g above. b. Prior to conversion computation must be provided. c. Lump Sum amount of Settlement, and if taxable or non -taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504 -255-4630.	ALLEN_BRYAN_DE_315H_18_0006_I_1_REMAND_ORDER_2030493.pdf	2023-05-11	null	DE-315H	NP
3,157	https://www.mspb.gov/decisions/nonprecedential/VENTURA_ALBERTO_AT_0752_19_0197_I_1_FINAL_ORDER_2030160.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ALBERTO VENTURA, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER AT-0752 -19-0197 -I-1 DATE: May 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jennifer Duke , Esquire , Atlanta, Georgia, for the appellant. Amanda Uwaibi and Megan B. Shelton , Esquire, Fort Rucker, Alabama, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has petitioned for review of the initial decision in this appeal. For the reasons set forth below, we DISMISS the appeal as settled. ¶2 After the filing of the petition for review, the parties submitted a document entitled “SETTLEMENT AGREEMENT ,” which was executed by the appellant 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 on April 3, 2023, and by the agency on April 4, 2023 . Petition for Review (PFR) File, Tab 7 at 4 -8. The document provides, among other things, for the withdrawal of the appeal with prejudice . Id. at 4-5. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board . See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146, 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it. See Delorme v. Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017) . ¶4 Here, we find that the parties have entered into a settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforcement by the Board. PFR File, Tab 7 at 4, 7. Accordingly, we find that dismissing the petition for revie w 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 in to the record for enforcement purposes. ¶5 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS If the agency or the appellant has not fully carried out the terms of the agreement, either party may ask the Board to enforce the settlement agreement by promptly filing a petition for enforcement with the office that issued the initial decision on this appeal. The petition should contain specific reasons why the petitioning party believes that the terms of the settlement agreement have not 3 been fully carried out, and should include the dates and results of any communications between the parties. 5 C.F.R. § 1201.182 (a). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and req uirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final B oard order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the not ice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Pl ace, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calend ar days after your representative receives this decision. If the action involves a claim of discrimination based on 5 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer an d to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no c hallenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial revie w either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relev ance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals f or the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The original statutory provision that provided for judicial review of certain whistleblower claims by a ny court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided b y any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	VENTURA_ALBERTO_AT_0752_19_0197_I_1_FINAL_ORDER_2030160.pdf	2023-05-10	null	AT-0752	NP
3,158	https://www.mspb.gov/decisions/nonprecedential/CLICK_GENE_SF_0752_17_0388_X_1_FINAL_ORDER_2030195.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD GENE CLICK, JR., Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER SF-0752 -17-0388 -X-1 DATE: May 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Nolan Lim , Esquire, Seattle, Washington, for the appellant. Steven B. Schwartzman , Esquire, Seattle, Washington, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 On March 29, 2018, the administrative judge issued a compliance initial decision finding the agency in noncompliance with the Board’s October 3, 2017 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 final decision dismissing the underlying case pur suant to the parties’ settlement agreement. Click v. U.S. Postal Service , MSPB Docket No. SF -0752 -17-0388 -C- 1, Compliance File, Tab 10, Compliance Initial Decision (CID); Click v. U.S. Postal Service , MSPB Docket No. SF -0752 -17-0388 -I-1, Initial Appeal File (IAF), Tab 22, Initial Decision (ID).3 For the reasons discussed below, we now find the agency in compliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 The settlement agreement required the agency, among other things, to pay the appe llant “all back pay and benefits (less payroll deductions) from the date of his removal through his resignation.” IAF, Tab 21 at 6. The administrative judge determined that the agency had paid the appellant some back pay but had not paid him overtime pay as part of the back pay award or interest due on the entire back pay amount (including overtime). CID at 5. The administrative judge therefore ordered the agency to pay the appellant for 79.95 hours of overtime work, plus interest on the entire back pay amount.4 CID at 5. ¶3 After neither party filed a petition for review, the case was referred to the MSPB’s Office of General Counsel for a final decision on the issues of compliance, pursuant to 5 C.F.R. § 1201.183 (b)-(c). Click v. U.S. Postal Service , MSPB Docket No. SF -0752 -17-0388 -X-1, Compliance Referral File (CRF), Tab 1 at 2. The Clerk’s Office issued an acknowledgment ord er directing the agency to 3 The October 3, 2017 initial decision became the final decision of the Board after neither party filed a petition for administrative review by November 7, 2017. ID at 3. 4 The administrative judge’s order is somewhat ambiguous as to whether the interest was to be paid on the entire back pay amount or merely on the unpaid overtime. However, the administrative judge’s discussion of the agency’s contentions regarding its obligations under the settlement agreement notes that the agency paid no interest previo usly. CID at 3 -4. Thus , interest was owed on the entire back pay amount. 3 submit evidence that it had complied with all actions identified in the compliance initial decision. Id. at 3. ¶4 Subsequently, on May 22, 2018, the agency submitted a statement of compliance, providing its calculation of the over time amount due to the appellant as required by the Board’s decision. CRF, Tab 2. The agency also stated in its response that the interest due to the appellant was being calculated on an expedited basis and that full compliance with the actions identifie d in the compliance initial decision would be completed in a timely manner. Id. at 2-3. ¶5 On June 8, 2018, the agency submitted a supplemental statement of compliance stating that, on June 1, 2018, a check representing the overtime pay due to the appellant was delivered to the appellant’s home and that the appellant’s counsel had confirmed that the appellant received the check for the unpaid overtime. CRF, Tab 3 at 4. The agency also stated that, on June 1, 2018, agency counsel received the check for the unpaid interest on back pay/overtime due to the appellant in the amount of $918.36 and tha t the check would be mailed to the appellant on that date. Id. The appellant did not file a response to either submission. ¶6 In the acknowledgment order referring the compliance matter to the MSPB’s Office of General Counsel, the appellant was provided 20 calendar days from the date of service of the agency’s submission to respond to it. CRF, Tab 1 at 3 -4. The acknowledgment order also informed the appellant that, if no response was received within the 20 calendar days provided, the Board may assume that he was satisfied and dismiss the petition for enforcement. Id. at 4. As the appellant has not responded to the agency’s evidence of compliance , we assume he is satisfied. See Baumgartner v. Department of Housing and Urban Development , 111 M.S.P.R. 86 , ¶ 9 (2009). ¶7 In view of the agency’s evidence of compliance and the appellant’s failure to respond, we find the agency in comp liance and dismiss the petition for enforcement. This is the final decision of the Merit Systems Protection Board in 4 this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet t he requirements set out at title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201. 203. If you believe you meet these requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appr opriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. F ailure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 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 mu st file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which i s contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/p robono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation i n a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 6 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Fede ral Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prep ayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed thro ugh the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your d iscrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 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 rev iew 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 origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appea ls for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CLICK_GENE_SF_0752_17_0388_X_1_FINAL_ORDER_2030195.pdf	2023-05-10	null	SF-0752	NP
3,159	https://www.mspb.gov/decisions/nonprecedential/JUDD_JEFF_W_CH_0752_17_0307_I_1_FINAL_ORDER_2029604.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JEFF W. JUDD, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER CH-0752 -17-0307 -I-1 DATE: May 9, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Chris S. Searcy , Danville , Kentucky, for the appellant. Natalie L. Lewellen , Frankfort, Kentucky, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his removal appeal for lack of jurisdiction. On petition for review, the appellant argues that he should be considered an “employee” with Board appeal rights, regardless of when the agency removed him, because he did not file his Board appeal un til after the enactment of the National Defense Authorization Act for Fiscal Year 2017 (NDAA) , which he claims granted him the right, as 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 dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 dual-status military technician, to do so. Generally, we grant petitions such as this one only in the following circ umstances: 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 argume nt is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that 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 Here, the relevant events —the appellant’s alleged misconduct and his removal —occurred before the NDAA was signed into l aw on December 23, 2016. The administrative judge found that the NDAA amendments to 32 U.S.C. § 709 and 5 U.S.C. § 7511 that provide Boar d appeal rights to dual-status military technicians in certain appeals are not retroactive, and the appellant does not challenge this finding.2 Therefore, we agree with the administrative judge’s conclusion that the appellant did not have a right to appea l to the Board when the agency removed him. See Ockerhausen v. State of N.J. Department of Military 2 The NDAA limits dual -status Nationa l Guard Technician appeals of most agency actions to the adjutant general of the relevant jurisdiction when the appeal concerns activity occurring while the member is in a military pay status or concerns fitness for duty in the reserve components . 32 U.S.C. § 709(f)(4) . The law affords appeal rights pursuant to 5 U.S.C. §§ 7511 -7513 concerning any activity not covered by subsection (f)(4). 32 U.S.C. § 709(f)(5). The Office of Personnel Management regulations implementing the NDAA, effective December 12, 20 22, state that adverse actions and performance -based removals or reductions in grade of dual -status National Guard Technicians are not appealable to the Board except as provided by 32 U.S.C. § 709(f)(5) . 5 C.F.R. §§ 432.102 (b)(16) , 752.401(b)(17 ). 3 and Veterans Affairs , 52 M.S.P.R . 484 , 489 (1992) (finding that dual -status National Guard Technicians employed under 32 U.S.C. § 709 could not appeal adverse actions to the Board under the applicable law at the time). According ly, we find unpersuasive his argument that the Board has jurisdiction over his appeal because he filed it after the enactment of the NDAA. See Miller v. Federal Deposit Insurance Corporation , 122 M.S.P.R. 3 , ¶ 15 n.5 (2014) (noting that the relevant events occurred before the effective date of the Whistleblower Protection Enhancement Act of 2012 (WPEA) , and the fact that the appeal was docketed after the WPEA’s effective date did not change the Board’s analysis of the retroactivity issue, concluding that the relevant section of the WPEA was not retroactive and that the appe llant could not bring his appeal based on events that occurred before the WPEA’s effective date), aff’d , 626 F. App’x 261 (Fed. Cir. 2015).3 NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of ho w courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 3 Because the administrative judge properly dismissed the appeal for lack of jurisdiction, the Board need not address the issue of the timeliness of the appeal . See Fletcher v. Office of Personnel Management , 118 M.S.P.R. 632 , ¶ 10 n.2 (2012). 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 filing time limits and requirements. Fail ure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have qu estions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov /probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 Fe deral Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district cour t no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be ac cessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your rep resentative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EE OC is: 6 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your pe tition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Cir cuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	JUDD_JEFF_W_CH_0752_17_0307_I_1_FINAL_ORDER_2029604.pdf	2023-05-09	null	CH-0752	NP
3,160	https://www.mspb.gov/decisions/nonprecedential/SEDA_ANTHONY_WAYNE_DC_3330_17_0332_I_1_FINAL_ORDER_2029648.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ANTHONY WAYNE SEDA, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency. DOCKET NUMBER DC-3330 -17-0332 -I-1 DATE: May 9, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Anthony Wayne Seda , Aberdeen, Maryland, pro se. Anastasiya Sidorova , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Ch airman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for r eview and the agency has filed a cross petition for review of the initial decision, which denied the appellant’s request for corrective action under the Veterans Employment O pportunities Act of 1998 . At issue in this appeal is the appellant’s nonselection for an Administrative Program 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Specialist position. Initial Appeal File (IAF), Tab 13, Initial Decision (ID) at 1. The administrative judge denied corrective action on the basis that the appellant was not qualified for the position. ID at 9 -10. On peti tion for review, the appellant argues that his prior experience was sufficient to meet the requirements of the position to which he applied. Petition for Review (PFR) File, Tab 1 at 1; ID at 8 -9. He also challenges the administrative judge’s conclusion t hat the agency actually considered his application. PFR File , Tab 1 at 1-2; ID at 9 -10. In its cross petition for review, the agency seeks a technical correction, arguing that the initial appointment for the position at issue was an excepted -service appointment, with potential conversion to the competitive service after up to 2 years. PFR File, Tab 2 at 4 -5; ID at 2. 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 dilig ence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that neither party has established any basis under section 1201.115 for granting the petition or cross petition for review. Therefore, we DENY the petition for review and the cross petition for review. Except as expressly MODIFIED to deny the appellant ’s request for corrective action on the basis that the agency did not fill the position at issue and to VACATE the finding that the Administrative Program Specialist position was an excepted -service position , we AFFIRM the initial decision. ¶2 The agency submitted a sworn declaration from the hiring manager establishing that it did not fill the Administrative Program Specialist position. 3 IAF, Tab 5 at 23 -25; see Truitt v. Department of the Navy , 45 M.S.P.R. 344 , 347 (1990) (finding that u nrebutted sworn statements are competent evidence of the matters asserted therein ). Because the agency did not fill the position , we find it unnecessary to review the administrative judge’s findings regarding the appellant’s qualifications. Instead, we deny corrective action because an agency’s action of canceling a vacancy announc ement does not violate veterans’ preference laws. Scharein v. Department of the Army , 91 M.S.P.R. 329 , ¶ 10 (2002), aff’d per curiam , No. 02 -3270, 2008 WL 5753074 (Fed. Cir. Jan. 10, 2008); Jones v. Department of Health and Human Services , 119 M.S.P.R. 355 , ¶¶ 20-21, aff’d , 554 F. App’x 976 (Fed. Cir. 2013). We decline to determine the nature of the appointment issue, as requested by the agency in its cross petition for review . PFR File, Tab 2 at 4-5. The record is insufficiently developed for such a finding, which , in any event, is unnecessary to dispose of this appea l. To the extent that the administrative judge found that the Administrative Program Specialist position was an excepted -service position, we vacate that finding. NOTICE OF APPEAL RIGHTS2 The initial decision, as supplemented by this Final Order, consti tutes 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 fol lowing summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise w hich option is most appropriate in any matter. 4 this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the appli cable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a part icular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review w ith the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calend ar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer an d to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 6 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washi ngton, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW 12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no chal lenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review e ither with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Gu ide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warr ants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SEDA_ANTHONY_WAYNE_DC_3330_17_0332_I_1_FINAL_ORDER_2029648.pdf	2023-05-09	null	DC-3330	NP
3,161	https://www.mspb.gov/decisions/nonprecedential/AZIZDEEN_AZIZDIN_A_DA_0714_19_0182_I_1_FINAL_ORDER_2029697.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD AZIZDIN A. AZIZDEEN, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DA-0714 -19-0182 -I-1 DATE: May 9, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Azizdin A. Azizdeen , Killeen, Texas, pro se. Daniel Morvant and Mackenzie Novak , Denver, Colorado, for the agency. Johnston B. Walker , Esquire, and LaTasha C. Clark , Jackson, Mississippi, for the agency. BEFORE Cathy A. Harris, Vice Ch airman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has petitioned for review of the initial decision in this appeal. For the reasons set forth below, we DISMISS the petition for review as settled. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 ¶2 After the filing of the petition for review, the parties submitted a document entitled “SETTLEMENT AGREEMENT” and dated April 7, 2023 . Petition for Review (PFR) File, Tab 9 at 4 -7. The document provides, among other things, for the dismissal of the petition for review. Id. at 4-5. ¶3 Before dismissing a matter as settled, the Board must decide whether t he 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 agreem ent is lawful on its face and whether the parties freely entered into it. See Delorme v. Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017) . ¶4 Here, we find that the parties have entered into a settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforceme nt by the Board. PFR File, Tab 9 at 5 . Accordingly, we find that dismissing the petition for review with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances. In addition, we find that the agreement is lawful on its face and freely entered into, and we accept the settlement agreement into the record for enforcement purposes. ¶5 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS If the agency or the appellant has not fully carried out the terms of the agreement, either party may ask the Board to e nforce 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 3 petitioning party believes that the terms of the settlement agreement have not been fully carried out, and should include the dates and results of any communications between the parties. 5 C.F.R. § 1201.182 (a). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for yo ur situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to y our claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of rev iew below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a g eneral rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this dec ision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in th e notice, the Board cannot advise which option is most appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calend ar days after your representative receives this decision. If the action involves a claim of discrimination based on 5 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer an d to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no c hallenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial revie w either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Feder al Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	AZIZDEEN_AZIZDIN_A_DA_0714_19_0182_I_1_FINAL_ORDER_2029697.pdf	2023-05-09	null	DA-0714	NP
3,162	https://www.mspb.gov/decisions/nonprecedential/SHAVE_DONALD_M_SF_531D_18_0469_I_1_FINAL_ORDER_2029757.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DONALD M. SHAVE, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER SF-531D -18-0469 -I-1 DATE: May 9, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Donald M. Shave , Firecrest, Washington, pro se. John D. Norquist , Esquire, and Temple L. Wilson , Esquire, Fort Belvoir, Virginia, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member2 FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the agency’s reconsideration decision denying the appellant 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 require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 within -grade increase (WIGI) . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous a pplication of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. We therefore DENY the petition for review. Except as MODIFIED by this Final Order, we AFFIRM the initial decision. Because we agree with the administrative judge’s finding that the appellant did not make a protected disclosure, we MODIFY the initial decisio n to VACATE the administrative judge’s alternative finding that the agency proved by clear and convincing evidence that it would have denied the appellant’s WIGI in the absence of his disclosure . We also find that the appellant forfeited his claim regardi ng the Appointments Clause of the U.S. Constitution. DISCUSSION OF ARGUME NTS ON REVIEW ¶2 This is the second Board appeal addressing the agency’s decision to deny the appellant a WIGI in 2017. After holding a hearing i n the first appeal, the administrative j udge issued an initial decision reversing the agency’s July 3, 2017 denial of a WIGI for the period ending May 28, 2017. Shave v. Department of Defense , MSPB Docket No. SF -531D -17-0577 -I-1 (Shave I), Initial Decision (Mar. 11, 2018). The administrative j udge in that appeal found that the agency had committed harmful procedural error in denying the appellant’s request for 3 reconsideration of the WIGI denial because the reviewing official merely deferred to the appellant’s supervisor regarding the appellant’ s performance rating. Id. at 16. The administrative judge identified a number of issues with the performance rating that the reviewing official failed to address, and she remanded the matter to the agency to conduct a proper reconsideration. Id. at 16 -19. The administrative judge in the first appeal considered the appellant’s claims of age discrimination and whistleblower reprisal regarding the WIGI denial, but she found that the appellant failed to prove either of those defenses. Id. at 20 -26. ¶3 After r emand, the reviewing official issued a new reconsideration decision still affirming the WIGI denial. Shave v. Department of Defense , MSPB Docket No. SF-531D -18-0469 -I-1, Initial Appeal File (IAF), Tab 1 at 14 -16. The appellant did not believe that the ag ency’s new reconsideration decision was consistent with the administrative judge’s initial decision, and he filed a motion with the Board to compel the agency to comply with the administrative judge’s remand instructions. Id. at 4, 9 -12. The Board’s regi onal office docketed the appellant’s motion as a new appeal challenging the WIGI denial. IAF, Tab 2. The administrative judge incorporated the file from Shave I by reference into the file in the second appeal. IAF, Tab 10 at 1. ¶4 After holding the appella nt’s requested hearing, the administrative judge issued an initial decision affirming the denial of the appellant’s WIGI. IAF, Tab 17, Initial Decision ( ID). She found that the Office of Personnel Management (OPM) had approved the agency’s performance ap praisal system and that the agency had communicated to the appellant the critical elements and performance standards of his position. ID at 12-14. She further found that the appellant’s performance standards were valid. ID at 14 -17. The administrative judge then found that the agency had supported its decision to deny the appellant a WIGI by substantial evidence. ID at 14 -21. She specifically found that the reviewing official had adequately addressed the concerns she raised in her initial decision in Shave I. ID at 20. The administrative judge found that the appellant 4 failed to prove his affirmative defenses of harmful procedural error and whistleblower reprisal. ID at 21 -29. ¶5 The appellant has filed a timely petition for review of the initial decision. Shave v. Department of Defense , MSPB Docket No. SF-531D -18-0469 -I-1, Petition for Review (PFR) File, Tab 1. He argues that his ability to present his whistleblower reprisal cla im was harmed by the administrative judge’s rejection of an Inspector General’s report and one of his requested witnesses. Id. at 3. He also argues that under the U.S. Supreme Court’s decision in Lucia v. Securities and Exchange Commission , 585 U.S. ___, 138 S. Ct. 2044 (2018), the administrative judge who decided his appeal was not properly appointed , and he is therefore entitled to a new adjudication before a properly appointed official. Id. at 4. The appellant also challenges the administrative judge’s findings relating to his whistleblower reprisal claim. Id. He has submitted several documents with his petition for review, including discovery from both this appeal and his first WIGI appeal as well as a June 2018 grievance he filed regarding his performance appraisal for the period ending March 31, 2018. Id. at 7-84. The agency has responded in opposition to the petition for review. PFR File, Tab 4. The appellant’s arguments on review do not provide a basis for reversing the initial decision. ¶6 An employee under the General Schedule earns periodic increases in pay, or WIGIs, as long as his performance is at an acceptable level of competence. 5 U.S.C. § 5335 (a). When an agency determines that an employee is not performing at an acceptable level of competenc e (ALOC) and that a WIGI should be withheld, the employee is entitled to “prompt written notice of that determination” and an opportunity for reconsideration under regulations prescribed by OPM. 5 U. S.C. § 5335 (c). The employee may appeal to the Board if the agency affirms its decision to withhold a WIGI on reconsideration. Id. In a Board appeal under 5 U.S.C. § 5335 , the agen cy bears th e burden of proof , and its WIGI denial must be sustained only if it is supported by substantial evidence. 5 5 C.F.R. § 1201.56 (b)(1)(i). Substantial evidence is defined as “[t]he degree o f relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.” 5 C.F .R. § 1201.4 (p). It is a lower standard of proof than preponderant evidence. Id. On petition for review, the appellant does not specifically challenge the administrative judge’s findings regarding the agency’s ALOC determination. We have reviewed th ose findings , and we agree with the administrative judge that the agency met its substantial evidence burden to support its determination. ¶7 The appellant’s primary argument on the merit s of the initial decision concerns the administrative judge’s rejection of documentary evidence and one of his requested witnesses, both of which related to his whistleblower reprisal claim. PFR File, Tab 1 at 3. However, it appears that the appellant is challenging evidentiary rulings f rom his prior appeal. IAF, Tab 11 at 11 -13 (the appellant’s proposed witness list in the present appeal that does not include KM, the subject of his argument on petition for review). The administrative judge’s rulings in that separate appeal are not befo re us here. The appellant could have filed a petition for review to challenge the administrative judge’s disposition of his whistleblower reprisal claim in his first appeal, including her rulings on evidence and witnesses. Alternatively, the appellant wa s free to propose the same witness and seek to introduce the same documents in this appeal. If the appellant had done so and the administrative judge had ruled the same way again, those matters would have been properly before us here. As it stands, howev er, we find that the appellant failed to preserve those issues for our review in this case. See Tarpley v. U.S. Postal Service , 37 M.S.P .R. 579 , 581 (1988) (the appellant ’s failure to timely object to rulings on witnesses precludes his doing so on petition for review). ¶8 On the merits of the appellant’s whistleblower reprisal claim, the administrative judge found , as she had in Shave I, that the appellant’s disclosure 6 was not protected because it was merely a policy disagreement about whether the agency should cancel an audit. ID at 26 -29. The appellant does not challenge that finding on petition for review, and we see no reason to disturb it. We therefore agree with the administrative judge that the appellant failed to prove his whistleblower reprisal claim .3 ¶9 Because we have found that the appellant failed to prove that his disclosure was protected, it is unnecessary to decide whether the agency proved by clear and convincing evidence that it would have denied his WIGI in the absence of the disclosure. See Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154 , ¶ 19 n.10 (2014), aff’d , 623 F. App’x 1016 (Fed. Cir. 2015). Accordingly, we vacate the administrative judge’s finding that the agency met its clear and convincing burden. The Board will not consider the appellant’s untimely Appointments Clause claim. ¶10 The appellant argues for the first time on petition for review that the administ rative judge was not properly appointed under the Appointments Clause and that he is therefore entitled to a new adjudication of his appeal before a properly appointed official. PFR File, Tab 1 at 4. In Lucia , the Court held that administrative law judge s (ALJs) of the Securities and Exchange Commission (SEC) qualify as Officers of the United States subject to the Appointments Clause, rather than mere employees. 138 S. Ct. at 2049. Because SEC ALJs were appointed by SEC staff members rather than the Com mission itself, the Court 3 Although the appellant’s failure to establish tha t he made a protected disclosure is fatal to his whistleblower reprisal claim, the administrative judge also found that he failed to prove his disclosure was a contributing factor in the WIGI denial decision. ID at 29. On petition for review, the appella nt argues that the administrative judge erred in crediting the deciding official’s testimony that he was unaware of the appellant’s disclosure. PFR File, Tab 1 at 4. He submits a June 2018 grievance as evidence that the deciding official knew of his disc losures. Id. at 4, 57 -58. However, the deciding official’s second reconsideration decision denying the appellant’s WIGI for 2017 was made in April 2018. IAF, Tab 14. T herefore , the appellant’s June 2018 grievance does not establish that his disclosure, even if protected, was a contributing factor in the WIGI denial that was finalized more than 2 months earlier . 7 held that the appointment of those ALJs violated the Appointments Clause. Id. at 2050, 2053 -55. The Court held that because Lucia had made a timely challenge to the constitutional validity of the appointment of the ALJ who adjud icated his case, he was entitled to relief in the form of a new hearing before a different, properly appointed official. Id. at 2055. ¶11 The Court in Lucia did not specifically define what constitutes a time ly challenge to an appointment. In McClenning v. D epartment of the Army , 2022 MSPB 3, ¶¶ 5-15, we held that an Appointments Clause challenge regarding a Board administrative jud ge must be raised to the administrative judge before the close of the record in order to be timely. In McClenning , the appellant raised her Appointments Clause claim in a timely petition for review a few weeks after the Supreme Court issued its decision i n Lucia . Id., ¶ 4. Here, the appellant first raised his Appointments Clause claim in a timely petition for review a few months after the Court decided Lucia . PFR File, Tab 1. In doing so, he asserted that he was previously unaware of the Lucia decision . Id. at 4. We held in McClenning that the discovery of a new legal argument is not itself sufficient to justify the appellant’s failure to raise the Appointments Clause argument before the administrative judge. McClenning , 2022 MSPB 3, ¶¶ 11-12. Thus, even if we accept as true the appellant’s assertion that he raised his Appointments Clause claim so on after learning of the Lucia decision, we find that the claim was untimely because he failed to raise it before the administrative judge. ¶12 As we recognized in McClenning , the Board’s regulations reserve to it the authority to consider any issue in an appe al before it. Id., ¶ 15; 5 C.F.R. § 1201.115 (e). Here, as in McClenning , we find no basis to exercise that discretion on the facts of this case. We note that the appellant could have raised his Appointments Clause claim in his first WIGI appeal, and he would have had reason to believe that claim might succeed. By the time the record closed in that appeal, one court of appeals had already held that SEC ALJs are inferior officers subjec t to the Appointments Clause, Bandimere v. Securities and Exchange 8 Commission , 844 F.3d 1168 (10th Cir. 2016), and the Supreme Court had granted certiorari to address the issue in a separate matter, Lucia v. Securities and Exchange Commission , 138 S. Ct. 736 (Jan. 12, 2018). By the time the record closed in this second appeal, the Supreme Court had issued its decision on the merits in Lucia . Accordingly, we will not consider the appellant’s Appointments Clause challenge raised for the first time on petition for review. 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 fin al decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the righ ts described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 9 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Gui de for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warra nts that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 10 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before y ou do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condit ion, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be fou nd at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by t he Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of F ederal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 11 Office of Federal Operations Equal Em ployment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whi stleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C ), or (D),” then you may file a 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 origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 12 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SHAVE_DONALD_M_SF_531D_18_0469_I_1_FINAL_ORDER_2029757.pdf	2023-05-09	null	SF-531D	NP
3,163	https://www.mspb.gov/decisions/nonprecedential/TARRAB_ALAN_DC_1221_16_0411_W_1_FINAL_ORDER_2029759.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ALAN TARRAB, Appellant, v. DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER DC-1221 -16-0411 -W-1 DATE: May 9, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Alan Tarrab , Herndon , Virginia , pro se. Pegah Yazdy Gorman , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the i nitial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review . Except as expressly MODIFIED by this Final Order to find that the appellant failed to exhaust his administrative remedies with the Office of Special Counsel (OSC) for one claim and failed to present nonfrivolous allegations under 5 U.S.C. § 2302 (b)(9)(D) for the others , we AFFIRM the initial decision. ¶2 At all times relevant to this IRA appeal, the appellant held a GS -11 position of Petroleum Engineer. Initial Appeal File (IAF), Tab 1 at 1, Tab 8 at 118. In or around January 2014, he applied for a promotion to a GS -11/GS -14 General Enginee r position. IAF, Tab 8 at 118 -26. Although the appellant was rated among the best qualified candidates and his name was referred to the selecting official, he was not selected for the promo tion. IAF, Tab 1 at 6. Following his nonselection, the appellant filed a complaint with OSC. Id. at 7-16. He alleged that his nonselection was the result of unlawful retaliation. Id. Specifically, the appellant asserted that the agency had not select ed him for the promotion because he had refused to work uncompensated overtime, which he described as contrary to 5 U.S.C. § 5542 and 31 U.S .C. § 1342 . Id. at 7. In January 2016, OSC issued a closeout letter, terminating its inquiry and informing the appellant of his Board appeal rights. Id. at 17 -18. The instant IRA appeal followed. ¶3 The administrative judge issued an order, directing the appellant to meet his jurisdictional burden of proof. IAF, Tab 5. After the appellant and the agency 3 both responded, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision ( ID). The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed an untimely response, and the appellant has filed a reply.2 PFR File, Tabs 4 -5. The Board lacks jurisdiction over matters that were not exha usted before OSC. ¶4 The Board has jurisdiction over an IRA appeal if the appellant exhausts his administrative remedies before OSC and makes nonfrivolous allegations that: (1) he made a disclosure described under 5 U.S.C. § 2302 (b)(8), or engaged in protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclos ure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302 (a). 5 U.S.C. §§ 1214 (a)(3), 1221(e)(1); Yunus v. Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001). As to the e xhaustion requirement, the Board may only consider the matters raised before OSC. Coufal v. Department of Justice , 98 M.S.P.R . 31, ¶¶ 14, 18 (2004). ¶5 In his complaint to OSC, the appellant asserted that his nonselection for a promotion stemmed from his refusal to obey an unlawful order. IAF, Tab 1 at 7. When asked to describe the order he refused to obey, the appellant alleged that he was “requested to work uncompensated overtime (i.e. through my lunch break) contrary to 5 U.S.C. § 5542 and 31 U.S.C. § 1342 .” Id. He asserted that the unlawful order occurred on March 15, 2014, and he had an email documenting it. 2 The agency’s response, filed on September 13, 2016, was due a day earlier. PFR File, Tab 2 at 1, Tab 4. The agency attributed its untimeliness to an otherwise unexplained “administrative error.” PFR File, Tab 3 at 4. We will not consider the response because the agency has failed to establish good cause for its delay . See Jones v. U.S. Postal Service , 110 M.S.P.R. 674 , ¶ 5 n. 2 (2009) (recognizing that t he Board will waive the filing deadline for an untimely response to a petition for review only for good cause ; to establish good cause for an untimely filing, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case ). 4 Id. at 7-8. Separately, the appellant alleged that an interviewer for the General Engineer promotion he sought indicated that GS -14s were expected to work more than 40 hours a week without additional compensation and asked if the appellant was willing to do that. Id. at 8. The appellant reportedly responded by indicating that he “wasn’t sure.” Id. ¶6 Although the aforementioned complaint to OSC was l imited to two specific matters, the March 15, 2014 instruction about working through lunch and an interview question about working more than 40 hours a week if promoted,3 the appeal before us appears to present an additional allegation . In response to the administrative judge’s jurisdictional order, the appellant referred to the March 15, 2014 instruction and his interview but also alleged that he had refused to work uncompensated overtime “over a period of time in 2015 when [he] was the only remaining non -supervisory staff member” in his section. IAF, Tab 6 at 4. Because the appellant failed to present anything showing that he raised this additional allegation before OSC, specific to 2015 and a time when his section was reportedly shorthanded, we modify the initial decision to find that he failed to meet the exhaustion requirement and the Board cannot address the matter further . See Miller v. Federal Deposit Insurance Corporation , 122 M.S.P.R. 3 , ¶¶ 6-10 (2014) (finding that the Board lacked jurisdiction over an appellant’s new allegations of protected activity separate from the activity that was the core of the retaliati on claim described in his submissions to OSC) , aff’d , 626 F . App’x 261 (Fed. Cir. 2015) ; Coufal , 98 M.S.P.R. 31 , ¶¶ 14, 18 (same). The appellant failed to present nonfrivolous allegations that he engaged in protected activity. ¶7 On review, the appellant correctly notes that the administrative judge improperly addressed his claim under section 2302(b)(8), the whistleblowing 3 The OSC closeout letter included in the record simply describes the appellant’s allegation as reprisal “for refusing to work uncompensated overtime hours in 2014.” IAF, Tab 1 at 17. 5 provisio n, rather than section 2302(b)(9)(D), the right -to-disobey provision.4 PFR File, Tab 1 at 4 -5; ID at 6 -8. We modify the decision accordingly but find that the appellant has nevertheless failed to meet his jurisdictional burden.5 ¶8 As stated above, the appe llant’s jurisdictional burden includes presenting nonfrivolous allegations that he made a disclosure described under 5 U.S.C. § 2302 (b)(8), or engaged in protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). Supra ¶ 4. The provision that the appellant relies on, section 2302(b)(9)(D), protects against retaliation “for refusing to obey an order that would require [an] individual to violate a law.”6 5 U.S.C. 4 The administrative judge’s decision does conclude that the appellant failed to identify any activity that would qualify as protected under section 2302(b)(9), generally. ID at 8. However, the decision does not substa ntively address the appellant’s allegation that his activity was protected under section 2302(b)(9)(D). ID at 6 -8. 5 We recognize that the administrative judge issued his decision without responding to the appellant’s pending motion to compel discovery. IAF, Tab 9. However, in that motion, the appellant sought information that was not relevant to his jurisdictional burden of presenting nonfrivolous allegations that he engaged in protected activity . Id. For example, the appellant requested all emails se nt by his supervisors outside of business hours, all documents concerning the vacancy announcement at issue , and all prior complaints against his supervisors. Id. at 5-8. Accordingly, we find that the administrative judge’s failure to rule on the motion to compel was harmless. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) ( noting that an adjudicatory error tha t is not prejudicial to a party’ s substantive rights provides no basis for reversal of an initial decision). Errors the appellant has identified in the initial decision, including the misspelling of his name and the misstating of his current address and emplo yment status, are similarly harmless. PFR File, Tab 1 at 4. 6 During the pendency of this appeal, the Follow the Rules Act (FTRA), Pub. L. No. 115-40, 131 Stat. 861, was signed into law on June 14, 2017. Prior to the enactment of the FTRA, 5 U.S.C. § 2302 (b)(9)(D) made it a prohibited personnel practice to take or fail to take, or threaten to take or fail to take, a personnel action against an employee or applicant for “refusing to obey an order that would require the individual to violate a law.” 5 U.S.C. § 2302 (b)(9)(D); Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 11. In 2016, the U.S. Court of Appeals for the Federal Circuit held that the protection in section 2302(b)(9)(D) extended only to orders that would require the individual to take an action bar red by statute. Rainey v. Merit Systems Protection Board , 824 F.3d 1359 , 1361 -62, 1364 -65 (Fed. Cir. 2016) . The FTRA expanded 5 U.S.C. § 2302 (b)(9)(D) to provide that it is a prohibited personnel practice to take or fail to take, or threaten to take or fail to take, an action against an employee or applicant because of “refusing to obey an order that would require the individual to violate a law, 6 § 2302 (b)(9)(D); Rainey v. Department of State , 122 M.S.P.R. 592 , ¶ 7 (2015) , aff’d , 824 F.3d 1359 (Fed. Cir. 2016) . Accordingly, the appellant needed to present no nfrivolous allegations that he refused to obey an unlawful order. After reviewing the appellant’s submissions, we find that he failed to do so. ¶9 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), vague, conclusory, unsupported, and pro form a allegations of alleged wrongdoing do not meet the nonfrivolous pleading standard needed to establish the Board’s jurisdiction over an IRA appeal. El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 6 (2015) , aff’d , 663 F. App’x 921 (Fed. Cir. 2016) . Here, the appellant has suggested that the agency instructed him to work through his lunch break on March 15, 2014, and doing so would have violated 5 U.S.C. § 5542 and 31 U.S.C. § 1342 . IAF, Tab 1 at 7, Tab 6 at 4. To support this assertion, the appellant submitted an email chain in which he and his supervisor discussed a training session the appellant was scheduled to attend. IAF, Tab 6 at 5 -7. The appellant first indicated that he would not be able to attend the training due to a time -sensitive assignment. Id. at 6. The appellant’s supervisor responded, indicating that he should attend the training and cut corners elsewhere. Id. at 5. He elaborated by listing what the appellant’s priorities should be. Id. The appellant replied, indicating that he would check vo icemail and triage emails during what little time was left from the training session. Id. In the next and final message in the email chain, the appellant’s supervisor stated, “[i]n order to attend the training, just do quick reviews on the DOE proposals during lunch/breaks.” Id. ¶10 We first note that the appellant identified his position as a GS -11 Petroleum Engineer, but he failed to provide further information concerning the position to rule, or regulation.” 131 Stat. at 861; Fisher , 2023 MSPB 11, ¶ 12. The FTRA does not apply to events that occurred before its enactment. Fisher , 2023 MSPB 11, ¶¶ 13-19. Because the relevant even ts at issue in this appeal occurred prior to the June 14, 2017 enactment of the FTRA, we apply the pre -FTRA version of section 2302(b)(9)(D). 7 determine what overtime laws may apply. IAF, Tab 1 at 1; see general ly 5 U.S.C. § 5543 (a)(2) (providing an agency with the discretion to grant compensatory time for irregular or occasional overtime of employees whose pay exceeds the maximum rate of a GS -10, instead of paying for the work under 5 U.S.C. § 5542 ); Yetman v. Department of the Army , 36 M.S.P.R. 425 , 427 n.1 (1988) (recognizing that the Fair Labor Standards Act prohibits unpaid overtime for some employees, but others are exempt). Next, we note that the aforementioned email does not indicate that the appellant would be uncompensated if his attendance at the training and maintenance of other duties resulted in working beyond his normal tour. IAF, Tab 6 at 5 -7. In other words, although his supervisor instructed the appellant to accomplish certain tasks, even if it meant working throu gh lunch, he did not order him to do so without compensation. Id. Lastly, although the appellant generally has alleged that he refused his supervisor’s order and the supervisor knew of his refusal, he did not provide a sworn statement or anything else to support that assertion. See 5 C.F.R. § 1201.4 (s) (defining a nonfrivolous allegation and recognizing that “[a]n allegation generally will be considered nonfrivolous when, under oath or p enalty of perjury, an indiv idual makes an allegation that: (1) [i]s more than conclusory; (2) [i]s plausible on its face; and (3) [i]s material to the legal issues in the appeal”). ¶11 The appellant’s allegations concerning his interview are similarly unavailing . The appellant indicated that an interviewer asked if he would be willing to work more than 40 hours a week without additional compensation. IAF, Tab 1 at 8, Tab 6 at 4. Even if performing work over 40 hours without additional compensation wo uld have been unlawful, the appellant has merely identified a hypothetical question in an interview, not an order. Moreover, the appellant alleges that he responded to the question by saying that he “wasn’t sure,” which does not amount to a refusal to obe y an order, lawful or otherwise. IAF, Tab 1 at 8. 8 ¶12 Under the circumstances, we find that the appellant’s allegations do not meet the nonfrivolous pleading standard needed to establish the Board’s jurisdiction. See El, 123 M.S.P.R. 76 , ¶ 6; 5 C.F.R. § 1201.4 (s). He failed to nonfrivolously allege that the agency retal iated against him for activity protected under section 2302(b)(9)(D), the right -to-disobey provision. NOTICE OF APPEAL RIG HTS7 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Pro tection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to see k review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by you r chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review right s included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 9 Court of Appeals for the Federal Circuit, which mus t be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, 10 and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representa tive receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requiremen t of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all ot her issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 2001 3 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 11 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Boar d’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 Ci rcuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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. 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 Prote ction Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	TARRAB_ALAN_DC_1221_16_0411_W_1_FINAL_ORDER_2029759.pdf	2023-05-09	null	DC-1221	NP
3,164	https://www.mspb.gov/decisions/nonprecedential/OSABUOHIEN_MARILYN_CH_3443_17_0357_I_1_FINAL_ORDER_2029770.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MARILYN OSABUOHIEN, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER CH-3443 -17-0357 -I-1 DATE: May 9, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Marilyn Osabuohien , Detroit, Michigan, pro se. Karla W. Yeakle , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed the appeal of the final decision of the Office of Personnel Management (OPM) on the appellant’s Federal Employees’ Retirement System (FERS) disability retirement annuity overpayment as moot. On petition f or 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 require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 appellant argues that her appeal is not moot because she continues to receive a reduced annuity , and she disputes the administrative judge’s denial of a motion to compel . Generally, we grant petitions such as this one only in the following circumstances: the initial decision cont ains 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 pet itioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that 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 As an initial matter, there is no dispute that OPM waived collecting the overpayment. This issue is, therefore, no lon ger “live,” and there is no reason to disturb the administrative judge’s conclusion that this matter is moot because OPM has afforded the appellant the appropriate relief. See O’Neill v. Office of Personnel Management , 102 M.S.P.R. 298 , ¶ 12 (2006). Regarding the appellant’s motion to compel, we find that the administrative judge did not abuse his discretion in denying it because no ne of the information that the appellant sought in her discovery request could have changed the outcome of the appeal. Initial Appeal File (IAF) , Tab 9 at 6 -9, Tab 10, Initial Decision at 1 n.1; see Brasch v. Department of Transportation , 101 M.S.P.R. 145 , ¶ 17 (2006). ¶3 The overpayment issue aside, there still appears to be an outstanding dispute between the appellant and OPM pertain ing to the reduction of the appellant’s FERS annuity relative to her Social Security disability insurance 3 benefits. Petition for Review (PFR) File, Tab 4 at 5, Tab 7. This is presumably what the appellant was referring to when she raised the issue of a r eduction in her annuity. IAF, Tab 4 at 4; PFR File, Tab 1 at 4 -5. This, however, is a separate matter from the overpayment issue , which has now been resolved in the appellant’s favor. After OPM issues a final decision on the annuity reduction, and if th e appellant is dissatisfied with that decision, she then may file a new Board appeal to contest it. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. 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 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono re presentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, 5 and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your re presentative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed th rough the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you recei ve this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 6 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial rev iew 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 Appea ls for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’ s “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 origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Cir cuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	OSABUOHIEN_MARILYN_CH_3443_17_0357_I_1_FINAL_ORDER_2029770.pdf	2023-05-09	null	CH-3443	NP
3,165	https://www.mspb.gov/decisions/nonprecedential/HUMBERT_JAMES_D_SF_1221_16_0731_W_1_FINAL_ORDER_2029792.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JAMES D. HUMBERT, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER SF-1221 -16-0731 -W-1 DATE: May 9, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 James D. Humbert , North Las Vegas, Nevada, pro se. Matthew S. Voss , Esquire, North Las Vegas, Nevada, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneou s findings of material fact; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal o r the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this ap peal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 Effective April 22, 2016, the agency terminated the appellant from his position during his trial period based on his alleged unacceptable conduct and behavior . Initial Appeal File (IAF), Tab 4 at 20, 22-23. The appellant filed an appeal with the Board , alleging that the agency terminated him from his position due to his protected activity, i.e., after he made complaints about other employees and “Huma n Resources actions.” IAF, Tab 1 at 1 -6. ¶3 The appellant’s appeal was docketed as an IRA appeal. IAF, Tab 2. The administrative judge issued an acknowledgment order apprising the appellant of the applicable law and burden of proof requirements for an IRA appeal and ordering him to submit evidence and argument establishing Board jurisdiction over his appeal. Id. The appellant did not respond to the administrative judge’s order. The agency submitted a jurisdictional response and a motion to dismiss the appeal, arguing that the appellant failed to meet his burden of proving Board jurisdiction ove r his IRA appeal. IAF, Tabs 4 -5. A lternatively , the agency argued that, even if the appeal were to be considered as a direct challenge of his 3 termination, it shou ld be dismissed as untimely filed or for lack of Board jurisdiction because the appellant was a preference eligible in an excepted service position, serving in a trial appointment at the time of his termination, and not an “employee” with Board appeal righ ts under 5 U.S.C. § 7511 . IAF, Tab 4 at 5 -6 n.1. The appellant did not respond to the agency’s motion to dismiss. ¶4 The administrative judge issued an initial decision without holding the appellant ’s requested hearing, in which he dismissed the IRA appeal for a lack of Board jurisdiction. IAF, Tab 6, Initial Decision (ID). The appe llant filed a petition for review, and the agency filed a response. Petition for Review (PFR) File, Tabs 1, 3. DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge correctly found that the appellant failed to establish Board jurisdiction over his IRA appeal. ¶5 The Board has jurisdiction over an IRA appeal if the appellant has exhausted his administrative remedies before the Office of Special Counsel (OSC ) and makes nonfrivolous allegations that (1) he engaged in whistleblowing activity b y making a protected disc losure and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action. Shibuya v. Department of Agriculture , 119 M.S.P.R. 537 , ¶ 25 (2013) . Under 5 U.S.C. § 1214 (a)(3), administrative remedies must be exhausted by seeking corrective action from OSC before seeking corrective action from the Board. The substantive requirements of exhaustion are met when an appellant has prov ided OSC with a sufficient basis to pursue an investigation. Chambers v. Department of Homeland Security , 2022 MSPB 8 , ¶ 10. The purpose of the exhaustion requirement is to give OSC the opportunity to take corrective action before involving the Board in the case. Id. An appellant may demonstrate exhaustion through an initial OSC complaint or correspondence with OSC. Id., ¶ 11. E xhaustion may also be proved through other sufficiently reliable evidence, such as an affidavit or declaration attesting that the appellant raised with OSC the 4 substance of the facts in the Board appeal. Id. The appellant must prove exhaustion with OSC by preponderant evidence, not just nonfrivolous allegations. Id. ¶6 Here, the administrative judge ’s acknowledgment order notified the appellant as to how to meet the jurisdictional requirements for an IRA appea l and ordered him to file evidence and argument sufficient to establish that he met those requirements. IAF, Tab 2 at 2 -9. The appellant did not submit anything in response to the administrative judge’s order and has not provided any additional evidence on review to demonstrate that he has exhausted his remedies before OSC. With his initial appeal, the appellant submitted a July 2016 letter from OSC in which OSC acknowledged the appellant’s allegation that the agency terminated him for his complaints “ab out employees and human resources actions” but indicated that he had not provided OSC with copies of such complaints or any information about their substance. IAF, Tab 1 at 29. Absent any additional evidence of exhaustion, we find that the appellant fail ed to establish that he provided OSC with a sufficient basis to pursue an investigation. We therefore agree with the administrative judge that the appellant failed to prove exhaustion by preponderant evidence. Accordingly, we affirm the dismissal of the appellant’ s IRA appeal for lack of jurisdiction.2 We do not consider in this appeal the appellant’s arguments raised for the first time on revie w. ¶7 The appellant argues for the first time o n review that he was not serving in a probationary or trial appointment at the time of his termination and that he was an “employee” with Board appeal rights as defined by 5 U.S.C. § 7511 . PFR File, Tab 1 at 3. The appellant also appears to argue for the first time on review that 2 Because we find that the appellant failed to exhaust his administrative remedies with OSC, we need not consider the administrative judge’s finding that the appellant failed to nonfrivolously allege that his disclosure to OSC was a contributing factor in the agency’s decision to terminate him. ID at 9. 5 his termination was based on preappointment reasons and taken without proper procedures . Id. ¶8 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 d espite the party’s due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980); 5 C.F.R. § 1201.115 (d). The appellant fails to make this showing. If the appellant wishes to pursue his claim that he was an “employee” with Board appeal rights or that the agency terminated him for preappointment reasons without fo llowing the required procedures, he should file a separate appeal. NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your cla ims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Mer it Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If y ou wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of yo ur case by your chosen forum. Please read 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 partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain 7 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representati ve receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, nati onal origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information f or U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your rep resentative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EE OC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 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 2 302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your pe tition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Cir cuit, you must submit your petition to the court at the following address: 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 Appeal s for the Federal Circuit or any other circuit court 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 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prote ction Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HUMBERT_JAMES_D_SF_1221_16_0731_W_1_FINAL_ORDER_2029792.pdf	2023-05-09	null	SF-1221	NP
3,166	https://www.mspb.gov/decisions/nonprecedential/CASTILLEJO_LEO_A_SF_0752_18_0816_X_1_FINAL_ORDER_2030118.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LEO A. CASTILLEJO, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER SF-0752 -18-0816 -X-1 DATE: May 9, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Leo A. Castillejo , Hacienda Heights, California, pro se. Catherine V. Meek , Long Beach, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 On November 13, 2019, the administrative judge issued a compliance initial decision finding the agency in partial noncompliance with a June 6, 2019 initial 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential o rders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the B oard as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 decision reversing the appellant’s removal . Castillejo v. U.S. Postal Service , MSPB Docket No. SF-0752 -18-0816 -C-1, Compliance File (CF), Tab 15, Compliance Initial Decision (CID); Castillejo v. U.S. Postal Service , MSPB Docket No. SF-0752 -18-0816 -I-1, Initial Appeal File, Tab 24, Initial Decision (ID). For the reasons discussed below, we now find the agency in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 In the June 6, 2019 initial decision, the administrative judge found that the agency violated the appellant’s right to due process by effecting his removal without first affording him notice and an opportunity to respond. ID at 5 -6. Accordingly, she reversed the remov al without addressing its merits and ordered the agency to cancel the removal, to retroactively restore the appellant effective July 19, 2018, and to provide him the appropriate back pay and benefits. ID at 6, 9. After neither party filed a petition for review, the initial decision became the final decision of the Board on July 11, 2019. ID at 12; see 5 C.F.R. § 1201.113 . ¶3 On August 20, 2019, the appellant petitioned for enforcement of the initial decision, asserting tha t the agency had not yet cancel ed his removal, restored him to his position, or p aid him back pay and benefits. CF, Tab 1 at 4. After allowing the parties an opportunity submit evidence and argument regarding compliance , the administrative judge issued a November 13, 2019 compliance initial decision finding the agency in partial nonc ompliance with the initial decision. CID. Specifically, although she found the agency in compliance with its obligations to cancel the appellant’s removal and retroactively restore him , she found the agency in noncompliance with its obligation to pay him appropriate back pay and benefits because it had not paid him the military leave pay to which he would have been entitled but for the reversed removal. CID at 4. She further found the agency in noncompliance to the extent that it had failed to refund to the 3 appellant the $973.87 it had collected from him for “overdrawn annual and/or sick leave” caused by the reversed removal. CID at 5. Accordingly, the administrative judge granted the appellant’s petition for enforcement and ordered the agency to tak e the following actions: (1) Pay the appellant for 120 hours of military leave pay for the fiscal year covered by October 1, 2018 to September 30, 2019 ; (2) Pay the appellant $973.87, which was incurred as a “overdrawn annual and/or sick leave related de bt” due to his removal and subsequently collected from the appellant; and (3) Inform the appellant in writing of all actions taken to comply with the Board’s Order and the date on which it believes it has fully complied. CID at 6. Neither party filed a petition for review of the compliance initial decision, and the appellant’s petition for enforcement was referred to the Board for a final decision on issues of compliance pursuant to 5 C.F.R. § 1201.183 (b)-(c). Castillejo v. U.S. Postal Service , MSPB Docket No. SF-0752 - 18-0816 -X-1, Compliance Referral File (CRF), Tab 1. ¶4 In a December 19, 2019 acknowledgment order, the Clerk of the Board directed the agency to submit evidence showing that it had complied with the requirements of the compliance initial decision. CRF, Tab 1 at 3. The Clerk informed the appellant that he could respond to the agency’s evidence of compliance within 20 days of the date of service of the agency’s submission . Id. The Clerk further informed him that, if he did not respond to the agency’s evidence of compliance , the Board may assume he was satisfied and dismiss his petition for enforcement. Id. ¶5 On December 29, 2019, the agency filed with the Board a notice of compliance indicating that it had achieved full compl iance with the Board’s orders. CRF, Tab 2 at 3. As evidence , the agency provided a copy of a November 14, 2019 email from the appellant indicating that he had picked up the “recoupment garnished pay” and that a deposit for fiscal year 2019 military pay had posted to his account. Id. at 5-6. The appellant also indicated in the email 4 that he beli eved the agency had complied with the Board’s order and that he intended to file a pleading with the Board confirming the agency’s compliance . Id. The agency submitted subsequent emails between the appellant and the agency official reflect ing that the ap pellant had been unable to submit the intended pleading confirming compliance and that he consented to the agency filing a copy of his November 14, 2019 email . Id. at 4-6. The appellant has not responded to the agency’s submission . ¶6 When the Board finds a personnel action unwarranted, the aim is to place the appellant, as nearly as possible, in the situation he would have been in had the wrongful personnel action not occurred. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011); King v. Department of the Navy , 100 M.S.P.R. 116 , ¶ 12 (2005), aff’d per curiam , 167 F. App ’x 191 (Fed. Cir. 2006). The agency bears the burden to prove compliance with the Board ’s order by a preponderance of the evidence.3 Vaughan , 116 M.S.P.R. 319 , ¶ 5; 5 C.F.R. § 1201.183 (d). An agency ’s asser tions of compliance must include a clear explanation of its compliance actions supported by documentary evidence. Vaughan , 116 M.S.P .R. 319, ¶ 5. The appellant may rebut the agency ’s evidence of compliance by making specific, nonconclusory, and supported assertions of continued noncompliance. Id. ¶7 As set forth above, the agency now contends that it is in compliance with the Board’s orders, including the administrative judge’s order to pay the appellant military leave pay for the back pay period and to refund to him a collected debt in the amount of $973.87. CRF, Tab 2; CID at 4 -6. As evidence of compliance, the agency submitted email s from the appellant reflecting his agreement that the agency has complied with the Board’s orders and asserting that he received the 3 A preponderance of the evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q). 5 ordered military leave pay and refund . CRF, Tab 2 at 4-6. We find that this evidence is sufficient to establish that the appellant is satisfied and that the agency has achieved compliance with the Board’s orders. ¶8 In light of the foregoing, we find that the agency is now in compliance and dismiss the petition for enforcement. This is the final decision of the Merit Syste ms Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set 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 WITHI N 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a 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 advis e 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 req uirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final B oard order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appel lants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http:/ /www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept r epresentation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was bas ed, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appea ls for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your repr esentative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requ irement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 8 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D. C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’ s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review A ct, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 9 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit , you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor war rants that any attorney will accept representation in a given case. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CASTILLEJO_LEO_A_SF_0752_18_0816_X_1_FINAL_ORDER_2030118.pdf	2023-05-09	null	SF-0752	NP
3,167	https://www.mspb.gov/decisions/nonprecedential/WALKER_LARRY_E_DA_0752_20_0334_A_1_FINAL_ORDER_2029078.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LARRY E. WALKER, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DA-0752 -20-0334 -A-1 DATE: May 8, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ralph A . Cantafio , Esquire, Denver , Colorado , for the appellant. Olga Sinquefield , Esquire, Fort Bliss , Texas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his motion for attorney fees as untimely filed without good cause 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 shown .3 On petition for review, the appellant argues that he timely submitted his motion by email and , in the alternative, that good cause existed for the filing delay because his counsel encountered multiple issues wh en attempting to electronically file the motion , was recovering from an illness during the filing deadline , and was working with limited re sources during this period . 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, secti on 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this 3 On September 3 0, 2021, in the appeal that preceded the appellant’s motion for attorney fees, the administrative judge issued a merits initial decision reversing the agency’s removal action against the appellant and finding that the appellant failed to prove his affirmat ive defenses. Walker v. Department of the Army , MSPB Docket No. DA-0752 -20-0334 -I-2, Appeal File, Tab 20, Initial Decision (ID) at 2. The appellant filed an untimely petition for review challenging that merits decision on December 17, 2021 , before subseq uently submitting his motion for attorney fees . See Walker v. Department of the Army , MSPB Docket No. DA -0752 -20-0334 -I-2, Petition for Review File, Tab 1. Thus, the appellant’s petitions for review concerning the merits issue and the attorney fee issue were both before the Board at the same time. On May 5, 2023, the Board issued a decision dismissing the petition for review as to the merits issue as untimely filed without good cause shown. Walker v. Department of the Army , MSPB Docket No. DA -0752 -20-0334-I-2, Final Order (May 5, 2023 ). As a result of that dismissal, the administrative judge’s September 30, 2021 initial decision remained the Board’s final decision regarding the agency’s removal action. And, because that was a final decision, the appell ant’s motion for attorney fees was not premature (although it was untimely) and the Board’s present consideration of the appellant’s petition for review concerning the denial of attorney fees is proper. See 5 C.F.R. § 1201.203 (d) (a motion for attorney fees must be filed as soon as possible after a final decision of the Board but no later than 60 days after the date on which a decision become s final). 3 appeal, we conclude that 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 APPEA L 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 wi th which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the l aw applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possibl e choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 within 60 calendar days of the date of issu ance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the follo wing address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. C ourt of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the se rvices provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affect ed by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file 5 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for re view to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 6 (3) Judicial review pursuant to the Whistleblower Protection Enha ncement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of compete nt jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 20 18, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The A ll Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	WALKER_LARRY_E_DA_0752_20_0334_A_1_FINAL_ORDER_2029078.pdf	2023-05-08	null	DA-0752	NP
3,168	https://www.mspb.gov/decisions/nonprecedential/DOWNING_DANIEL_DEAN_CH_0752_18_0073_I_1_FINAL_ORDER_2029084.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DANIEL DEAN DOWNING, Appellant, v. DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER CH-0752 -18-0073 -I-1 DATE: May 8, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Daniel Dean Downing , La Salle, Michigan, pro se. Deborah E. Yim , Esquire, Lakewood, Colorado, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petitio n for review of the initial decision, which dismissed his involuntary retirement appeal for lack of jurisdiction . On petition for review, the appellant argues that the administrative judge erred in dismissing his appeal for lack of jurisdiction and that her “premature dismissal” of his appeal “raises an issue of possible bias or prejudice .” Generally, we grant petitions such 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial de cision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the reco rd closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Boar d’s final decision.2 5 C.F.R. § 1201.113 (b). ¶2 Regarding the appellant’s contention that the administrative judge was biased, there is a presumption of honesty and integrity on the part of administrative judges that can only be overcome by a subst antial sho wing of personal bias, and t he Board will not infer bias b ased on an administrative judge’ s case-related rulings . Vaughn v. Department of the Treasury , 119 M.S.P.R. 605 , ¶ 18 (2013). Here, the appellant’s mere disagreement with the administrative judge’s decision in this case falls well short of the substantial showing required to establish bias. Id. 2 On review, the appellant moves to engage in discovery and to stay the proceedings. We deny these requests. 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 summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for 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 revie w 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 d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 5 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims onl y, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 2 0507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 6 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Cour t 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 Petitione rs and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney w ill accept representation in a given case. 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 re prisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DOWNING_DANIEL_DEAN_CH_0752_18_0073_I_1_FINAL_ORDER_2029084.pdf	2023-05-08	null	CH-0752	NP
3,169	https://www.mspb.gov/decisions/nonprecedential/RYAN_MARILYN_J_CH_0752_16_0485_I_1_FINAL_ORDER_2029242.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MARILYN J. RYAN, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER CH-0752 -16-0485 -I-1 DATE: May 8, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Stephen T. Fieweger , Esquire, Davenport, Iowa, for the appellant. Emily L. Macey , Rock Island, Illinois, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her 30-day suspension appeal as settled . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute o r 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 require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion , and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, sec tion 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for grantin g the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 As properly described in the initial decision, the appellant filed a Board appeal of her 30 -day suspension, effective June 22, 2016. Initial Appeal File (IAF), Tab 21, Initial Decision (ID) at 1. ¶3 Immediately prior to the start of a hearing held on Febru ary 6, 2017, the parties reached a n oral settlement agreement . IAF, Tab 18, Hearing Compact Disc (HCD), Tab 22, Hearing Transcript (HT). During the hearing, t he administrative judge described the following terms of the agreement: the length of the appel lant’s 30-day suspension would be reduced to 14 calendar days ; the remaining 16 days of her suspension would be held in abeyance for 2 years ; if she engaged in misconduct during the 2 -year pe riod, the 30 -day suspension would be reactivated and she waive d her right to appeal that action; she would receive back pay and benefits for the remaining 16 days of her suspension and a refund of health and dental insurance premiums paid during that time period , provided she submit ted payment records ; and she would receive up to $1 ,500 in attorney fees upon the submission of a bill showing that the fees were reasonable . HCD; HT at 3-4. The administrative judge clarified that the agreement wa s not a global settlement of the appellant’s equal e mployment opportunity comp laint and that 3 she agreed to withdraw her Board appeal. HCD; HT at 4. The administrative judge further represented that the agreement wa s voluntary, th e parties understoo d its terms, and it would be accepted into the record. HCD; HT at 4. The administrative judge asked the parties if she accurately covered the terms of the agreement and if they had anything to add or correct . HC D; HT at 4. The representatives of the appellant and the agency agreed that the administrative judge described t he terms , and they did not offer an addition or correction . HCD; HT at 4. The appellant was present at the hearing. HCD; HT at 4. ¶4 The administrative judge thereafter issued an initial decision dismissing the appeal as settled. ID at 1 -2. She found tha t the Board has jurisdiction over the appellant’s timely appeal. ID at 1. She further found that the parties voluntarily and freely entered into a settlement agreement, they understood its terms, and it was lawful on its face. ID at 1 -2. She accepted the agreement into the record for enforcement purposes and acknowledged that one of its terms was the appellant’s withdrawal of her Board appeal. ID at 2. ¶5 The appellant has filed a petition for review requesting the Board to reinstate her appeal and allegi ng that the settlement agreement was not entered into voluntarily nor signed , and that she disagrees with its terms . Petition for Review (PFR) File, Tab 1 at 1. The agency has filed a response asserting that, after the hearing, the parties corresponded r egarding a written settlement agreement but that the appellant has not executed it . PFR File, Tab 3 at 6. However, t he agency argues that the oral settlement agreement is valid and that reinstatement of the appeal is not warranted . Id. at 7-8. The agency has submitted, among other things, evidence of the parties’ correspondence and unsigned drafts of the written agreement .2 Id. at 18 -49. 2 Even assuming these documents are “new” for purposes of 5 C.F.R. § 1201.115 , we find that they do not contain information material to the outcome of this appeal. PFR File, Tab 3 at 10-49. 4 DISCUSSION OF ARGUME NTS ON REVIEW ¶6 Generally, an oral settlement agreement is valid and binding on the part ies even though the appellant has subsequently declined to sign a written document memorializing the terms of the agreement. Schwartz v. Department of Education , 113 M.S.P.R. 601 , ¶ 7 (2010). Even if there is language suggesting that the oral agreement subsequently will be reduced to writing, the agreement is still binding absent a showing that the parties did not intend to be bou nd until a written agreement was signed. Id. ¶7 Here , the administrative judge dismissed the appeal based on the parties’ oral settlement agreement, ID at 1 -2, and the recording of that agreement makes clear that the y reached a binding settlement agreement , HCD; HT at 3-4; see Tiburzi v. Department of Justice , 269 F.3d 1346 , 1353 (Fed. Cir. 2001) (finding that the hearing transcript showed that th e parties understood that a complete and binding agreement had been reached when the administrative judge asked them whether the terms entered into the record constituted all the terms of the settlement agreement , and the parties answered in the affirmativ e and agreed that the agreement would be enforceable by the Board ). The recording contains no statement that only a written and signed agreement would be binding on the parties. HCD; HT ; see Schwartz , 113 M.S.P.R. 601 , ¶ 7. Thus, we find that the oral settlement agreement was the operative agreement in this case , and therefore, the appellant’s dispute on review regarding specific terms of the written agreement is immaterial . PFR File, Tab 1 at 1; see Schwartz , 113 M.S.P.R. 601 , ¶ 7. ¶8 A party may challenge the validity of a settlement agreement if the party believe s that the agreement is unlawful, involuntary, or the result of fraud or mutual mistake. Schwartz , 113 M.S.P.R. 601 , ¶ 8. The party challenging the validity of the settlement agreement bears a “heavy burden.” Id. (quoting Asberr y v. U.S. Postal Service , 692 F.2d 1378 , 1380 (Fed. Cir. 1982) ). 5 ¶9 In her petition for review , the appellant alleges that she did not voluntaril y enter into the settlement agreement and that she was not in agreement with its terms on the date of the hearing . PFR File, Tab 1 at 1. We find that these allegations fail to satisfy her heavy burden of establishing that the settlement agreement is inva lid. See Tiburzi , 269 F.3d at 1355 (finding that the appellant’s unsubstantiated allegation s of coercion were not sufficient to invalidate the oral settlement agreement ). The record shows that , during the hearing, the appellant’s representative agreed with the administrative judge’s description of the terms of the agreement and did not offer an addition or correction when provided an opportunity to do so. HCD; HT at 4 ; see Pacilli v. Department of Veterans Affairs , 113 M.S.P.R. 526 , ¶ 13 (stating that an appellant generally is responsible for the errors of her chosen representative) , aff’d , 404 F. App’x 466 (Fed. Cir. 2010) . Moreover, the appellant, who was present at the hearing, did not voice her objection to the terms of the agreement . HCD; HT at 4 . ¶10 To the extent the appellant believe s that the agency has breached the terms of the oral settlement agreement, she may file a petition for enforcement with the Board’s regional office . 5 C.F.R. § 1201.182 (a). Accordingly, we find that the administrative judge properly dismissed this appeal as settled. NOTI CE 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 appropria te forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which opti on is most appropriate for your situation and the rights described below do not represent a 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 canno t 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 r eview the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judici al review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calend ar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer an d to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 8 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 2 0013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washingto n, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the B oard’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit R eview Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other c ircuit court 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: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	RYAN_MARILYN_J_CH_0752_16_0485_I_1_FINAL_ORDER_2029242.pdf	2023-05-08	null	CH-0752	NP
3,170	https://www.mspb.gov/decisions/nonprecedential/DOWNING_DANIEL_DEAN_CH_0841_18_0074_I_1_FINAL_ORDER_2029318.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DANIEL DEAN DOWNING, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER CH-0841 -18-0074 -I-1 DATE: May 8, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Daniel Dean Downing , La Salle, Michigan, pro se. Alison Pastor , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 The appellant has filed a petition for revie w of the initial decision, which dismissed his retirement appeal for lack of jurisdiction . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is 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). 2 erroneous interpretation of statute or regulation or the erroneous a pplication of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. The refore, we DENY the petition for review and AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant applied for retirem ent benefits under the Federal Employees’ Retirement S ystem (FERS) in September 2017 . Initial Appeal File (IAF), Tab 4 at 1, 3. In October 2017, the Office of Personnel Management (OPM) sent him a personalized booklet describing his monthly benefit and providing other “essential information” regarding his retirement benefits. Id. at 3-18. On November 15, 2017, he filed a Board appeal arguing, among other things, tha t his employing agency and OPM discriminated against him and erred in calculating his se rvice computation date and high -3 average salary.2 IAF, Tab 1. ¶3 In a show cause order, the administrative judge advised the appellant that the Board generally lacks jurisdiction over a retirement matter when OPM has not issued a final decision and ordere d him to file evidence and argument on the 2 The appellant’s initial appeal also alleged that his employing agency forced him to retire, and the Board’s regional office separately docketed an involuntary retirement appeal. IAF, Tab 1, Tab 3 a t 1; Downing v. Department of the Interior , MSPB Docket No. CH-0752 -18-0073 -I-1. 3 jurisdictional issue . IAF, Tab 3 at 1-2. In response, the appellant appeared to argue, among other things, that the personalized booklet constitute d a final decision. IAF, Tabs 4 -5. OPM moved to dismiss the appeal for lack of jurisdiction, stating that the appellant had not raised any issues with OPM prior to filing his Board appeal and that it had not issued an initial or a final decision. IAF, Tab 7. ¶4 Without holding the appellant ’s requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 8, Initial Decision (ID). She found that the appellant had not shown that OPM issued an initial or a final decision or that it improperly denied him such a decision. ID at 4 -5. She further found that, absent an otherwise appealable action, she lacked jurisdiction to consider the appellant’s allegations of age and disability discrimination. ID at 5. ¶5 The appellant has filed a petition for review of the initial decision, and the agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 5.3 DISCUSSION OF ARGUME NTS ON REVIEW ¶6 The Board ’s jurisdiction is limited to those matters over which it has been given j urisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985) . Under 5 U.S.C. § 8461 (e)(1), the Board has jurisdiction to review “[a]n administrative action or order affecting the rights or interests of an individual” under FERS . The Board has recognized the following three situations in which OPM is deemed to have issued an appealable decision under the statute : (1) when OPM issue s a reconsideration decision under 5 C.F.R. § 841.306 ; (2) when OPM issue s an initial decision 3 With this petition for review, the appellant has submitted another copy of the personalized benefits booklet. PFR File, Tab 1 at 4 -26. This document is already in the reco rd and, therefore, is not new and material evidence. Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980); IAF, Tab 4 at 5 -21. 4 without rec onsideration rights under 5 C.F.R. § 841.307 ; and (3) when OPM has refused or improperly failed to issue a final decision. Okello v. Office of Personnel Management , 120 M.S.P.R. 498 , ¶ 14 (2014). ¶7 On review, the appellant argues again that OPM issued a final decision when it provided him the personalized benefits booklet in October 2017 . PFR File, Tab 1 at 1 -2; IAF, Tab 4 at 5 -21. Although the personalized booklet contains OPM’s calculations regarding the appellant’s retirement benefit s, it does not constitute a final decision under OPM’s regulations because it does not contain written notice of the appellant’s right to appeal to the Board. See 5 C.F.R. § 841.306 (e) (providing that a final decision under this subsection must contain, among other things, “n otice of the right to request an appeal provided in § 841.308”), 841.307 (providing that an initial decision without rec onsideration rights under this subsection must “state the right to appeal under § 841.308” ). Thus, as the administrative judge correctl y found, the appellant has not shown that OPM issued a n appealable final decision. ¶8 The appellant does not challenge the administrative judge’s determination that OPM has not improperly failed to issue an initial or a final decision, PFR File, Tab 1, and we discern no basis to disturb this finding. As noted above, the appellant applied for retirement in September 2017 and filed the instant Board appeal in November 2017. IAF, Tabs 1, 4. There is no indication that he contacted OPM regarding the matte rs raised in this appeal before filing it or that OPM refused to issue an initial or a final decision. Accordingly , there is no basis for the Board to assert jurisdiction over this appeal in the absence of a final decision . Cf. Okello , 120 M.S.P.R. 498 , ¶¶ 15-16 (finding Board jurisdiction over a retirement appeal when OPM failed to issue a final decision despite the appellant’s repea ted requests for such a decision over the course of 6 years). ¶9 The appellant additionally argues on review that the administrative judge’s “premature dismissal” of his appeal “raises an issue of possi ble bias.” PFR File, Tab 1 at 5. Ther e is a presumption of honesty and integrity on the part of 5 administrative judges that can only be overcome by a subst antial showing of personal bias, and t he Board will not infer bias b ased on an administrative judge’ s case-related rulings . Vaughn v. Depa rtment of the Treasury , 119 M.S.P.R. 605 , ¶ 18 (2013). Here, the appellant’s mere disagreement with the administrative judge’s decision in this case falls well short of the substantial showing required to establish bias. See id. ¶10 The appellant also moves for discovery of certain correspondenc e between himself, OPM, and his employing agency . PFR F ile, Tab 1 at 5. In a November 20, 2017 acknowledg ment order, the administrative judge notified the parties of their opportunity to engage in discovery and allowed them to initiate discovery within 3 0 days of the order. IAF, Tab 2. There is no indication that the appellant initiated discovery within that timeframe or that he filed a motion to compel regarding any deficient responses from OPM. Thus, having failed to avail himself of the Board’s proc edures below, he is not entitled to engage in discovery or to obtain documents on review . See Sanderson v. Office of Personnel Management , 72 M.S.P.R. 311 , 317 (1996) , aff’d , 129 F.3d 134 (Fed. Cir. 1997) (Table). ¶11 Lastly, the appellant moves that, if the Board finds that OPM has not issued a final decision, we stay proceedings to allow OPM additional time to issue one. PFR File, T ab 1 at 5. As discussed above, however, the Board lacks jurisdiction over this appeal, and we decline to hold it in abeyance pending a final decision by OPM. As correctly noted by the administrative judge, the appellant may file a new Board appeal , if he wishes, once he receives OPM’s final decision . 6 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 t ime limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a pe tition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional info rmation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action inv olves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 8 requirement of prepayment of fees, costs, or other securi ty. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed thro ugh the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your d iscrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washi ngton, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW 12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no chal lenge to the Board’s 9 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review e ither with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 sta tutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently al lows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.as px. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DOWNING_DANIEL_DEAN_CH_0841_18_0074_I_1_FINAL_ORDER_2029318.pdf	2023-05-08	null	CH-0841	NP
3,171	https://www.mspb.gov/decisions/nonprecedential/THOMPSON_TROY_R_PH_1221_18_0001_W_1_FINAL_ORDER_2029330.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TROY R. THOMPSON, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER PH-1221 -18-0001 -W-1 DATE: May 8, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Troy R. Thompson , Bensalem, Pennsylvania, pro se. Lauren Russo , Esquire, Philadelphia, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal as barred by a prior settlement agreement . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of mat erial fact; the initial decision is based 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial dec ision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to dismiss the appeal for lack of jurisdiction on the basis of the settlement agreement and to address the appellant’s argument that the agency breached the agreement insofar as it relates to the enforceability of the waiver provision , we AFFIRM the initial decision. BACKGROUND ¶2 The appellant filed an appeal with the Board alleging that the agency had engaged in whistleblower retaliation. Initial Appeal File (IAF), Tab 1 at 3. He attached to his appeal a copy of a November 23, 2016 notice of a proposed 7-day suspension. Id. at 7. He did not request a hearing. Id. at 2. Thereafter, the agency filed a motion to dismiss the appeal as settled per a July 7, 2017 settlement agreement entered into between the parties in resolution of a United States District Court civil action. IAF, Tab 5. The administrative judge ordered the appellant to show cause why the appeal should not be dismissed pursuant to the settlement agreement. IAF, Tab 6. In response to the order, the appellant filed a motion to e nforce the settlement agreement, alleging that the a gency breached the agreement by not remitting his settlement payment within 45 days. IAF, Tab 7. 3 ¶3 The administrative judge issued an initial decision based on the written record dismissing the appeal as barred by a prior settlement agreement. IAF, Tab 8, Initial Decision (ID). He found that the settlement agreement included a comprehens ive release of claims provision precluding the appellant’s appeal to the Board. ID at 2 -3. ¶4 The appellant timely filed a petiti on for review. Petition for Review (PFR) File, Tab 1. On review, the appellant alleges that the agency breached the settlement agreement by remitting the settlement payment approximately 10 days late and he requests the Board take “corrective action ” against the agency to compensate him for the “financial hardship and physical injury ” he suffered as a result of the delay. Id. at 4. The agency filed a response. PFR File, Tab 3. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 In considering the impact of a prior s ettlement agreement on a pending appeal, the Board will consider the agreement to determine the effect on the Board appeal and any waiver of Board appeal rights, even when, as here, the agreement was reached outside of a Board proceeding. Swidecki v. U.S. Postal Service , 101 M.S.P.R. 110, ¶ 7 (2006) ; Covington v. Department of the Army , 85 M.S.P.R. 612 , ¶¶ 10 -12 (2000) . To show that a waiver of appeal rights in a settlement agreement is unenforcea ble, an appellant must show the following : he complied with the agr eement, but the agency breached it; he did not voluntarily enter into the agreement; or the agreement was the result of fraud or mistake. Covington , 85 M.S.P.R. 612 , ¶ 12. A party may establish breach of the settlement agreement by proving that the other party acted in bad faith or failed to comply with th e agreement in a material way. Williams v. Department of the Treasury , 95 M.S.P.R. 547 , ¶ 9 (2004). When an appellant raises a nonfrivolous factual issue of compliance with such a settlement agreement, the Board must resolve that issue before addressing the scope and applicability of a waiver of appeal rights in the settlement agreement. Covington , 85 M.S.P.R. 612 , ¶ 12. 4 ¶6 Here , the appellant alleges the agency breached the settlement agreement and request s that the Board enforce the agreement. PFR File, Tab 1 at 4; IAF, Tab 7 at 4. The appellant argues that, while he received his se ttlement payment of $157,500.00 from the agency, it was received approximately 10 days late. PFR File, Tab 1 at 4. It is undisputed that the agency issued a check to the appellant’s attorney on August 24, 2017. PFR File, Tab 3 at 8 . Therefore , even if the appellant’s allegation is true, the minor delay in remitting payment is insufficient to establish a material breach of the settlement agreement. See Lutz v. U.S. Postal Service , 485 F.3d 1377 , 1381 (Fed. Cir. 2007) (“A breach is material when it relates to a matter of vital importance or goes to the essence of the contract” (quoting Thomas v. Department of Housing and Urban Development , 124 F.3d 1439 , 1442 (Fed. Cir. 1997) )); see also Burks v. Department of the Interior , 93 M.S.P.R. 94 , ¶ 8 (200 2) (finding that a minimal delay in fulfilling requirements of a settlement agreement is not a material breach), aff’d , 85 F. App’x 217 (Fed. Cir. 2004). Thus, the appellant has not alleged facts that, if proven, would show a material breach of the settlement agreement.2 ¶7 For a waiver of appeal rights to be enforceable, its terms must also be comprehensive, freely made, and fair, and execution of the waiver did not result from agency duress or bad faith. Swidecki , 101 M.S.P.R. 110, ¶ 17. I n deciding whether the appellant freely and voluntarily entered into the settlement agreement, the Board will consider whether he was represented, whether he has demonstrated that he was mentally impaired when the agreement was reached, 2 Moreover, as the administrative judge correctly found, this settlement agreement was entered into in a case before the United States District Court, not in a Board appeal. ID at 3. Thus, the Boar d may not address the appellant’s allegation that the agency breached the settlement agreement and take “corrective action” against the agency because the Board has no authority to enforce a settlement agreement reached in another forum. Johnson v. U.S. P ostal Service , 108 M.S.P.R. 502 , ¶ 8 n.5 (2008), aff’d , 315 F. App’x 274 (Fed. Cir. 2009); see S widecki , 101 M.S.P.R. 110 , ¶ 26. 5 and whether he has otherwise shown that he was unable to understand the nature of the settlement agreement fully. Id. Here, as noted by the administrative judge, the appellant was represented by his attorney, and both the appellant and his attorney signed the settlement ag reement. IAF, Tab 5 at 10; ID at 2. Such representation is significant in determining the validity of a waiver of appeal rights. Clede v. Department of the Air Force , 72 M.S.P.R. 279, 285 (1996), aff’d , 113 F.3d 1257 (Fed. Cir. 1997) (Table). The agreement also specifically provided, and the appellant has not alleged otherwise, that he was mentally competent and entered into the agreement voluntarily, without duress or pressures. IAF, Tab 5 at 8. ¶8 Because the appellant has not show n that the agency breached the settlement agreement or that it was invalid , we next address the scope and applicability of the waiver of appeal rights in the agreement. See Rhett v. U.S. Postal Service , 113 M.S.P.R. 178 , ¶ 17 (2010); Covington , 85 M.S.P.R. 612 , ¶ 12. We agree with the administrative judge and find that the July 6, 2017 settlement agreement includes an explicit waiver of the a ppellant’s Board appeal rights. Here, the agreement provided that the parties : [w]ish to . . . settle and compromise fully any and all claims and issues that have been raised, or could have been raised, arising out of [the appellant’s] employment with the [ agency ] prior to the execution of this Agreement. IAF, Tab 5 at 4. Moreove r, the agreement states that the appellant: [r]eleases and forever discharges . . . [the agency], their past and present respective officers, agents, and employees, from any and all claims, demands, suits, rights, damages, union charges, administrative rem edies (including but not limited to Merit Systems Protection Board or Equal Employment Opportunity Commission filings), and causes of action and grievances of any and every kind, nature, and character, known or unknown, which [the appellant] may now have o r has ever had against the [agency], or any of its officers, agents, and employees, which arose in whole or in part from [the appellant’s] employment relationship with the [agency]. 6 Id. at 5-6. ¶9 This language constitutes a clear and unequivocal waiver of the appellant’s right to appeal the alleged personnel actions at issue in his appeal. IAF, Tab 1 at 5. In addition, i n exchange for his voluntary waiver of appeal rights, the appellant received consideration from the agency in the form of a lump sum payment of $157,500.00. See Swidecki , 101 M.S.P.R. 110 , ¶ 23 ( explaining that, for a waiver of Board appeal rights to be enforceable, the agency must provide some consideration to the appellant in exchange for the waiver); IAF, Tab 5 at 5. ¶10 Because, for the reasons noted above, the appellant has not shown that this waiver is unenfor ceable, we conclude that the Board lacks jurisdiction over his appeal on the basis of the settlement agreement. See Rhett , 113 M.S.P.R. 178 , ¶ 17. 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 f ile. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate f or your situation an d the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices o f review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the fo llowing address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 8 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, th e address of the EEOC is: 9 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices des cribed in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 m ust 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 a ppeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower rep risal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If yo u are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWeb sites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	THOMPSON_TROY_R_PH_1221_18_0001_W_1_FINAL_ORDER_2029330.pdf	2023-05-08	null	PH-1221	NP
3,172	https://www.mspb.gov/decisions/nonprecedential/WALKER_LARRY_E_DA_0752_20_0334_I_2_FINAL_ORDER_2028542.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LARRY E. WALKER, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DA-0752 -20-0334 -I-2 DATE: May 5, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael Kleinman , Esquire, Houston, Texas, for the appellant. Olga Sinquefield , Esquire, Fort Bliss , Texas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which reversed the agency’s chapter 75 removal action and denied the appellant’s 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 affirmative defenses . For the reasons set forth below, the appellant’s petition for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g). BACKGROUND ¶2 Effective April 6, 2020, the agency removed the appellant from his position as a GS -0679 -05 Medical Support Assistant based on the charge of inability to work a regular schedule. Walker v. Department of the Army , MSPB Docket No. DA-0752 -20-0334 -I-1, Initial Appeal File (IAF), Tab 1 at 7. The appellant timely appealed his removal to the Board. Id. at 4. While his case was pending, the appellant requested a stay of case processing, claiming that he did not have the capacity to participate in his appeal due to pressing family matters and his own medical issues. IAF, Tab 37 , Initial Decision (ID) at 2. The administrative judge ultimately dismissed the appeal without prejudice and instructed the appellant to refile no later than April 21, 2021. ID at 4. ¶3 The appellant timely refiled his appeal , and following a hearing, the administrative judge issued an initial decision dated September 30, 2021, reversing the agency’s removal action because the agency conceded it could not meet all the elements required of its charge. Walker v. Department of th e Army , MSPB Docket No. DA-0752 -20-0334 -I-2, Refiled Appeal File, Tab 20, Refiled Initial Decision ( RID) at 11. The administrative judge also concluded that the appellant failed to prove his affirmative defenses of disability discrimination based on dispa rate treatment and failure to provide a reasonable accommodation. RID at 14-19. The administrative judge notified the appellant that the initial decision would become final on November 4, 2021, unless a petition for review was filed by that date. RID at 22. ¶4 The appellant filed a petition for review on December 17, 2021. Petition for Review (PFR) File, Tab 1. The agency did not file a response. 3 DISCUSSION OF ARGUME NTS ON REVIEW ¶5 The Board’s regulations require that a petition for review must be filed within 35 days after the issuance of the initial decision, or, if the petitioner shows that he received the initial decision more than 5 days after the date of the issuance, within 30 days after the date he received the initial decision. 5 C.F.R. § 1201.114 (e). Here, the initial decision was issued on September 30, 2021, and the appellant acknowledges that he received it that same day. RID at 1; PFR File, Tab 1 at 3. Thus, the appella nt’s petition for review is untimely by over 1 month. ¶6 The Board will waive the time limit for filing a petition for review only upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114 (g). To establish good cause for the untimely filing of an appeal, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). To determine whether an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of his excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misf ortune which similarly shows a causal relationship to his inability to timely file his petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62–63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table). ¶7 When the appellant filed his petition for review via e -Appeal online, he was notified of his burden to establish good cause for the untimely filing. PFR File, Tab 1 at 3. I n response, he argues that the Board should find good cause for his untimely filing because his former counsel abandoned him and because he was “powerless” without any communication or contact with his counsel. Id. at 4. In addition, he alleges that his former counsel, the agency counsel, and the administrative judge were biased against him , and he takes issue with conduct by 4 all three throughout his appeal. Id. He also submits copies of emails with his former counsel. Id. at 6-19. ¶8 We find that the a ppellant has not demonstrated good cause for the untimely filing of his petition for review. The appellant’s more than 1 -month delay in filing his petition is significant. See, e.g. , Dow v. Department of Homeland Security , 109 M.S.P.R. 633 , ¶ 8 (2008) (finding a delay of more than 1 month to be significant, despite an appellant ’s pro se status). In addition, the appellant’s argument that he was left “powerless” by his former counsel’s failure to communicate with him is unpersuasive. The Board has long held that an appellant is responsible for the actions or inaction of his chosen representative , and inadequate representation does not constitute good cause for a waiver of the Board’s filing time limits. Young v. Department of Labor , 69 M.S.P.R. 695 , 697 (1996) ; see also Reynolds v. Department of the Army , 23 M.S.P.R. 269 , 270 (1984) (finding that any commu nication failure between the appellant and his attorney would not constitute a valid reason for untimely filing) (citing Sofio v. Internal Revenue Service , 7 M.S.P.R. 667 , 670 (1981) ), aff’d , 765 F.2d 162 (Fed. Cir. 1985) (Table) . The appellant ultimately remained personally responsible for the prosecution of his appeal. See Barbour v. Defense Logistics Agency , 29 M.S.P.R. 570, 571 (1986). Althoug h he complains that he essentially “had no representative,” and notes that he had begun to seek new counsel after the initial decision was issued , the Board has held that an appellant’s lack of representation or an inability to obtain representation also fails to establish good cause for an untimely filing. PFR File, Tab 1 at 4; see McCoy v. U.S. Postal Service , 112 M.S.P.R. 256 , ¶ 8 (2009), aff’d , 360 F. App’x 132 (Fed. Cir. 2010). Moreover, the appellant ultimately filed the petition for review himself, and he does not explain why he could not have done so by the deadline stated in the initial decision. The appellant has not shown that he exercised due diligence or ordinary prudence under the particular circumstances of the case. 5 ¶9 The appellant also argues that his former counsel, the agency counsel, and the administrative judge treated him with bias, tried to coerce him into a settlement, and otherwise violated his civil rights. PFR File, Tab 1 at 4. Yet the appellant fails to explain how any of this alleged conduct that took place during his initial appeal, before the administrative judge issued the initial decision, prevented h im from later timely filing his petition for review. The appellant also submits copies of emails with his petition, in support of his argument that good cause exists for his untimely filing. Id. at 6-19. However, the emails that the appellant submits si mply show discussions with his former counsel about case strategy and logistics prior to the hearing or are messages from the appellant to himself or his spouse with no text. Although in one email the appellant informs his former counsel that he is dissat isfied with the handling of his case, it was sent more than 2 months before the hearing and, in fact, almost all the emails the appellant submitted are dated prior to the initial decision’s issuance. Id. at 10. Thus, this evidence also fails to show why the appellant was unable to time ly file a petition for review. ¶10 Accordingly, we dismiss the petition for review as untimely filed. This is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review. The initial decision remains the final decision of the Board regarding the agency’s removal action. ORDER ¶11 We ORDER the agency to cancel the agency’s removal action and to restore the appellant effective April 6, 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. ¶12 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this 6 decision. We ORDER the appellant to cooperate in good faith in the agen cy’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 oth er benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶13 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out th e Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶14 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 a gency 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 a gency. 5 C.F.R. § 1201.182 (a). ¶15 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Account ing 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. 7 NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failu re to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have quest ions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must fil e a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for 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. 8 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washingt on, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 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 9 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial revi ew pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 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 Fed eral Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W . Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” wh ich is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb. gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 4 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representat ion in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov /Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx. NOTE: Attorneys’ fees or other non -wage payments (such as d amages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remed y Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job under taken during the back pay period to replace federal employment. Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuit y payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave t hat exceeds the annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of 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 unabl e 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 conversio n, agency must attach Computation Worksheet by Pay Period and required data in 1 -7 above. The following information must be included on AD -343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a. Must provide same data as in 2, a -g above. b. Prior to conversion computation must be provided. c. Lump Sum amount of Settlement, and if taxable or non -taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Pe rsonnel Operations at 504 -255-4630.	WALKER_LARRY_E_DA_0752_20_0334_I_2_FINAL_ORDER_2028542.pdf	2023-05-05	null	DA-0752	NP
3,173	https://www.mspb.gov/decisions/nonprecedential/SPALDING_ZERINA_CB_1208_22_0016_U_7_ORDER_ON_STAY_EXTENSION_REQUEST_2028579.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SPECIAL COUNSEL EX REL. ZERINA SPALD ING, Petitioner, v. DEPARTMENT OF THE TR EASURY, Agency. DOCKET NUMBER CB-1208 -22-0016 -U-7 DATE: May 5, 2023 THIS STAY ORDER IS N ONPRECEDENTIAL1 Julie R. Figueira , Esquire, Malvina Winston , Esquire, and Paul David Metcalf, Jr. , Esquire, Washington, D.C., for the petitioner. Corlie McCormick, Jr. , Esquire, Crofton, Maryland, for the relator . Elizabeth C. Young , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 ORDER ON STAY EXTENSION REQUEST ¶1 Pursuant to 5 U.S.C. § 1214 (b)(1) (B), the Office of Special Counsel (OSC) requests an extension of the previously granted stay of the proposed removal issued by the Department of the Treasury (agency) while the parties engage in settlement negotiations and while OSC completes its investigation and legal review of the matter and determine s whether to seek corrective action. For the reasons discussed below, OSC’s request is GRANTED. BACKGROUND ¶2 On July 28, 2022, Member Limon granted OSC’s request for a 45 -day stay of the proposed removal of Ms. Spalding based on a charge of misconduct. Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket No. CB -1208 -22-0016 -U-1, Stay Request File (U -1 SRF), Order on Stay Request (July 28, 2022). The initial stay was granted to permit OSC to conduct an investigation into wheth er the agency’s proposal to remove Ms. Spalding was the result of a prohibited personnel practice under 5 U.S.C. § 2302 (b)(1)(A). Id., ¶ 6. OSC subsequently requested, and the Board granted, mult iple extensions of the stay.2 2 By order dated September 9, 2022, the Board extended the stay through November 9, 2022. Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket No. CB -1208 -22-0016 -U-2, Stay Request File (U -2 SRF), Order on Stay Extension Request (Sept. 9, 2022). By order dated November 9, 2022, the Board extended the stay through January 8, 2023. Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket No. CB 1208 -22-0016 - U-3, Stay Request File (U -3 SRF), Order on Stay Extension Request (Nov. 9, 2022). By order dated December 27, 2022, the Board extended the stay through January 23, 2023. Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket No. CB - 1208 -22-0016 -U-4, Stay Request File (U -4 SRF), Order on Stay Extension Request (Dec. 27, 2022). By order dated January 23, 2023, the Board extended the stay through March 24, 2023. Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket No. CB -1208 -22-0016 -U-5, Stay Request File (U -5 SRF), Order on Stay Extension Request (Jan . 23, 2023). By order dated March 21, 2023, the Board extended the stay through May 8, 2023. Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket No. CB -1208 -22-0016 -U-6, Stay Request 3 ¶3 The current stay order is in effect through May 8, 2023. Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket No. CB -1208 - 22-0016 -U-6, Order on Stay Extension Request, ¶ 13 (Mar. 21, 2023) . On April 24, 2023, OSC and the agency filed a joint request to extend the stay through June 22, 2023. Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket No. CB -1208 -22-0016 -U-7, Stay Request File, Tab 1. In doing so, they indi cate that this extension will accommodate settlement efforts between the agency and Ms. Spalding. Id. at 2. At the same time, the parties indicate that OSC will continue to prepare a request for corrective action in case the agency and Ms. Spalding are u nable to reach a settlement. Id. at 3. OSC and the agency request that the following deadlines should apply to extend the stay order: (1) the existing stay should be extended through and including June 22, 2023 ; (2) any request for an additional extensi on by OSC should be due on or before June 7, 2023 ; and (3) the agency’s response to any extension request should be due on or before June 14, 2023. Id. ANALYSIS ¶4 A stay granted pursuant to 5 U.S.C. § 1214 (b)(1) is issued to maintain the status quo ante while OSC and the agency involved resolve the disputed matter. Special Counsel v. Department of Transportation , 74 M.S.P.R. 155 , 157 (1997). The purpose of the stay is to minimize the consequences of an alleged prohibited personnel practice. Id. In evaluating a request for an extension of a stay, the Board will review the rec ord in the light most favorable to OSC and will grant a stay extension request if OSC’s prohibited personnel practice claim is not clearly unreasonable. Id. at 158. The Board may grant the extension for any period that it considers appropriate. 5 U.S.C. § 1214 (b)(1)(B)(i); Special Counsel ex rel. File (U -6 SRF), Order on Stay Extension Request ( Mar. 21, 2023) . Although the agency did not oppose one of the extension requests, it opposed the others and the initial stay r equest. Compare U-1 SRF, Tab 6; U -2 SRF, Tab 3; U -3 SRF, Tab 2; U -5 SRF, Tab 2; U -6 SRF, Tab 3, with U-4 SRF Tab 1. 4 Waddell v. Department of Justice , 105 M.S.P.R. 208 , ¶¶ 3, 5 (2007) (noting that a separate determination must be made on the length of the requested stay). Under the circumstances, and in light of the fact that the agency consents to the extension, we find it appropriate to extend the stay through June 22, 2023. ORDER ¶5 Pursuant to 5 U.S.C. § 1214 (b)(1)(B), a 45 -day extension of the stay is GRANTED, and it is ORDERED as follows : (1) The stay issued on July 28, 2022, is extended t hrough and including June 22, 2023, on the terms and conditions set forth in that Order ; (2) The agency shall not effect any changes in Ms. Spalding’s duties or responsibilities that are inconsistent with her salary or grade level, or impose upon her any requi rement 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 June 7, 2023 ; and 5 (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 June 14, 2023 . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SPALDING_ZERINA_CB_1208_22_0016_U_7_ORDER_ON_STAY_EXTENSION_REQUEST_2028579.pdf	2023-05-05	null	CB-1208	NP
3,174	https://www.mspb.gov/decisions/nonprecedential/WIEGAND_BRANDON_T_DC_300A_21_0606_I_1_FINAL_ORDER_2028595.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BRANDON T. WIEGAND, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DC-300A -21-0606 -I-1 DATE: May 5, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sara A. Austin , Esquire, York, Pennsylvania, for the appellant. Scott Gronsky , Esquire, Fort Benning, Georgia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has fil ed a petition for review of the initial decision, which dismissed for lack of jurisdiction this appeal challenging the appellant’s nonselections . On petition for review, the appellant has reiterated the same arguments he presented below, which generally d escribe a variety of complaints 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required t o follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 about the agency selecting other individuals for certain vacancies. For example, the appellant suggests that the agency engaged in an improper employment practice when selecting officials looked beyond his application mater ials and considered their own personal knowledge about the appellant’s work history as they made their selections for vacancies . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous f indings 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 t he initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argu ment is available that, despite the petitioner’s due di ligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute , the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of availabl e appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise whic h 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 t heir jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may resul t in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropri ate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeal s for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S . Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 4 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases invo lving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtai n judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you h ave a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 5 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for re view to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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, si gned into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 6 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circui t 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our we bsite at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorne y will accept representation in a given case. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	WIEGAND_BRANDON_T_DC_300A_21_0606_I_1_FINAL_ORDER_2028595.pdf	2023-05-05	null	DC-300A	NP
3,175	https://www.mspb.gov/decisions/nonprecedential/BLAIR_ASHAKI_DC_0714_20_0632_I_1_FINAL_ORDER_2028601.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ASHAKI BLAIR, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DC-0714 -20-0632 -I-1 DATE: May 5, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ashaki Blair , Washington, D.C., pro se. Erin Brady Rega , Esquire, Winston Salem, North Carolina, for the agency. BEFORE Cathy A. Harris, Vice Ch airman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has petition ed for review of the initial deci sion in this appeal. For the reasons set forth below, we DISMISS the appeal as settled. ¶2 After the appellant filed her petition for review, the agency submitted a document titled “ SETTLEMENT AGREEMENT, ” signed and dated by the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 appellant on March 21, 2023 , and by the agency on March 22, 2023. Petition for Review ( PFR ) File, Tab 3. The document provides, among other things, for the withdrawal of the present appeal. Id. at 4. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreemen t, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R . 146, 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it . See Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 10 -11 (2017). ¶4 Here, we find that the part ies have entered into a settlement agreement , understand its terms, and intend for the agreement to be entered into the record for enforcement by the Board. PFR File, Tab 3. Accordingly, we find that dismissing the appeal with prejudice to refiling (i.e. , the parties normally may not refile this appeal) is appropriate under these circumstances. In addition, we find that the agreement is lawful on its face and freely entered into, id., and we accept the settlement agreement into the record for enforcement purposes. ¶5 This is the final decision of the Merit Systems P rotection Board in this appeal. 5 C.F.R. § 1201.113 (c). 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 a ppeal. 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). 3 NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, th e nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available ap peal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that f orum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise w hich option is most appropriate in any matter. 4 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receive s this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origi n, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and 5 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 6 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 Fede ral Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Boar d appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BLAIR_ASHAKI_DC_0714_20_0632_I_1_FINAL_ORDER_2028601.pdf	2023-05-05	null	DC-0714	NP
3,176	https://www.mspb.gov/decisions/nonprecedential/GROENLEER_ARISA_SF_0752_16_0028_I_2_FINAL_ORDER_2028634.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ARISA GROENLEER, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER SF-0752 -16-0028 -I-2 DATE: May 5, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Daphne Barbee , Esquire, Honolulu, Hawaii, for the appellant. Kathryn A. Good , Esquire, Quantico, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained her removal . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneou s application of the law to the facts of the case; the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error af fected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The following facts, as furthe r detailed in the initial decision, are not materially disputed. The appellant held an Intelligence Specialist position with the Naval Crimin al Investigative Service from September 2008, until her removal in May 2015. Groenleer v. Department of the Navy , MSPB Docket No. SF-0752 - 16-0028 -I-2, Refiled Appeal File (RAF), Tab 67, Initial Decision (ID) at 3. For fiscal years 2010 and 2011, the agency rated her pe rformance as successful. ID at 4. During fiscal year 2012, the agency reassigned her to the Hawai i Field Office and again rated her performance as successful. Id. Around the time of that performance appraisal, the appellant received a new first -level supervisor. ID at 5. About 6 months later, in April 2013, this new supervisor issued the appellant a performance advisory letter (PAL), warning of performance deficiencies. Id. ¶3 For fiscal year 2013, the first year the appellant was evaluated under new performance standards, the agency rated her performance as minimally successful. Id. Thereafter, in November 2013, the appellant’s supervisor issued another PAL, once again identifying performance deficiencies, and warning that 3 she could be placed on a performance improvement period (PIP) if her performance did not improve. ID at 6. ¶4 In January 2014, the agency placed the appellant on a PIP. Id. In September 2014, the agency informed the appellant that she failed the PIP. ID at 7. The agency proposed her removal for unacceptable PIP performance in December 2014, and then effectuated her removal in May 2015. ID at 7 -8. ¶5 The appellant filed the timely Board appeal that is currently before us, challenging her removal.2 Groenleer v. Department of the Navy , MSPB Docket No. SF -0752 -16-0028 -I-1, Initial Appeal File (IAF), Tab 1. The administrative judge dismissed the appeal, without prejudice, for refiling at a later date so the appellant’s attorney could obtain the interim security clearance necessary for viewing pertinent classified materials and agency classification authorities could finish their doc ument review. IAF, Tab 44. Ultimately, the administrative judge developed the record and held the requested hearing before sustaining the appellant’s removal under chapter 75.3 ID at 3. ¶6 The administrative judge first provided a lengthy discussion of the evidence relevant to the pre -PIP period, ID at 12 -20, and the PIP period, ID at 20 -30. Next, he found that although it was not required in this chapter 75 removal, the agency provided the appellant with a reasonable opportunity to improve. ID at 30-32. For the agency’s lone charge of “unacceptable performance during 2 An administrative judge dismissed a prior Board appeal challenging her removal as premature because the appellant had a pending equal employment opportunity (EEO) complaint. See Groenleer v. Department of the Navy , MSPB Docket No. SF -0432 -15- 0582 -I-1, Initial Appeal File, Tab 11. 3 We note that the administrative judge sealed portions of the record and held portions of the hearing in a classified setting, to accommodate security and classification requirements. E.g., IAF, Tab 28 at 4; ID at 2. After completing his initial decision, the administrative judge had it screened by a security manager for the respondent agency to ensure it does not contain classified or otherwise sensitive materials. ID at 3 n.2. Alth ough the portions of the record containing classified and Special Access Program material are available at a secure location, we did not find reviewing them necessary to render the instant decision. 4 opportunity to improve performance period,” the administrative judge sustained the first specification, ID at 32 -60, but not the second or third, ID at 60 -61. He then denied each of the app ellant’s affirmative defenses. He found no merit to the claim that her March 2013 grievance was protected under Title VII. ID at 63-70. The administrative judge also found that while the appellant did engage in some protected equal employment opportunit y (EEO) activity, she failed to establish that it was a motivating factor in her removal. ID at 70 -75. He further found that the appellant failed to establish race or sex discrimination, ID at 76 -84, or any due process violation, ID at 84 -87. Finally, t he administrative judge found that the agency established the requisite nexus, ID at 11 -12, and removal was a reasonable penalty, ID at 87 -93. ¶7 The appellant has filed a petition for review. Groenleer v. Department of the Navy , MSPB Docket No. SF -0752 -16-0028 -I-2, Petition for Review (PFR) File, Tab 1. The agency has filed a response , and the appellant has replied.4 PFR File, Tabs 5 -6.5 4 In her petition, the appellant included a lengthy sta tement of facts that is filled with assertions in support of her position. PFR File, Tab 1 at 5 -15. For example, without identifying any evidentiary support, the statement of facts asserts that the appellant began to experience a hostile work environment after her reassignment to the Hawaii Field Office and a new supervisor. Id. at 5. In her reply brief, the appellant asserts that we should deem her statement of facts true because the agency did not explicitly refute it. PFR File, Tab 6 at 4. We disag ree. See Hendricks v. Department of the Navy , 69 M.S.P.R. 163 , 168 (1995) (recognizing that t he statements of a party ’s repr esentative in a pleading do not constitute evidence). 5 The appellant also requested permission to submit another pleading that would address Santos v. National Aeronautics and Space Administration , 990 F.3d 1355 (Fed. Cir. 2021) and Lee v. Department of Veterans Affairs , 2022 MSPB 11 , ¶ 16, because those decisions were issued after the appellant filed her petition for review but while that petition was pending before the Board. PFR File, Tab 8. This request is denied. Santos and Lee do not require a different result because they involved the standards for a chapter 43 appeal, while this appeal is governed by the standards of chapter 75. E.g., RAF, Tab 8 at 8, 50 -52, Tab 44 at 8 -9, Tab 49 at 11, 15 -16; ID at 3, 9 n.7. 5 ANALYSIS The appellant has failed to establish that the administrative judge committed any procedural error in adjudi cating this appeal. Deposition ¶8 During the adjudication of this appeal, the agency deposed the appellant over 2 days in a secure facility. RAF, Tab 57 at 10. In the middle of the first day, the parties separately emailed the administrative judge about a d ispute. Agency counsel asked the administrative judge to hold a call with all relevant parties, because the appellant was refusing to answer some questions and left for an hour, shortly after the deposition started. Id. Appellant’s counsel disagreed with that characterization. Id. at 11. Among other things, appellant’s counsel alleged that she and the appellant had simply attempted to leave for lunch, but agency counsel “attempted to illegally kidnap” them by blocking their exit. Id. Appellant’s counsel requested a protective order and both parties requested sanctions against their counterpart. E.g., RAF, Tabs 63 -65. The administrative judge denied the motions, finding that the agency did not engage in any wrongful conduct and the appellant’s claim of attempted ki dnapping was hyperbolic. ID at 8 n.6. ¶9 On review, the appellant has raised this matter again. PFR File, Tab 1 at 31-33. She argues that the administrative judge abused his discretion in denying her request for a protecti ve order or sanctions and finding no fault in the behavior of agency counsel at the deposition. Id. at 32 -33. According to appellant’s counsel her use of the term “kidnapping” was not hyperbolic. Id. at 33. ¶10 While appellant’s counsel would have us believ e that she and the appellant were nearly kidnapped, the record is not at all supportive. The agency presented declarations under penalty of perjury from several witnesses, each disputing the claim. RAF, Tab 63 at 6 -11. Those declarations generally descr ibe the parties disagreeing about lunch scheduling, but the appellant and her representative 6 leaving when they wanted, with the escort necessitated by the deposition location —a secure facility. Id. Not even the declaration of the appellant genuinely corr oborates the claim of an attempted kidnapping; it instead suggests the parties had a contentious disagreement about scheduling, which ended when the appellant and her representative simply walked past agency counsel and out the door. RAF, Tab 64 at 10 -11. The parties appear to agree that, after the lunch break, they finish ed out that deposition day and another, with some guidance by the administrative judge and without further incident. E.g., RAF, Tab 63 at 6 -7; PFR File, Tab 1 at 32. ¶11 In her petition, appellant’s counsel also suggests that the aforementioned email from agency counsel to the administrative judge was an improper ex parte communication. E.g., PFR File, Tab 1 at 31 -32; RAF, Tab 57 at 10 -11. But we find nothing improper about the email, wh ich involved scheduling a call for all parties to settle a deposition dispute, not the merits of this appeal. See 5 C.F.R. § 1201.101 (recognizing that not all ex parte communications a re prohibited; only those that involve the merits of the case or otherwise violate rules requiring written submissions are prohibited). Under these circumstances, we find the appellant’s arguments surrounding her deposition meritless. See Pumphrey v. Department of Defense , 122 M.S.P.R. 186 , ¶ 14 (2015) (discussing the limited circumstances in which an administrative judge is authorized to issue a protective order); Leseman v. Department of the Army , 122 M.S.P.R. 139 , ¶ 6 (2015) (recognizing that the Boa rd will not reverse an administrative judge’s determination regarding sanctions absent an abuse of discretion). Denied witnesses ¶12 The appellant next argues that the administrative judge improperly denied several witnesses she requested. PFR File, Tab 1 at 27-28. The record shows that he denied two witnesses because their work with the appellant was too remote in 7 time and four others because he did not find that their proffered testimony would be helpful. RAF, Tab 50 at 5. ¶13 On review, the appellant reasserts that these witnesses, if permitted to testify, would have established that she was a good worker. PFR File, Tab 1 at 27. However, the record already contained written statements from these witnesses about her past performance. IAF, Tab 8 at 81 , 85 -86, 90, 95 -96. Moreover, the appellant appears to concede that these individuals did not work with her throughout the relevant period —when she was working under the PIP. PFR File, Tab 1 at 27. Therefore, we are not persuaded that the administrative judge abused his discretion in disallowing those witnesses. An administrative judge has broad discretion to control the course of the hearing, including wide discretion to exc lude witnesses when it has not been shown that their testimony would be relevan t, material, and nonrepetitious. Franco v. U.S. Postal Service , 27 M.S.P.R. 322 , 325 (1985). The administrative judge properly sustain ed the agency’s charge. ¶14 The agency proposed and effectuated the appellant’s removal based on a single charge of “unacceptable performance during opportunity to improve performance period,” with three underlying specifications. RAF, Tab 49 at 4 -10; IAF, Ta b 8 at 33 -53. In short, each specification concerned a specific performance objective —production, intelligence cycle feedback, and ad hoc. RAF, Tab 49 at 6 -8. The administrative judge found that the agency proved specification 1 (production). ID at 33 -60. He did not sustain specifications 2 (intelligence cycle feedback) or 3 (ad hoc), because he found that the PIP imposed a higher level of performance than was required by her corresponding performance objectives. ID at 60 -61. ¶15 Though further detailed in the proposal and decision letters, the production specification that remains described how the a gency assigned the appellant 55 tasks during her PIP, but she failed to satisfactorily complete 80% of them, which was required to be minimally successful. RAF, Tab 49 at 5 -7; IAF, Tab 8 8 at 36. According to the agency, the appellant satisfactorily completed only 20 of the 55 tasks, or 37% of them. RAF, Tab 49 at 6 -7; IAF, Tab 8 at 36. ¶16 The administrative judge conducted an extensive evaluation of the tasks on which the agency relied. ID at 33 -60. He found that the agency failed to meet its burden for nine of them, ID at 33 -34, but proved that the appellant failed to satisfactorily complete the remaining tasks , ID at 34 -60. Accordingly, the administr ative judge concluded that the satisfactory completion rate established by the record was 29 of 55 tasks, or approximately 53%, which was better than alleged but well below the 80% rate required under the PIP to be minimally successful. ID at 34; IAF, Tab 8 at 290 -95. ¶17 On review, the appellant primarily challenges the production specification on the basis of the applicable standards. PFR File, Tab 1 at 16 -21. According to the appellant, the agency did not provide objective standards, and she was unsure what the agency wanted from her work products. Id. at 16 -17. We are not persuaded by this contention . ¶18 In its January 2014 PIP letter, the agency explained the production requirement at issue by detailing what was necessary for an acceptable rating, what constituted performance deficiencies, and the improvement that was required of the appellant. IAF, Tab 8 at 276 -77. The agency then sent the appellant to a 3 -week refresher training course. Id. at 286, 309. Immediately after her return, the appellant’s chain of command met with her to provide detailed instructions, assignments, and another explanation of what constituted acceptable performance. Id. at 290 -92. In the days that followed, the agency amended the PIP to clarify what was necessary for the a ppellant to perform acceptably and provided a complete “to do” list. Id. at 290-306. Among other things, the amended PIP clarified that at least 80% of her work products must be satisfactory, i.e., having no major errors and requiring minimal edits. Id. at 292-93. The agency also provided relevant definitions. For example, it defined a work product as requiring minimal edits “if it contains 1) three or less 9 grammatical errors per page; and usually contains 2) most logical headers and context; 3) clear sentence structure throughout the product, and 4) graphics that support the text or are explained.” Id. at 293. Over the subsequent months, throughout the remainder of the PIP, the appellant’s first - and second -level supervisor s repeatedly held meetings to provide the appellant feedback and guidance. IAF, Tab 8 at 41 n.4. These facts, among others, demonstrate that there is no merit to the appellant’s allegation that her performance standard was impermissibly subjective or left her unsure what the agency wanted. Cf. Melnick v. Department of Housing and Urban Development , 42 M.S.P.R. 93 , 98-99 (1989) (recognizi ng, in a chapter 43 appeal, that performance standards may be more or less objective depending upon the job measured; the fact that performance standards may call for a certain amount of subjective judgment from an appellant’s supervisor does not necessari ly invalidate them), aff’d , 899 F.2d 1228 (Fed. Cir. 1990). ¶19 Concerning her performance, the appellant also asserts that the agency did not pre sent data about the work products of coworkers, PFR File, Tab 1 at 18 -19, but she has failed to identify any requirement that the agency do so and we are aware of none.6 To the extent that the appellant may be implying that such data 6 The appellan t also asserts that the administrative judge erred in denying her motion to compel discovery of her coworker’s work products from 2014 -2015. PFR File, Tab 1 at 26; IAF, Tab 10 at 14 , Tab 11 at 4 -5. However, after reviewing the pleadings she referenced, w e are unable to locate any argument about that discovery request in her motion to compel or the administrative judge’s ruling. Compare IAF, Tab 10 at 4-8, 42-48, with IAF, Tab 28 at 1 -2. The motion did include her exhaustive discovery request, IAF, Tab 1 0 at 10 -33, and that request did seek a coworker’s work products, id. at 14. Yet the crux of her motion to compel involved the appellant’s own work products and the agency’s redactions of them. Id. at 6-8, 42 -48. There appears to be no argument about di scovery of her coworker’s work products. Moreover, even if the motion to compel did encompass the request for her coworker’s work products from 2014 -2015, we find no basis for concluding that the agency erred by refusing the request because, inter alia, t he materials were classified and the request was overly broad, nor do we find any abuse of discretion on the part of the administrative judge. See Vaughn v. Department of the Treasury , 119 M.S.P.R. 605 , ¶ 15 (2013) (recognizing an administrative judge’s broad discretion in ruling on discovery matters); 5 C.F.R. 10 was necessary to esta blish that the agency’s standards were reasonable, we disagree . The appellant’s bare assertion that the agency should have provided more evidence about her peers does not provide a basis for disturbing the administrative judge’s findings about the reasona bleness of her performance standards. ID at 35; see also Graham v. Department of the Air Force , 46 M.S.P.R. 227 , 235 (1990) (recognizing that , in a chapter 75 removal for unacceptable performance such as this, an agency must prove that the performance standards at issue are reasonable and provide for an accurate measurement of the employee’s performance). ¶20 The appellant next argues that her cha in of command prevented her from contacting others for assistance during the PIP. PFR File, Tab 1 at 20. Yet, based on various pieces of evidence, including the appellant’s own admissions, the administrative judge found that the agency offered the appell ant two mentors, neither of which the appellant utilized. ID at 26, 29, 31. More importantly, as mentioned above, the appellant’s first - and second -level supervisors provided regular feedback discussions during the PIP, including more than 30 instances that are documented in her removal letter, along with regular written feedback and examples. ID at 23 -24, 31; IAF, Tab 8 at 41. According to the appellant, these first - and second -level supervisors were hostile throughout the PIP, preventing a meaningful opportunity to improve. PFR File, Tab 1 at 20 -21. However, based on witness testimony and documentary evidence, the administrative judge did not find her allegations credible. ID at 31 -32. We will not disturb his well -reasoned findings about these matt ers. See Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (recognizing that the Board must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations § 1201.72 (explaining discovery in a Board proceeding, its scope, methods, and limitations). 11 only when it has “sufficiently sound ” reasons for doing so); see also Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 , 1373 (Fed. Cir. 2016) (recognizing the deference aff orded to an administrative judge’s demeanor -based credibility determinations, “[e]ven if demeanor is not explicitly discussed”). The administrative judge properly denied the appellant’s affirmative defenses. Due process ¶21 The administrative judge considere d the appellant’s twofold allegation that the agency denied her due process. ID at 84 -87. While the appellant generally alleged bias on the part of the deciding official, the administrative judge found no evidence of the same. ID at 85. And while the a ppellant alleged that she lacked a meaningful opportunity to respond to the proposed removal because the agency heavily redacted and guarded her underlying work products, which were classified, the administrative judge disagreed because the agency made unredacted versions available. ID at 85 -87. ¶22 On review, the appellant reasserts a due process violation in several regards. PFR File, Tab 1 at 23 -27. First, the appellant presents several arguments that are unavailing because they rely on an oversimplificat ion of pertinent facts. For example, while the appellant argues that she was denied due process because her proposed removal included only redacted work products, id. at 23, there is ample evidence that the agency offered her the opportunity to review unr edacted versions during the response period and the appellant simply chose not to do so. Instead, the appellant continually asserted that she was being denied due process because of the redactions, while simultaneously refusing the agency’s offer to view the documents without redactions. Compare IAF, Tab 8 at 66-68 ( the appellant’s December 2014 response to the proposed removal, referring to the ambiguity caused by redactions in the supportive materials), with id. at 101-16 (February 24, 2015 transcript o f the appellant’s oral response, where in agency counsel indicated that the appellant could review the unredacted 12 versions), 176 -77 (February 23, 2015 email from agency counsel to the appellant’s counsel, indicating that the appellant could review the unred acted versions). ¶23 The appellant has separately alluded to the fact that her counsel was not permitted to review the unredacted documents. PFR File, Tab 1 at 24 -25. Again, the record shows that the agency offered to help her apply for an interim security clearance so she would have the necessary authorization, but the appellant’s counsel chose not to do so. Compare IAF, Tab 8 at 170 -73 (March 6, 2015 message from the appellant’s counsel, again arguing that the appellant is disadvantaged because of the reda ctions), with id. at 189 (March 6, 2015 response from the agency’s counsel, offering to help the appellant’s counsel obtain an interim clearance), and id. at 205 (March 13, 2015 message from the appellant’s counsel characterizing the need for an interim cl earance as onerous), with id. at 210-12 (March 18, 2015 response from the agency’s counsel explaining the need for a clearance), 222 -24 (March 30, 2015 message from the appellant’s counsel, once more arguing that she was disadvantaged because of the redacted documents). She only applied for her interim security clearance in connection with this appeal many months later. IAF, Tab 38 at 4. ¶24 Next, without identifying any specific work product, the appellant has alluded to the fact that the agency was not able to produce unredacted versions of some documents during adjudication of this appeal, for security reasons, despite the parties’ clearances. PFR File, Tab 1 at 25.7 However, the administrative 7 Within this due process portion of her petition, the appellant appears to dispute the administrative judge’s finding of unsatisfactory performance for a single work product. PFR File, Tab 1 at 25 (citing ID at 42). But the argument misstates the administrative judge’s findings. The appellant suggests that the administrative judge held her accountable for not including a document with her work product that, in actu ality, could not be included due to its classification level. PFR File, Tab 1 at 25. In fact, the administrative judge held her accountable for the fact that the appellant’s work product erroneously stated that the document was attached to her work produ ct when it was not. ID at 42 -43. 13 judge acknowledged the same and, as a result, assumed that the appellant completed those tasks satisfactorily. ID at 33 -34. ¶25 The appellant’s other due process arguments similarly relate to the redaction of her work products. She appears to argue that it was a due process violation or other error for the administrative judge to rely on the unredacted versions of her work products, rather than the redacted work products the deciding official considered. PFR File, Tab 1 at 22, 2 4. This argument is unavailing because an adverse action appeal from an agency is a de novo proceeding before the Board where by the Board will consider relevant evidence even if it was not before the agency at the time of its adverse action. Street v. Department of the Army , 23 M.S.P.R. 335 , 340 -41 (1984). In other words, the administrative judge properly considered evidence from both pa rties that the deciding official lacked, such as the appellant’s hearing testimony and her unredacted work products. ¶26 The appellant separately argues that it was a due process violation for the deciding official to rely on the redacted work products. PFR F ile, Tab 1 at 21 -24; IAF, Tab 8 at 33 -36. However, the appellant has acknowledged that her proposed removal included those redacted work products . PFR File, Tab 1 at 23 . Thus, the deciding official did not consider information that was not made availabl e to the appellant. Moreover, d ue process require s that an employee being deprived of her property interest be given a meaningful opportunity to respond. Gajdos v. Department of the Army , 121 M.S.P.R. 361 , ¶ 18 (2014). The appellant has failed to present any persuasive argument that the deciding official’s consider ation of redacted work products, along with her chain of command’s reports of why they were unsatisfactory, precluded a meaningful response. If she had chosen to do so, the appellant could have reviewed the unredacted work products to formulate arguments about why her work was satisfactory, contrary to the charge and he r chain of command’s evaluations. 14 Reprisal for grievance activity ¶27 Although the appellant claimed that a March 2013 grievance she file d was protected activity under Title VII’s opposition clause and the agency’s subsequent actions constituted improper reprisal, the administrative judge found otherwise. ID at 63 -70. He concluded that the grievance was not activity protected under the opposition clause of Title VII because the grievance involved general complaints about her manager; it did not oppose discrimination. Id. (referencing Daniels v. School District of Philadelphia , 776 F.3d 181 , 193 -95 (3 d Cir. 2015) (recognizing that a complaint about a manager, without relating the complaint to discrimination based on a protected category, is not covered by Title VII’s opposition clause)). ¶28 On review, the appellant has r aised her March 2013 grievance once more, but her arguments are not persuasive. The appellant suggests that while she may not have used “magic words,” such as “discrimination,” she did complain about being singled out and that should suffice. PFR File, T ab 1 at 28 -29; RAF, Tab 44 at 99 -100. We disagree. While there are no magic words, Title VII’s opposition clause only protects an employee’s opposition to discrimination. 42 U.S.C. § 2000e -3(a) (making it “an unlawful employment practice for an employer to discriminate against any . . . employee[] . . . because he has opposed any practice made . . . unlawful . . . by this subcha pter”); see Crawford v. Metropolitan Government of Nashville and Davidson County , 555 U.S. 271, 276-78 (2009) (discussing the term “oppose,” in the opposition clause of 42 U.S. C. § 2000e -3(a), and explaining that opposition incl udes taking “a stand against an employer’s discriminatory practices”). The appellant has failed to present any substantive basis for us to conclude that her general complaint about “the management and communication methods” of her supervisor, with no appa rent relation to discrimination, falls within those protections. RAF, Tab 44 at 99 -100. 15 Reprisal for an EEO complaint ¶29 The appellant’s next reprisal claim concerned an EEO complaint, which was protected activity, but the parties disagreed about its timi ng in relation to the agency’s actions. While the appellant asserted that she initiated her EEO complaint before her first - and second -level supervisors concluded that she failed the PIP, the administrative judge found that her complaint actually occurred days after they issued her PIP failure letter. ID at 70 -72; RAF, Tab 46 at 111. He further found that the appellant’s EEO complaint was not a motivating factor in the actions that followed, including her removal. ID at 73 -75. Alternatively, the admini strative judge found that , even if it were a motivating factor, the agency would have removed the appellant even in the absence of her EEO activity. ID at 75. ¶30 On review, the appellant reasserts that she initiated her EEO complaint before the PIP failure letter, not after. PFR File, Tab 1 at 29. However, her bare assertion on this point does not warrant disturbing the administrative judge’s well-reasoned findings to the contrary, which were based upon documentary evidence and credibility determinations. ID at 70 -72; see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997) (finding no reason to disturb the administrative judge ’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions); see also Purifoy , 838 F.3d at 1373; Haebe , 288 F.3d at 1301. ¶31 The appellant’s petition goes on to acknowledge, as the administrative judge did, that her EEO complaint did precede the removal action at issue in this appeal. PFR File, Tab 1 at 29 -30. Yet she fails to present any substantive and persuasive argument that the EEO complaint was a motivating factor in her removal. See Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 30-31. According to the appellant, the administrative judge erroneously concluded that her first - and second -level supervisors played no role in her 16 removal when, in fact, the deciding official relied on their conclusions about her performance during the PIP. PFR File, Ta b 1 at 30. But that misconstrues the administrative judge’s findings. The administrative judge found that while the appellant’s first - and second -level supervisors evaluated the appellant’s PIP performance as unacceptable, that evaluation occurred before her EEO complaint and any possible motive to retaliate from those supervisors, and they were not otherwise involved in her subsequent removal. ID at 70 -75. The appellant’s argument on review does not establish otherwise, nor does it present any other basis for disturbing the administrative judge’s findings regarding her EEO reprisal claim. Discrimination ¶32 The final affirmative defense the administrative judge considered was one of discrimination in the form of disparate treatment. Among other things, he considered allegations concerning the appellant and a comparator employee’s access to certain classified systems, desk locations, and freedom to collaborate, along with the agency’s decision to promote that employee. Ultimately, although the appellant arg ued that she was subjected to disparate treatment on the basis of race and gender, the administrative judge found that she failed to meet her burden of proof. ID at 76 -84. ¶33 On review, the appellant has reasserted discrimination. PFR File, Tab 1 at 28-31. However, her arguments largely consist of conclusory allegations without persuasive argument and evidence that would warrant disturbing the initial decision. For example, the appellant asserts that the administrative judge improperly described her seco nd-level supervisor as married to someone with Asian heritage, when that individual is actually of Polynesian heritage. PFR File, Tab 1 at 28; ID at 77. But even if true, which we have not determined because the appellant failed to identify any evidence about the same, the distinction appears inconsequential. The administrative judge cited this individual’s heritage 17 while making the more general finding that the Hawaii Field Office included a wide variety of people who were or had a c lose family member w ho was “one -half minority,” like the appellant. ID at 82. Concerning the promotion of the comparator at issue, a Caucasian male, the appellant asserts that the agency selected him for a promotion over a third -party Japanese American even though he had no experience. PFR File, Tab 1 at 30. However, the appellant failed to identify any evidence to support that claim, nor has she identified anything to dispute the agency’s explanation for the selection. ¶34 The appellant also attempts to discount testimony f rom certain officials about the absence of discrimination, arguing that they were not present to witness her first -level supervisor’s disparate treatment. PFR File, Tab 1 at 30. Additionally, she argues that the administrative judge erred in finding that several officials involved in the appellant’s PIP and subsequent removal were unaware of the fact that she is one -half Japanese because her race is apparent. Id. at 28; ID at 77-78, 83. While we have considered each of the appellant’s arguments or asser tions pertaining to discrimination, we find no basis for disturbing the administrative judge’s thorough and well -reasoned findings, which are largely based upon credibility determinations.8 ID at 76 -84; see Purifoy , 838 F.3d at 1373 ; Haebe , 288 F.3d at 1301. The administrative judge properly found the penalty of removal to be reasonable. ¶35 The administrative judge determined that removal was a reasonable penalty. ID at 87 -93. On review, the appellant summarily asserts that the removal shou ld be mitigated because the agency proved only one of the three specifications underlying its charge. PFR File, Tab 1 at 15 -16. However, it is well settled that 8 Because we affirm the administrative judge’s finding that the appellant failed to show that any prohibited consideration was a motivating factor in the agency’s action, we need not resolve the issue of whether the appellant proved that discrimination or retaliation was a “but -for” cause of the agency’s decisions. See Pridgen , 2022 MSPB 31, ¶¶ 20-22, 29 -33. 18 proof of one specification is sufficient to sustain a charge. Payne v. U.S. Postal Service , 72 M.S.P.R. 646 , 650 (1996). When an agency’s charges are sustained, but some of the underlying specifications are not, its penalty determination is entitled to deference and must be reviewed only to determine whether it is within the parameters of reasonableness. Id. ¶36 While the appellant argues that we should reconsider the penalty, she has failed to present any substantive basis for doing so. PFR File, Tab 1 at 15 -16. She has not, for example, identified any mitigating factor that the agency should have, but failed t o consider. Accordingly, we agree with the administrative judge’s thorough discussion of the relevant factors and the deciding official’s consideration of the same. ID at 87 -93. The deciding official recognized that the appellant’s performance deficienc ies were very serious because they weakened the agency’s ability to meet mission requirements and respond to threats both foreign and domestic , they persisted despite extensive training and guidance , and they resulted in supervisors losing confidence in th e appellant. ID at 88 -89. He acknowledged mitigating factors, such as the appellant’s lengthy career and prior successful performance, but determined that they did not warrant a lesser penalty. ID at 90. We find no basis for reaching a different conclu sion, despite the agency’s failure to prove some of its specifications. NOTICE OF APPEAL RIGHTS9 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of yo ur claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, t he Merit Systems Protection Board does not provide legal advice on which option is most 9 Since the issuance o f the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 19 appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to revie w your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 20 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 21 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.10 The court of appeals must receive your 10 The original statutory provisi on that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellant s to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroac tive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 22 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Feder al Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respe ctive websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	GROENLEER_ARISA_SF_0752_16_0028_I_2_FINAL_ORDER_2028634.pdf	2023-05-05	null	SF-0752	NP
3,177	https://www.mspb.gov/decisions/nonprecedential/TILLMAN_KIMYANA_AT_0714_18_0020_I_1_FINAL_ORDER_2028646.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KIMYANA TILLMAN, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0714 -18-0020 -I-1 DATE: May 5, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shaun Southworth , Esquire, Atlanta, Georgia, for the appellant. Kathleen Pohlid , Esquire, and Lois F. Prince , Nashville, Tennessee, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has petitioned for review of the January 29, 2018 initial decision affirming her removal . 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 require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 ¶2 After the filing of the petition for review, the parties submitted a document entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant and the agency on April 11 , 2023 , and April 12, 2023 , respectively . Petition for Review ( PFR ) File, Tab 4 at 3 -10. The document provides, among other things, that the appellant would withdraw her MSPB appeal. Id. at 4. ¶3 The Board retains ju risdiction to enforce a settlement agreement if it has been entered into the record for that purpose. Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 16, 21 (2017). If the parties enter an agreement into the record and it is approved by the administrative judge, it will be enforceable by the Board unless the parties clearly specify that they do not want Board enforcemen t. Stewart v. U.S. Postal Service , 73 M.S.P.R. 104 , 107 -08 (1997); see 5 C.F.R. § 1201.41 (c)(2)(i) (provid ing that a settlement agreement will be made a part of the record, and the Board will retain jurisdiction to ensure compliance, if the parties offer it for inclusion into the record and the judge approves it). ¶4 Here, we find that the parties have entered into a settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforcement by the Board. PFR File, Tab 4 at 4, 8 . Accordingly, we find that dismissing the appea l 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 in to the record for enforcement purposes. ¶5 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS If the agency or the appellant has not fully carried out the terms of the agreement, either party may ask the Board to enforce the settlement agreement by 3 promptly filing a petition for enforcement with the office that issued the initial decision on this appeal. The petition should contain specific reasons why the petitioning party believes that the terms of the settlement agreement have not been fully carried out, and should include the dates and results of any communications between the parties. 5 C.F.R. § 1201.182 (a). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and req uirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final B oard order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 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 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Pl ace, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellan ts,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://ww w.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept repr esentation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a re presentative in this case, and your representative receives this decision before you do, then you must file 5 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimi nation based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts. gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a r epresentative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 6 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. C ourt of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circui t 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitio ners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our web site at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	TILLMAN_KIMYANA_AT_0714_18_0020_I_1_FINAL_ORDER_2028646.pdf	2023-05-05	null	AT-0714	NP
3,178	https://www.mspb.gov/decisions/nonprecedential/RAMIREZ_JEANNIE_M_SF_0752_18_0324_I_1_REMAND_ORDER_2028679.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JEANNIE M. RAMIREZ, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER SF-0752 -18-0324 -I-1 SF-0752 -19-0407 -I-1 DATE: May 5, 2023 THIS ORDER IS NONPRECEDENTIAL1 Linda A. Albers , Esquire, Laguna Hills, California, for the appellant. Catherine V. Meek , Esquire, Long Beach, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member REMAND ORDER ¶1 The appellant has filed petition s for review of the initial decision s in these two appeals, which sustained her demotion and removal. For the reasons discussed below, we JOIN the two appeals,2 GRANT the appellant’s petition s 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 a dministrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Joinder of two or more appeals filed by the same appellant is appropriate whe n doing so would expedite case processing and will not adversely affect the parties ’ interests. 2 review, VACATE the initial decisions, and REMAND the appeals to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 The appellant was formerly employed by the agency as Postmaster of the Sunset Beach Post Office in Suns et Beach, California. Ramirez v. U.S. Postal Service , MSPB Docket No. SF -0752 -18-0324 -I-1, Initial Appeal File (0324 IAF), Tab 5 at 37. By letter dated June 2, 2016, the agency proposed the appellant’s removal based on two charges of negligent performanc e of duties and unacceptable conduct. Id. at 43-53. The deciding official sustained both charges but mitigated the penalty to a one -grade demotion and reassigned the appellant to a position as a Supervisor, Customer Relations at the South Gate Post Offic e, effective June 10, 2017 . Id. at 37 -41. The appellant filed a formal complaint of discrimination alleging that her demotion was motivated by discrimination based on her race , color, age, sex, and retaliation for her prior equal employment opportunity (EEO) activity. Id. at 18. After receiving a final agency decision finding that she was not subjected to discrimination, the appellant filed a Board appeal challenging her demotion and raised affirmative defenses of discrimination and reprisal based on he r EEO and whistleblowing activities. Id. at 18 -34; 0324 IAF, Tab 1. ¶3 Meanwhile, t he appellant initially reported to work at the South Gate Post Office in late June 2017 but thereafter began taking a mixture of annual leave, sick leave , leave without pay (LWOP) , and LWOP in lieu of sick leave (SWOP) . Ramirez v. U.S. Postal Service , MSPB Docket No. SF -0752 -19-0407 -I-1, Initial Appeal File (0407 IAF), Tab 19, Hearing Transcript at 41 (testimony of the appellant) ; 0407 IAF, Tab 6 at 27 -30. By letter dated N ovember 27, 2018, the agency ordered the appellant to return to work or provide medical documentation See Doe v. Pension Benefit Guaranty Corporation , 117 M.S.P.R. 579 , ¶ 23 (2012); 5 C.F.R. § 1201.36 (a), (b). We find that these criteria are satisfied here. 3 showing that she was incapacitated from work. 0407 IAF, Tab 6 at 22 -23. The appellant did not return to work and instead provided medical documentation from her doctor indicating that she had been treating the appellant for work stress since December 2017 and that the appellant required the following work accommodations: “she is able to work in a position similar to her prior job where she oversaw clerks , but not carriers, and should no t be required to perform duties for which she has no prior training.” Id. at 21. By letter dated December 11, 2018, the agency issued the appellant a notice of proposed separation -disability in which it notified her that it was proposing to administratively separate her in accordance with the Employee and Labor Relations Manual (ELM) section 365.34 because she had been absent from duty in excess of 365 days. Id. at 18 -20. The appellant did not respond to the deciding off icial orally or in writing, and the deci ding official issued a decision dated April 3, 2019, separating the appellant, effective April 5, 2019. Id. at 14 -16. The appellant filed a Board appeal, challenging her removal and raising affirmative defenses of disability discrimination based on failure to accommodate, reprisal for her prior EEO activi ty, whistleblower reprisal, due process violations , and harmful procedural error. 0407 IAF, Tab 1 at 6, 9 -18, Tab 13 at 4. ¶4 The administrative judge consolidated the appellant’s demotion and removal appeals for purposes of holding a hearing . 0324 IAF, Tab 18 at 2; 0407 IAF, Tab 8 at 2. In a July 3, 2019 Order the administrative judge notified the parties that prehearing submissions would be due by August 22, 2019, a prehearing conference would be held on August 27, 2019, and the hearing would be held on September 10 -11, 2019. 0324 IAF, Tab 19 ; 0407 IAF, Tab 10. She further notified the parties that because more than 45 days would pass with no activity on the case, she intended to suspend case processing sua sponte on a date after July 10, 2019, absent an objection from the parties. 0324 IAF, Tab 19 at 2; 0407 IAF, Tab 10 at 3. Thereafter, by order dated July 19, 2019, the administrative judge 4 suspended case processing for 30 days, beginning on July 19, 2019 . 0324 IAF, Tab 20 ; 0407 IAF, Tab 11. The order notified the parties that case processing would resume on August 18, 2019 , or if the Board was closed for business on that date, the parties’ obligations wo uld resume on the next business day. 0324 IAF, Tab 20; 0407 IAF, Tab 11. ¶5 After August 18, 2019, the administrative judge did not issue any orders regarding the resumption of case processing. On August 27, 2019, shortly before the scheduled prehearing con ference, the parties filed a joint motion seeking to reschedule the deadline for prehearing submissions, the prehearing conference , and the hearing to allow them to complete dis covery. 0407 IAF, Tab 12. The agency’s attorney also emailed the administrati ve judge indicating that she could not participate in the prehearing conference and that the parties had filed a motion for a continuance. 0324 IAF, Tab 21 at 2; 0407 IAF, Tab 13 at 2. Neither party appeared for the scheduled prehearing con ference on Aug ust 27, 2019. In an August 28, 2019 Order and Summary of Prehearing Conference, the administrative judge denied the parties’ joint motion to continue and sanctioned them both for their failure to make appropriate prehearing submissions or participate in t he prehearing conference . 0324 IAF, Tab 21; 0407 IAF, Tab 13. The sanctions imposed were that the administrative judge conducted the prehearing conference as if it had occurred as scheduled and stated that , although no witnesses were requested, she would approve the appellant and the deciding officials in the interests of justice . 0324 IAF, Tab 21 at 3, 5. The administrative judge also noted that no prehearing submissions or exhibits had been filed and apparently limited the parties’ exhibits to those that were already a part of the record. Id. at 5. ¶6 After holding a hearing, the administrative judge issued separate initial decisions sustaining the appellant’s demotion and removal and finding that the appellant fai led to prove her affirmative defenses of discrimination, EEO reprisal, whistleblower reprisal, harmful procedural error, or due process violations . 5 0324 IAF, Tab 30, Initial Decision (0324 ID); 0407 IAF, Tab 21, Initial Decision (0407 ID). ¶7 The appellant h as filed petitions for review in which she challenges the merits of the administrative judge’s findings as well as asserts that the administrative judge’s sanctions order constituted an abuse of discretion. 0324 Petition for Review ( 0324 PFR) File, Tab 1; 0407 Petition for Review (0407 PFR) File, Tab 1.3 The agency has not responded to the appellant’s petitions. DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge ’s sanction order constituted an abuse of discretion . ¶8 On review, the appellant asserts that the administrative judge abused her discretion in imposing sanctions because both parties were confused regarding the deadlines while the case was suspended. 0324 PFR File, Tab 1 at 9 -12; 0407 PFR File, Tab 1 at 23 -25. According to the appellant, sh e interpreted the administrative judge’s case suspension order as having the effect of postponing discovery and trial preparation based on the language in the order that the parties’ obligations would resume on August 18, 2019. 0324 PFR File, Tab 1 at 11; 0407 PFR File, Tab 1 at 24-25. Therefore, the parties did not complete discovery. 0324 PFR File, Tab 1 at 11; 0407 PFR File, Tab 1 at 25. Additionally, the appellant asserts that she did not believe the prehearing conference call would take place based on the case suspension and the agency counsel’s email to the administrative judge indicating her unavailability to participate. 0324 PFR File, Tab 1 at 11 -12; 0407 PFR File, Tab 1 at 25. ¶9 An administrative judge has the authority to sanction a party when necessary to serve the ends of justice. 5 C.F.R. § 1201.43 . In particular, an administrative judge may sanction a part y for failure to comply with an order. 3 With her petitions, the appellant submitted various documents. 0324 PFR File, Tab 1 at 29-44; 0407 PFR File, Tab 1 at 36 -58. In light of our decision t o remand the appeals for further adjudication, we have not considered such documents on review. On remand, the appellant may submit such documents as part of her prehearing submissions pursuant to the administrative judge’s orders. 6 5 C.F.R. § 1201.43 (a). However, sanctions should be imposed only when a party has failed to exercise due diligence in complying with an order or h as exhibited negligence or bad faith in its efforts to so comply. Ellshoff v. Department of the Interior , 78 M.S.P.R . 615, ¶ 4 (1 998). Absent an abuse of discretion, the Board will not reverse an administrative judge ’s determination regarding sanctions. See Leseman v. Department of the Army , 122 M.S.P.R. 139 , ¶ 6 (2015). Under all of the circumstances of this appeal, we agree with the appellant that the sanctions imposed in the form of limiting the witnesses and exhibits at the hearing constituted an abuse of discretion. ¶10 First, we find that the administrative judge should have issued a show cause order to afford the parties an opportunity to respond prior to imposing sanct ions. See 5 C.F.R. § 1201.43 (stating that before imposing a sanction, the judge shall provide appropriate prior warning, allow a response to the actual or proposed sanction when feasibl e, and document the reasons for any resulting sanction in the record) . Issuance of a show cause order was particularly appropriate here given that both parties failed to file prehearing submissions or appear for the prehearing conference , but filed a joint motion to continue through which they indicated they had not completed discovery and expressed clear intent to file prehearing submissions and participate in a prehearing conference and hearing on later dates. ¶11 Second, given the language in the July 3 and July 19, 2019 orders, the parties could reasonably have been confused regarding their obligations during the case suspension period . Although the July 3, 2019 Order set forth a prehearing and hearing schedule, it also indicated that the administrat ive judge intended to sua sponte suspend case processing and that “no activity ” would happen for 45 days. 0324 IAF, Tab 19; 0407 IAF, Tab 10. The July 19, 2019 case suspension order did not explicitly state that the prior deadlines were unaffected and instead confusingly stated that the parties ’ obligations would “resume ” on August 18, 2019. 0324 IAF, Tab 20; 0407 IAF, Tab 11. Moreover, 7 neither order address ed whether the parties were to continue to engage in discovery during the suspension period , and under the circumstances, the parties’ belief that discovery was stayed during the suspension period was not unreasonable .4 ¶12 The parties could have made a timely attempt to confirm their understanding of the effect of the July 19, 2019 suspension order, instead of ignoring the deadline for making prehearing submissions and waiting until a few hours before the prehearing conference to file a motion for a continuance. Nonetheless, as noted above, we find compelling the appellant’s assertions regarding the parties’ confusion about the existing deadlines and obligations during and immediately after the suspension period . 0324 PFR File, Tab 1 at 11, 24-25. As a result, and considering the parties’ belief that the case suspension served to delay completion of discovery, we conclude that the parties’ failure to comply with prehearing deadlines did not evidence a lack of due diligence or rise to the level of negligence or bad faith . ¶13 Finally, we acknowledge that the appellant ’s failure to object to the administrative judge’s sanction ruling by the deadline provided in the Order and Summary of Telephonic P rehearing Conference would normally result in waiver of her right to contest the ruli ng on petition for review. 0407 IAF, Tab 13 at 7 ; see Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579 , 581 (1988) . However, 4 We emphasize that ca se suspension orders should clearly explain the effect of the case suspension on existing deadlines. For example, the order could state that all deadlines previously set are unaffected by the case suspension or that the deadlines will be reset upon the en d of the suspension period. If discovery is still pending, any case suspension order should advise the parties whether they should or should not continue to engage in discovery during the suspension period and the due date for the filing of any motion to compel . For example, the administrative judge could advise the parties that the deadline to file motions to compel will be stayed until the end of the suspension period and any such motions should be filed within a specific number of days after case proce ssing resumes. Alternatively, the case suspension order could state that the deadline to file motions to compel is not tolled during the period of suspension, and such motions must be filed within the time allowed in Board regulations. 8 considering the administrative judge’s failure to issue a show cause order providing the appellant an opportunity to respond to the proposed sanctions, the confusion caused by the administrative judge’s July 3 and July 19, 2019 orders, and the fact that th e appellant did state her objection to the sanctions order in her closing brief , we find that it is appropriate to consider the issue on review . See 5 C.F.R. § 1201.115 (e) ( providing th at the Board reserves the authority to consider any issue in an appeal before it). ¶14 Under the totality of these circumstances, the administrative judge’s action amounted to an abuse of discretion, and we remand the se appeal s to the regional office . See Hart v. Department of Agriculture , 81 M.S.P.R. 329, ¶ 7 (1999) (considering all the facts in determining that the appellant’s failure to comply with the administrative judge’s order was inadvertent). On remand, the assigned administrative judge shall afford the parties an opportunity to complete discovery and file prehearing submissions and shall conduct a prehearing conference . The admi nistrative judge shall also hold a supplemental hearing and issue new initial decisions.5 In doing so, the administrative judge will make new findings regarding the appellant’s affirmative defenses, taking into account the Board’s recent prec edent in Prid gen v. Office of Management and Budget , 2022 MSPB 31 , which was issued after the initial decision s in th ese matter s. 5 Although we join the appeals on petition for review, on remand the administrative judge may decide whether they should remain joined. See 5 C.F.R. § 1201.36 . 9 ORDER ¶15 For the reasons discussed above, we remand th ese case s to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	RAMIREZ_JEANNIE_M_SF_0752_18_0324_I_1_REMAND_ORDER_2028679.pdf	2023-05-05	null	SF-0752	NP
3,179	https://www.mspb.gov/decisions/nonprecedential/CONEY_ANTHONY_A_DA_0432_16_0220_I_1_FINAL_ORDER_2028802.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ANTHONY A. CONEY, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DA-0432 -16-0220 -I-1 DATE: May 5, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Anthony A. Coney , Harker Heights, Texas, pro se. Patrick A. Keen , Shreveport, Louisiana, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction. For the reasons set forth below, the appellant’s petition for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g). BACKGROUND ¶2 The appellant filed a Board appeal challenging the agency’s decision to remove him from his position, effective January 22, 2016. Initial Appeal File (IAF), Tab 1. After holding a jurisdictional hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction because she found that, prior to filing his Board appeal, the appellant had elected to challenge his rem oval via the negotiated grievance procedure . IAF, Tab 28, Initial Decision (ID). The appellant filed a petition for review of the initial decision, which the Board received on December 29, 2016. Petition for Review (PFR) File, Tab 1. In a December 29, 2016 acknowledgement letter, the Office of the Clerk of the Board informed the appellant that his petition for review appeared to be untimely and afforded him the opportunity to file a motion to accept the filing as timely and/or waive the time limit for good cause. PFR File, Tab 2. In response, the appellant filed a motion to waive the time limit in which he asserted that the initial decision was not available for viewing and he was experie ncing “medically incapacitating episodes.” PFR File, Tab 5 at 5.3 The agency responded to the appellant’s petition, arguing that it should be dismissed as untimely filed without good cause shown, or alternatively, for failing to meet the standards for ob taining review. PFR File, Tab 4. 3 We have not considered the appellant’s additional pleading filed on February 1, 2017 , because it was not filed by the January 13, 2017 deadline. PFR File, Tabs 2, 6. Regardless, even if we did consider such evidence, it would not change the outcome. 3 ¶3 A petition for review must be filed within 35 days after the date of issuance of the initial decision or, if the petitioner shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date the petition er received the initial decision. 5 C.F.R. § 1201.114 (e). The appellant asserts that the initial decision was “not available for viewing” and submitted evidence that on or about Decem ber 26, 2016, he requested technical support from the Board because he could not access the initial decision via e-Appeal. PFR File, Tab 5 at 5, 7 -8. According to the appellant, he received a copy of the decision on December 28, 2016. Id. at 7. However , the record reflects that the initial decision in this matter was transmitted via e -Appeal on October 28, 2016. IAF, Tab 29. There is no indication that the email notification the appellant received regarding the initial decision was received after the October 28, 2016 date of service. Additionally, the Board’s e -Appeal log s reflect that the appellant logged on to access the Board’s e -Appeal Repository on October 28, 2016 , as well as on numerous other dates between October 28 and November 28 , 2016. If there was a problem with the appellant’s e -Appeal access, it should have been identified and resolved within the 35 -day time period for filing a petition for review. The appellant has not explained why he did not act diligently to request assistance viewing the initial decision but rather waited 2 months to do so. ¶4 Regardless, a s a registered e -filer, the appellant consented to receive all documents issued by the Board in electronic form and to monitor case activity via e-Appeal to ensure that he rec eived all case -related documents. IAF, Tab 6; see 5 C.F.R. § 1201.14 (e)(1) , (j)(3). Further, 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) ; see Palermo v. Department of the Navy , 120 M.S.P.R. 694, ¶ 3 (2014). When a law or regulation “deems” something to have been done, the event is considered to have occurred whether or not it actually did. See, e.g. , Martinez v. Broadcasting Board of Governors , 115 M.S.P.R. 46 , ¶ 6 (2010); 4 Terrell v. U.S. Postal Service , 114 M.S.P.R. 38 , ¶ 8 (2010) ; Rivera v. Social Security Administration , 111 M .S.P.R. 581 , ¶ 5 (2009) . Thus, we find that the appellant is deemed to have received the initial decision on October 28, 2016 , and his December 29, 2016 petition for review was untimely filed by almost 1 month after the December 2, 2016 filing deadline . ID at 9 ; PFR File, Tab 1 . ¶5 The Board will waive the time limit upon a party ’s showing of good cause for the delay in filing. 5 C.F.R. § 1201.114 (f); see Palermo , 120 M.S.P.R. 694 , ¶ 4. To establish good cause for an untimely fi ling, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Palermo , 120 M.S.P.R. 694 , ¶ 4. To determine whether an appellant has s hown good cause, the Board will consider the length of the delay, the reasonableness of h is excuse and h is showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond h is control that affected h is ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to h is inability to timely file h is petition. Id. If the appellant asserts that there was good cause for his delay because a medical condition affected or impaired his ability to file a timely appeal, then he must identify the time period during which he suffered from an illness; submit medical evidence s howing that he suffered from the illness during that time period; and explain how the illness prevented him from timely filing the appeal. Lacy v. Department of the Navy , 78 M.S.P.R. 434 , 437 (1998). ¶6 In his motion to waive the filing deadline for good cause shown dated January 12, 2017, the appellant asserts that he was in bed incapacitated with back issue s, could not function, and ha d medically incapacitating episodes 28 -30 days out of the past 60 days. PFR File, Tab 5 at 5 -6. As support, he submitted a n application for Department of Veterans Affairs disability benefits that appears to be signed by his doctor on January 9, 2017, whi ch indicates that he was diagnosed with lumbar radiculopathy in 2016 and suffers from low back pain . Id. at 9-19. 5 The application further indicates that the appellant suffered incapacitating episodes at least 2 weeks but less than 4 weeks over the past 1 2 months. Id. at 16. It is unclear fr om the record which dates the appellant contends that he was incapacitated. Nonetheless, the appellant does not allege that he was incapacitated during the entire filing period, and he has not explained why he could not have filed his petition for review or an extension request on the remaining days on which he was not incapacitated . See, e.g. , Miller v. Department of the Army , 112 M.S.P.R. 689 , ¶ 15 (2009) (finding that the appellant failed to establish good cause for her untimely petition for review when she provided evidence that she was examined at a hospital, recommended 4 days of bed rest , and out of work for a few days during the filing period but failed to explain her illness or how it prevented her from filing a timely petition for review) ; McDonald v. U.S. Postal Service , 109 M.S.P.R. 100 , ¶ 7 (2008) (finding that the appellant failed to establish good cause for his filing delay because his evidence did not explain how his condition prevented him from timely fi ling or requesting an extension for the entire period of the delay) ; Jerusalem v. Department of the Air Force , 107 M.S.P.R. 660, ¶ 5 (stating that the proffered medical evidence must address the entire period of the delay), aff’d , 280 F. App’x 973 (Fed. Cir. 2008). Additionally, although the appellant is pro se, the Board has held that a delay of 1 month is significant. See Crook v. U.S. Postal Service , 108 M.S.P.R. 553 , ¶ 6, aff’d , 301 F. App ’x 982 (Fed. Cir. 2008) . After considering the appellant ’s evidence , we find that it does not support a finding that he was medically prevented from timely filing h is petition for review or from requesting an extension of time. See Lacy , 78 M.S.P.R. at 437. ¶7 Accordingly, we dismiss the petition for review as un timely 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 removal appeal. 6 NOTICE OF APPEAL RIG HTS4 You ma y obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file . 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of rev iew below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 8 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http:/ /www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). I f you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review t o the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a me thod requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancemen t Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 9 disposition of allegations of a prohibited personnel practice describe d in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 fo r judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CONEY_ANTHONY_A_DA_0432_16_0220_I_1_FINAL_ORDER_2028802.pdf	2023-05-05	null	DA-0432	NP
3,180	https://www.mspb.gov/decisions/nonprecedential/OLIVA_STEVEN_DA_1221_16_0199_W_1_FINAL_ORDER_2028814.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD STEVEN OLIVA, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER S DA-1221 -16-0199 -W-1 DA-1221 -15-0520 -W-1 DATE: May 5, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Steven Oliva , Fair Oaks Ranch , Texas, pro se. Melissa Lynn Binte Lolotai , Esquire, Denver, Colorado, for the agency. Janet E. Harford , Esquire, Temple, Texas, for the agency. BEFORE Cathy A. Harris , Vice Chair man Raymond A. Limon , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in connection with his two individual 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 right of action (IRA) appeals, joined for adjudic ation. For the reasons set forth below, the appellant’s petition for review is DISMISSED as untimely filed with no good cause shown. 5 C.F.R. § 1201.114 (e), (g). BACKGROUND ¶2 In an initial decision issued on January 13, 20 17, the administrative judge found that, while the appellant established the Board’s jurisdiction over the joined IRA appeals, he failed to establish that he, in fact, made a protected disclosure, and she, therefore , denied his request for corrective action. Oliva v. Department of Veterans Affairs , MSPB Docket Nos. DA -1221 -16-0199 -W-1, DA-1221 -15-0520 -W-1, Initial Appeal File (IAF), Tab 31, Initial Decision (ID) . The administrative judge noted that the appellant had asserted that the personnel actions at issue were also taken in response to the agency’s perception of him as a whistleblower. She found, however, that he had failed to establish that he exhausted his remedies with the Office of Special Counsel (OSC) on the issue of whether the agency perceived him as a whistleblower and that therefore the Bo ard lacked jurisdiction over that claim. ID at 12 n.8. The administrative judge notified the parties that the initial decision would bec ome final on February 17, 2017, if neither party filed a petition for review. ID at 17. ¶3 On December 18, 2018, the appellant filed a petition for review in which he explained that , based on information he received from OSC in response to a Freedom of Infor mation Act request he had filed , he had just learned that the initial decision in his IRA appeals “was issued in error.” Petition for Review (PFR) File, Tab 1 at 4. The specific error, he asserted, was the administrative judge’s determination that she la cked jurisdiction to consider his claim that the agency perceived him as a whistleblower. Id. at 5. Based on that error, the appellant explained, he was required to relitigate the matter before OSC and the Board, and it took 2 years for him to get any re lief, although he did not get full relief because those who retaliated again st him were not held fully accountable . 3 Id. at 7. The appellant stated that, because he did not have the evidence (OSC’s correspondence) by the filing deadline , he did not realiz e the impact the initial decision would have on him. Id. at 5. He asked that the initial decision be vacated and that a subsequently issued initial decision issued by another administrative judge granting him corrective action be made the Board’s final decision on this matter . Id. at 6. With his petition for review, the appellant submitted copies of his correspondence with OSC. Id. at 9-16. ¶4 The Office of the Clerk of the Board (Clerk) notified the appellant that the petition for review appeared to be untimely filed because it was not postmarked or received on or before February 17, 2017. PFR File, Tab 2. The Clerk afforded the appellant an opportunity to file a motion to accept his filing as t imely and/or to waive the time limit for good cause and stated that such a motion must be accompanied by a statement signed under penalty of perjury, or an affidavit, filed on or before January 4, 2019 . Id. at 2. In response, t he appellant filed a statem ent signed under penalty of perjury . PFR File, Tab 3. ANALYSIS ¶5 The Board’s regulations require that a petition for review be filed within 35 days after the date of issuance of the initial decision, or, if a party shows that he received the initial decisio n more than 5 days after it was issued, within 30 days after his receipt of the initial decision. Palermo v. Department of the Navy , 120 M.S.P.R. 694 , ¶ 3 (2014); 5 C.F.R. § 1201.114 (e). The appellant does not indicate that he received the January 13, 2017 initial decision more than 5 days after it was issued. Th erefore, as stated in the initial decision, the petition for review was due 35 days later, on February 17, 2017. ID at 17. The appellant’s petition for review, f iled on December 18, 2018, was more than 22 months late. PFR File, Tab 1. ¶6 The Board will wai ve the filing deadline for a petition for review upon a showing of good cause for the untimely filing. Palermo , 120 M.S.P.R. 694 , ¶ 4; 4 5 C.F.R. § 1201.114 (g). The party who submits an untimely petition for review has the burden of establishing good cause for the untimely filing by showing that he exercised due dil igence or ordinary prudence under the particular circumstances of the case. Palermo , 120 M.S.P.R. 694 , ¶ 4; Alonzo v. Department o f the Air Force , 4 M.S.P.R. 180 , 184 (1980). To determine whether a party has shown good cause, the Board will consider the length of the delay, th e reasonableness of his excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limit or unavoida ble casualty or misfortune that similarly shows a causal relationship to his ability to timely file his petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table). ¶7 In applying these factors to this case, we first find that , even though the appellant is pro se, the length of the delay, 22 months, is particularly significan t. See, e.g. , Keys v. Office of Personnel Management , 113 M.S.P.R. 173 , ¶ 7 (2010) (finding that a filing delay of 17 months is not m inimal ). The fact that the appellant did not realize what he describes as “the impact” of the “erred” initial decision, PFR File, Tab 1 at 5, Tab 3 at 5, does not establish good cause for his untimely filing. Brum v. Department of Veterans Affairs , 109 M.S.P.R. 129 , ¶ 6 (2008) (finding that lack of familiarity with legal matters and Board procedures did not establish good cause for the untimely filing of a petition for review). The appellant has not presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the filing time limit or unavoidable casualty or misfortune that similarl y shows a causal relationship to his ability to timely file his petition. Miller v. Department of the Army , 112 M.S.P.R. 689 , ¶ 13 (2009). 5 ¶8 The appellant’s main argument in support of his motion to waive the filing deadline is that, based on his communications from OSC, he now knows that the initial decision was incorrectly decided. The discovery of new evidence may establish good c ause for the untimely filing of a petition for review “if the evidence was not readily available before the close of the record below, and if it is of sufficient weight to warrant an outcome different from that of the initial decision.” Satterfield v. U.S . Postal Service , 80 M.S.P.R. 132 , ¶ 5 (1998) (quoting Boyd -Casey v. Department of Veterans Affairs , 62 M.S.P.R. 530 , 532 (1994) ). The correspondence from OSC, dated December 2018, is new in that it postdates July 12, 2016, the close of the record below. However , it is not material because it is not of sufficient weight to warrant an outcome different from that of the administrative judge. An OSC employee’s opinion on an issue in a case before the Board does not constitute binding precedent. Cf. Conway v. Office of Personnel Management , 59 M.S.P.R. 405 , 412 n.4 (1993) (finding that an initial decision which reached the opposite result on the sam e issue that is involved in a current Board appeal is not a matter for resolution by the Board). Therefore, the evidence the appellant has proffered on review does not establish good cause for the untimely filing of his petition for review. ¶9 In sum, the appellant has not shown that he exercised due diligence or ordinary prudence under the circumstances, and his petition for review must be dismissed. Palermo , 120 M.S.P.R. 694 , ¶ 4. ¶10 Accordingly, we dismiss the petition for review as untimely filed with no good cause shown . This is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for re view. The initial decision remains the final decision of the Board regarding the joined IRA appeal s. 6 NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for 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. 7 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono re presentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decis ion. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 8 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review t o the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursua nt to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). 9 If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a pro hibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Cir cuit or any court of appeals of competent jurisdiction.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. Washing ton, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probon o for information regarding pro bono representation 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 whistle blower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a g iven case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Loc ator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	OLIVA_STEVEN_DA_1221_16_0199_W_1_FINAL_ORDER_2028814.pdf	2023-05-05	null	S	NP
3,181	https://www.mspb.gov/decisions/nonprecedential/GREVE_TONIE_M_DE_1221_15_0540_W_1_FINAL_ORDER_2028137.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TONIE M. GREVE, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency. DOCKET NUMBER DE-1221 -15-0540 -W-1 DATE: May 4, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Tonie M. Greve , Mesa, Arizona, pro se. Carol Liang , Esquire, and Margaret Cordova , Denver, Colorado, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied her request for corrective action in connection with her individual right of action (IRA) appeal . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 material fact; the i nitial 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 co nsistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 On review, the appellant , a GS -9 Clinical Nurse, first attempts to parse out the reasons for which she was removed, a rguing, f or instance, that regarding charge 1, she did not, in fact, violate the Health Insurance Portability and Accountability Act (HIPAA ) because scheduling appointments was part of her official duties as a Clinical Nurse, and because using the computer was how she carried out those duties. P etition for Review (P FR) File, Tab 1 at 1 -2. However, this is an IRA appeal , not a removal appeal. Therefore, the agency is not required to prove its charge s by preponderant evidence; rather, the only merits issue s before the Board are whether the appellant has demonstrated that whistleblowing or other protected activity was a contributing factor in one or more personnel actions and, if so, whether the agency has demonstrated by clear and convincing evidence that i t would have taken the same personnel action(s) in the absence of the whistleblowing or other protected activity. Agoranos v. Department of Justice , 119 M.S.P.R. 498 , ¶ 18 n.7 (2013) ; 5 C.F.R. § 1209.2 (c). It is true that the agency’s charges, specifically, the strength of the evidence in support of them, are a con sideration for the agency under its burden to show that it would have taken the action even in the absence of the appellant’s whistleblowing. Carr 3 v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999) . But even if the appellant’s claim regarding HIPAA is true, it overlooks the fact that the individuals for w hom she scheduled appointments, after accessing their heal th records on her G overnment computer, were her family members, and that doing so is prohibited by a provision on Ethical Conduct in the Indian Health Manual. Initial Appeal File (IAF) , Tab 30 at 1 9. In addressing the agency’s burden in this regard, the administrative judge carefully weighed all the evidence, Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012) ; IAF, Tab 50, Initial Decision (ID) at 19 -22, but found, relying on the criteria set forth by the Board in Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987),2 that the agency’s evidence was more credible than the appellant’s, ID at 22 -26, and that the agency’s evide nce in support of charge 1 was strong, ID at 17 -27. Under the circumstances, the appellant has not shown that, based on her interpretation of HIPAA, the administrative judge erred in his consideration of charge 1. ¶3 Similarly, on review, the appellant attem pts to explain her intentions as to charge 4 in which the agency alleged that she violated the IT Rules of Behavior when she improperly responded “to all” to an email sent by the Acting Clinical Director , rather than just responding to the sender . PFR Fil e, Tab 1 at 2. To the extent the appellant is suggesting that her response constituted a protected disclosure for which the Acting Clinical Director retaliated against her, id. at 3, the administrative judge found that she had not exhausted her remedy bef ore the Office of Special Counsel as to that purported disclosure and had not, therefore , 2 In Hillen , the Board found that, to resolve credibility issues, an administrative judge must identify the factual questions in dispute, summarize the evidence on each disputed question, state which version he believes, and explain in detail why he found the chosen version more credible, considering such factors as : (1) the witness ’s opportunity and capacity to observe the event or act in question; (2) the witness ’s character; (3) any prior inconsis tent statement by the witness; (4) a witness ’s bias, or lack of bias; (5) the contradiction of the witness ’s version of events by other evidence or its consistency with other evidence; (6) the inherent improbability of the witness ’s version of events; and (7) the witness ’s demeanor. Hillen , 35 M.S.P.R. at 458. 4 established the Board’s jurisdiction over it ,3 ID at 29; IAF, Tab 35 at 3. The appellant has not taken exception to the administrative judge ’s finding on exhaustion. Further, as noted above, while the agency is not required to prove the charges in an IRA appeal, 5 C.F.R. § 1209.2 (c), the Board must consider the strength of its evidence in support of its charges under its burden to show that it would have taken the same action in the absence of the appellant’s whistleblowing. Carr , 185 F.3d at 1323. Regarding charges 4 and 5, in which the agency alleged that the appellant took an inappropriate tone i n her response to the email, the administrative judge thoroughly reviewed the parties’ evidence, Whitmore , 680 F.3d at 1368, finding that the email that the appellant improperly distributed widely was disrespectful, and concluding that the agency’s evidenc e in support of charges 4 and 5 was strong. ID at 27 -30. Under the circumstances, we find that the appellant has not shown that the administrative judge erred in his consideration of charges 4 and 5. The appellant also has provided no basis for disturbing the administrative judge’s thorough and well -reasoned findings as to the remaining Carr factors, and we agree with the administrative judge that the agency met its burden.4 ¶4 The appellant also argues on review that the deciding official violated her due process rights, alleging that he “never reviewed any documents” and “did not review [her] response letter.” PFR File, Tab 1 at 2. Although the record does not appear to support the appellant’s claim, a claim of denial of due process may not, in fact, be raised in an IRA appeal. Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 16 (2016) ; 5 C.F.R. § 1209.2 (c). 3 Despite his finding on exhaustion, the administrative judge afforded the appellant the opportunity at hearing to explain how she reasonably believed she was disclosing wrongdoing in her email, but he found that she failed to establish that claim. ID at 29-30. 4 We have reviewed the relevant legislation enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. 5 NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C . § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the fo llowing summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regardin g which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the appl icable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a parti cular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review wi th the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 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 recei ves this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and 7 to waiver of any requirement of prepa yment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Boar d’s 8 disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U. S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Cir cuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Pet itioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any atto rney will accept representation in a given case. 6 The original statutory provision that provi ded for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file pet itions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to Novem ber 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	GREVE_TONIE_M_DE_1221_15_0540_W_1_FINAL_ORDER_2028137.pdf	2023-05-04	null	DE-1221	NP
3,182	https://www.mspb.gov/decisions/nonprecedential/WILSON_LAURA_CB_7121_22_0006_V_1_FINAL_ORDER_2028319.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LAURA WILSON, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency. DOCKET NUMBER CB-7121 -22-0006 -V-1 DATE: May 4, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Laura Wilson , Sun City, Arizona, pro se. Sundeep R. Patel , San Francisco, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 The appellant has filed a request for review of an arbitrator’s decision that denied her grievance of her removal . 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 dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 appellant’s request for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.155 (b). BACKGROUND ¶2 The appellant was formerly employed as a Claims Specialist with the agency. Request for Review (RFR) File, Tab 1 at 1. On January 10, 2022, she filed an appeal challenging an arbitration decision with the Board’s Denver Field Office , and it wa s forwarded to the Office of the Clerk of the Board for docketing as a request for review of an arbitrator’s decision. RFR File, Tab 2 at 1. The appellant’s request included a copy of the Board’s standard appeal form, a removal proposal letter , a copy of a December 7, 2021 order from a Magistrate Judge for the U.S. District Court for the District of Arizona , and other documents seemingly related to her grievance . RFR File, Tab 1. In her initial request for review, the appellant asserted that the agency “mislead [her] in the next steps after Arbitration as [she] was notified on 12/7/2021 by the Judge in the U.S. District Court of Appeals in Arizona that [she] needed to file MSPB on the Arbitrator[’]s decision.” Id. at 5. Further , the December 7, 2021 Ma gistrate Judge’s order identified that the arbitrator issued a decision denying the appellant’s grievance on June 4, 2020 . Id. at 108. However, the appellant’s submission did not include a copy of the arbitrator’s decision . ¶3 The Office of the Clerk of t he Board issued an acknowledgment order that set forth the jurisdictional and timeliness requirements that the appellant must meet to obtain review of the arbitration decision . RFR File, Tab 2 at 2 -3. It ordered the appellant to file evidence and argument to prove that the Board has jurisdiction over the request for review and that the request for review was timely and/or there existed good cause for any delay in filing her request for review. Id. at 2-4. The appellant did not respond to the ackn owledgment order , and the agency did not submit a response to the appellant’s request for review. 3 DISCUSSION OF ARGUME NTS ON REVIEW The appellant’s request for review is untimely filed without good cause shown for the delay. ¶4 The Board has jurisdiction ov er a request for review of an arbitration decision 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 decision has been issued. Scanlin v. Social Security Administration , 2022 MSPB 10 , ¶ 4; 5 C.F.R. § 1201.155 (a)(1), (c); see 5 U.S.C. § 7121 (d). Further, a request for review of an arbitrator’s decision is timely if filed 35 days from the issuance of the arbitration decision or, if the appellant shows that she received the decision more t han 5 days after it was issued, within 30 days after the date she received the decision. Kirkland v. Department of Homeland Security , 119 M.S.P.R. 74 , ¶ 4 (2013); 5 C.F.R. § 1201.155 (b). ¶5 The appellant failed to respond to the acknowledgment order regarding timeliness and failed to include a copy of the final arbitration decision with her request for review . However, as indicated above, the Magistrate Judge’s order identifie d June 4, 2020 , as the date the arbitrator issued a decision denying the appellant’s grievance . Further, there is additional evidence pertaining to the timeliness of her request for review. Prior to forwarding the appellant’s request for review to the Board, an administra tive judge in the Denver Field Office initially docketed the appeal as an appeal of the agency’s removal decision , and the parties submitted pleadings to the record in that appeal . Wilson v. Social Security Administration , MSPB Docket No. DE-0752 -22-0084 -I-1, Initial Appeal File (0084 IAF), Tabs 1, 10. One such pleading included a copy of the agency 4 removal decision letter and the June 4, 2020 final arbitration decision denying the appellant’s grievance. 0084 IAF, Tab 7 at 6 -56. ¶6 As set forth in the Jan uary 30, 2019 removal decision, the agency removed the appellant based on a charge of misuse of official time with one specification, a charge of failure to follow instructions with two specifications, and a charge of lack of candor with three specifications. 0084 IAF, Tab 7 at 6 -12. The removal decision informed the appellan t of her options for contesting the agency action. Id. at 8 -12. The appellant’s union grieved the removal action, and agency management denied the grievance. RFR File, Tab 1 at 114 -29. The union subsequently invoked arbitration on the appellant’s behal f, and following a hearing, the arbitrator issued a decision on June 4, 2020, denying the appellant’s grievance. 0084 IAF, Tab 7 at 13 -56. Because the appellant does not claim that she received the arbitration decision more than 5 days after the June 4, 2020 decision was issued, she should have filed a request for review with the Board by July 9, 2020; thus, her request was untimely by approximately 1 year and 6 months. ¶7 The appellant has the burden of proving by preponderant evidence that the request wa s timely filed with the Board. 5 C.F.R. § 1201.56 (b)(2)(i)(B). The Board will dismiss an untimely request unless the appellant establishes good cause for the delayed filing. Kirkland , 119 M.S.P.R. 74 , ¶ 5. To establish good cause, the appellant must show that she exercised due diligence or ordinary prudence under the particular circumstances of the case. Id.; see 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 the excuse and the showing of due diligence, whether the appellant is proceeding pro se, and whether she has presented evidence of the existence of cir cumstances beyond her control that affected her ability to timely file the request for review. Kirkland , 119 M.S.P.R. 74 , ¶ 5 ; see Moorman v. 5 Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table). ¶8 As previous ly noted, the acknowledgment order informed the appellant that a request for review of an arbitration decision is timely if it was filed 35 days from the issuance of the decision or, if the decision was received more than 5 days after it was issued, within 30 days after the date of receipt. RFR File, Tab 2 at 3. It ordered her to provide evidence and argument on the issue of timeliness and warned her that noncompliance could result in dismissal of her request for review, and the appellant failed to respon d to the order and to include a copy of the final arbitration decision with her request for review . Id. at 1, 3. Consequently, the appellant has failed to show good cause for her filing delay. See Beckley v. U.S. Postal Service , 43 M.S.P.R. 397 , 399 (1990) (noting that in the interest of judicial efficiency and fairness, regardless of how minimal the delay, the Bo ard will not waive its timeliness requirements in the absence of good cause shown). ¶9 Nevertheless, an agency’s failure to notify an employee of her Board appeal rights when such notification is required generally constitutes good cause for late filing. Kirkland , 119 M.S.P.R. 74 , ¶ 6. The Board has also made clear that the agency’s notice must be explicit and must, among other things, inform the employee “[w] hether there is any right to request Board review of a final decision on a grievance in accordance with ” the provisions governing requests for Board review of a rbitrators’ decisions. McCurn v. Department of Defense , 119 M.S.P.R. 226, ¶ 11 (2013); Kirkland , 119 M.S.P.R. 74 , ¶ 8.3 Thus, when an agency provides inadequate notice of Board appeal rights, the appellant is not required to show that she exercised due diligence in attempting to discover her appeal rights 3 As noted in McCurn , the Board revised its regulations after Kirkland was issued, but the revision did not change an agency’s obligation to explicitly inform an appellant of her right to request Board review of an arbitration decision within 35 days of issuance. McCurn , 119 M.S.P.R. 226 , ¶ 11 n.5. 6 but rather must show diligence in filing the appeal after learning that she could. McCurn , 119 M.S.P.R. 226 , ¶¶ 12 -13; Kirkland , 119 M.S.P.R. 74 , ¶ 6. ¶10 Unlike in McCurn and Kirkland , the agency explicitly advised the appellant in its removal decision of her r ight to request review of the final arbitration decision on her grievance to the Board. Specifically, the removal decision provides a roadmap for pursuing a grievance raising a claim of illegal discrimination from the pre -arbitration stage through a reque st for Board review. 0084 IAF, Tab 7 at 8 -9. Thus, the appellant cannot establish that good cause exists for her untimeliness based on the agency’s failure to notify her of her right to request review of the arbitration decision with the Board.4 ¶11 Finall y, to whatever extent the appellant appears to allege that her union representative’s failure to notify her of her right to request review of the arbitration decision with the Board is the cause of her untimeliness, it is well settled that an appellant is responsible for the errors of her chosen representative . See, e.g. , Miller v. Department of Homeland Security , 110 M.S.P.R. 258 , ¶ 11 (2008); Sofio v. Internal Revenue Service , 7 M.S.P.R. 667 , 670 (1981) ; cf. McCurn , 119 M.S.P.R. 226 , ¶ 13 (acknowledging the well -settled principle that an appellant is responsible for the errors of his representative and clarifying that the critical issue in that case was not the appellant’s attorney’s failure to inform the appellant of his Board appeal rights but the agency’s failure to give the appellant proper notice of his right to request review of the arbitration decision before the Board) . Aside from her bare asser tion that she was misled regarding the next steps after the arbitration decision, the appellant has not provided any additional evidence or argument suggesting that her untimeliness was the product of deception, negligence, or malfeasance by her representa tive. See Hamilton v. 4 In McCurn , 119 M.S.P.R. 226, ¶ 11 n.6, the Board made clear that its regulations do not impose on arbitrators an obligation to notify appellants of their right to further appeal in matters subject to Board review . Consequently, the arbitrator’s failure to provide such notice here also does not establish good cause for the appellant’s untimely filing. 0084 IAF, Tab 7 at 13 -56. 7 Department of Homeland Security , 117 M.S.P.R. 384 , ¶ 13 (2012) (finding that the appellant’s claim of receiv ing misguided advice from his attorney was unpersuasive because he is responsible for the errors of his chosen representative) ; cf. Pacilli v. Department of Veterans Affairs , 113 M.S.P.R. 526 , ¶ 13 (explaining that, although an appellant generally is responsible for the errors of his chosen representative, an exception may lie when the appellant establishes that her diligent efforts to prosecute an appeal were thwarted without her knowledge by her attorney’s deceptions, negligence, or malfeasance), aff’d , 404 F. App’x 466 (Fed. Cir. 2010) . ¶12 Accordingly, we dismiss the appellant’s request for review as untimely filed. This is the final decision of the Merit Systems Protection Board regarding the timeliness of the appellant’s request for review of the arbitration decision. NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U. S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requi rements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicat ed in the notice, the Board cannot advise which option is most appropriate in any matter. 8 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 9 were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 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 deci sion. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees , costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 10 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEO C via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited p ersonnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of competent jurisdiction.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 Dece mber 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for t he Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for info rmation regarding pro bono representation for Merit Systems Protection Board appellants before the 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/Court Websites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	WILSON_LAURA_CB_7121_22_0006_V_1_FINAL_ORDER_2028319.pdf	2023-05-04	null	CB-7121	NP
3,183	https://www.mspb.gov/decisions/nonprecedential/MUHAMMAD_DARREN_CH_0714_19_0358_I_1_FINAL_ORDER_2028337.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DARREN MUHAMMAD, SR. , Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER CH-0714 -19-0358 -I-1 DATE: May 4, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Darren Muhammad, Sr. , Pike Road, Alabama, pro se. Amber Groghan and Nicholas Kennedy , Akron, Ohio, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has petitioned for review of the October 1, 2019 initial decision affirming his removal . Initial Appeal File, Tab 36 , Initial Decision at 1-2, 16 ; Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the appeal as settled. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c). 2 ¶2 After the filing of the petition for review, the parties submitted a document entitled “SETTLEMENT AGREEMENT ” signed and dated by the appellant and the agency on March 7, 2023 . PFR File, Tab 4 at 4-6. The document provides, among other things, that the a ppellant would withdraw his MSPB appeal. Id. at 5. ¶3 The Board retains jurisdiction to enforce a settlement agreement if it has been entered into the record for that purpose. Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 16, 21 (2017). If the parties enter an agreement into the record and it is approved by the administrative judge, it will be enforceable by the Board unless the parties clearly specify that they do not want Board enforcement. Stewart v. U.S. Postal Service , 73 M.S.P.R. 104 , 107 -08 (1997); see 5 C.F.R. § 1201.41 (c)(2)(i) (provid ing that a settlement agreement will be made a part of the record, and the Board will retain jurisdiction to ensure compliance, if the par ties offer it for inclusion into the record and the judge approves it). ¶4 Here, we find that the parties have ente red a settlement agreement into the record and understand its terms . PFR File, Tab 4 at 4 -6. Additionally , although the agreement is silent c oncerning whether the parties intend for the Board to retain enforcement authority, nothing in the agreement clearly specifies that the parties do not wish for the Board to retain enforcement authority over the agreement. See Stewart , 73 M.S.P.R. at 107 -08; 5 C.F.R. § 1201.41 (c)(2)(i) . In addition, we find that the agreement is lawful on its face and freely entered into, and we accept the settlement agreement into the record for enforcement purposes. Accordingly, we find that dismissing the appeal with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropri ate under these circumstances. ¶5 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). 3 NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS If the agency or the appella nt 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 RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1 ). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failu re to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have que stions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is mos t 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 f ile a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washin gton, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court ’s website, www.cafc.uscourts.gov. Of particular relevance is the court ’s “Guide for Pro Se Petitioners and Appellants, ” which is contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probon o for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a g iven case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in p art, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal C ircuit), within 30 calendar days after you 5 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 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.uscou rts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decis ion. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to t he 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 p rotected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board ’s disposition of allegations of a prohib ited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D), ” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circui t 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, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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 contain ed within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono fo r information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator /CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MUHAMMAD_DARREN_CH_0714_19_0358_I_1_FINAL_ORDER_2028337.pdf	2023-05-04	null	CH-0714	NP
3,184	https://www.mspb.gov/decisions/nonprecedential/GRAHAM_JONATHAN_PIERRE_DC_1221_15_0661_W_3_FINAL_ORDER_2028365.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JONATHAN PIERRE GRAH AM, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DC-1221 -15-0661 -W-3 DATE: May 4, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jonathan Pierre Graham , Garner, North Carolina, pro se. Tamiesha C. Robinson -Asbery , Aberdeen Proving Ground, Maryland, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The app ellant has filed a petition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the cour se of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite th e petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that 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 d ecision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant filed an IRA appeal in which he alleged that the agency “released” him, “select[ing him] for termination,” in retaliation for disclosing violations of law in connection with the agency’s failure to use “Skills Knowledge and Ability” and for f iling an equal employment opportunity (EEO) complaint in May 2012 alleging age discrimination and the agency’s “failure to follow the required laws of 5 USC.” Graham v. Department of the Army , MSPB Docket No. DC -1221 -15-0661 -W-1, Initial Appeal File (IAF) , Tab 1 at 5. He requested a hearing. Id. at 2. With his appeal, the appellant enclosed a Notification of Personnel Action, S tandard Form 50, showing that he was terminated from his Digital Systems Training Analyst position, effective January 3, 2015, on the expiration of his 3 -year term appointment. Id. at 7; IAF, Tab 7 at 19. The agency cited “lack of funding” as its reason for not extending the appellant’s appointment past the not -to-exceed date. IAF, Tab 7 at 24. ¶3 During adjudication, the appella nt requested that the appeal be dismissed pending the outcome of an investigation into matters he claimed were at issue in 3 the appeal, IAF, Tab 8, and, on that basis, the administrative judge dismissed the appeal without prejudice, Graham v. Department of the Army , MSPB Docket No. DC-1221 -15-0661 -W-1, Initial Decision at 1 -3 (May 29, 2015). The appellant timely refiled the appeal, Graham v. Department of the Army , MSPB Docket No. DC -1221 -15-0661 -W-2, Appeal File, Tab 1, but, because the investigation was s till pending, the administrative judge again dismisse d the appeal without prejudice, Graham v. Department of the Army , MSPB Docket No. DC-1221 -15-0661 -W-2, Initial Decision at 3 (Mar. 25, 2016). ¶4 After the appellant sought another continuance, Graham v. Dep artment of the Army , MSPB Docket No. DC -1221 -15-0661 -W-3, Appeal File (W -3 AF), Tab 1, the administrative judge issued an Order on Jurisdiction and Proof Requirements regar ding the appellant’s IRA appeal, W-3 AF, Tab 3. After reviewing the parties’ submis sions, W -3 AF, Tabs 4 -7, including the contents of the complaint the appellant filed with Office of Special Counsel (OSC), W -3 AF, Tab 6 at 24-32, and OSC’s close -out letter, id. at 33 -34, the administrative judge found that the appellant exhausted his rem edy before OSC as to his allegation that he received lower scores based on his evaluations after he disclosed to his supervisors that he was not working for the individual who wrote his evaluation, and that this disclosure was a factor in the agency’s deci sion to terminate him at the expiration of his appointment, as was the EEO complaint he filed in May 2012. W-3 AF, Tab 8, Initial Decision (ID) at 9.2 2 The administrative judge found, however, that the appellant did not exhaust before OSC: (1) his alleged disclosure to a management official that he would tell another management official about all of the issues in the office; (2) his alleged disclosure t o management officials that the agency violated Department of Defense and Department of the Army policy by failing to follow the merit system principles in the process it employed to retain some, but not all, similarly situated term employees; (3) his alle ged disclosure regarding his attempts to recruit other employees to raise issues of age discrimination; and (4) his alleged disclosures of theft and conspiracy within the work environment, including statements made during the investigation into those alleg ations. ID at 9-10. 4 ¶5 The administrative judge found, however, that the appellant did not make a protected disclosure that he exhausted before OSC.3 ID at 11. The administrative judge found that the appellant’s disclosures regarding age discrimination are not protected disclosures, id., and that he did not nonfrivolously allege that the agency violated a law, rule, or regulatio n when he reported that he was given his mid -year evaluation by an individual who was not his supervisor during the rating period because that person was the appellant’s supervisor at th e time of the evaluation, ID at 11 -12. The administrative judge further found that the appellant failed to nonfrivolously allege that the agency retaliated against him for engaging in the EEO process because he did not allege that he was thereby seeking redress as to remedying a violation of 5 U.S.C. § 2302 (b)(8).4 5 U.S.C. § 2302 (b)(9)(A)(i ); ID at 13 -14. Therefore, the administrative judge dismissed the IRA app eal for lack of jurisdiction. ID at 1, 15. ¶6 The appellant has filed a petition for review, Petition for Review (PFR) File, Tab 1, to which the agency has responded in opposition , PFR File, Tab 3. ANALYSIS ¶7 On review, the appellant argues that he made protec ted disclosures in a May 19, 2012 letter he wrote to a management official in which he reported that a Team Lead had impersonated a military officer, committed time fraud, and 3 Notwithstanding this statement, it is clear that the administrative judge applied the analysis appropriate at this jurisdictional stage of the proceeding to find that the appellant failed to nonfrivolously allege that he made a prote cted disclosure. ID at 12; Yunus v. Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001) ( finding that the Board has jurisdicti on over an IRA appeal if the appellant has exhausted his or her administrative remedies before OSC and makes nonfr ivolous allegations that: (1) he engaged in whistleblowing activity by making a protected disclosure; and (2) the disclosure was a co ntributi ng factor in the agency’ s decision to take or fail to take a personnel action). 4 Based on these findings, the administrative judge decided the case on the written record without convening the requested hearing. ID at 14. 5 improperly used his G overnment credit card. PFR File, Tab 1 at 1; W -3 AF, Tab 4, Subtab 4. Under 5 U.S.C. § 1214 (a)(3), an employee is required to “seek corrective action from [OSC] before seeking corrective action from the Board” through an IRA appeal. Miller v. Federal De posit Insurance Corporation , 122 M.S.P.R. 3 , ¶ 6 (2014), aff’d , 626 F. App’x 261 (Fed. Cir. 2015). The substantive requirements o f exhaustion are met when an appellant has provided OSC with a sufficient basis to pursue an investigation. Chambers v. Department of Homeland Security , 2022 MSPB 8 , ¶ 10. The Board’s jurisdiction over an IRA appeal is limited to those issues that have been previously raised with OSC, but appellants may give a more detailed account of their whistleblowing activities before the Board than they did to OSC. Id. Appellants may demonstrate exhaustion of their OSC remedies with evidence regarding their initial OSC complaint and other communicat ions with OSC concerning their allegations. See Baldwin v. Department of Veterans Affairs , 113 M.S.P.R. 469, ¶ 8 (2010). Here, the appellant submitted only his original OSC complaint, IAF, Tab 1 at 10 -15, and OSC’s close -out letter.5 Id. at 16 -17. Our review of these documents reveals t hat the appellant did not exhaust before OSC the matters he now raises on petition for review. Because he did not exhaust his remedy as to those claims, the Board lacks jurisdiction to consider them. Chambers , 2022 MSPB 8 , ¶ 11. ¶8 Similarly, the appellant argues on review that the administrative judge should have considered his claim that the agency falsely charged him with theft, although he acknowledges that this matter was “not ruled on as a complaint.” PFR File, Tab 1 at 4. The administrative judge properly declined to consider this claim because the appellant failed to raise such allegations to OSC. Mason , 5 The appellant did submit belo w an earlier OSC complaint he filed in 2014 and OSC’s close -out letter. W-3 AF, Tab 4, Subtab 1 . The administrative judge found that the appellant did not assert that he was seeking review of this complaint, and therefore she did not consider it. ID at 8 n. 6. The appellant has not ch allenged that finding on review and we see no reason to disturb it. 6 116 M.S.P.R. 135 , ¶ 8; ID at 5 n.5. The appellant also argues on review that “[n]ew evidence was not exhausted to the OSC but was submitted to this Court [sic] for consideration . . . . ” PFR File, Tab 1 at 3. The appellant has not identified the “new evidence.” With his pet ition, he has submitted two documents, but both were submitted below. Id. at 6-19, IAF, Tab 4, Subtab s 4, 8. Because these documents are a part of the record below, they do not constitute new evidence. Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980). ¶9 The appellant argues for the first time on review that, in terminating him at the end of his appointment, the agency violated the merit system principles. PFR File, Tab 1 at 2. The Board will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’ s due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). In any event, even when an employee has established the Board’s jurisdiction over his IRA appeal such that the merits of the agency’s action are adjudicated, the Board will not consider any affirmative defenses. 5 C.F.R. § 1209.2 (c); Corthell v. Department of Homeland Security , 123 M.S.P.R. 417 , ¶ 16 (2016). Here, as noted, the appellant has failed to establish Board jurisdiction.6 ¶10 Finally, the appellant asserts on review that he is not a lawyer and cannot afford one, suggesting presumably that, for that reason, he has bee n unable to present his case in a more favorable light. PFR File, Tab 1 at 2. The consideration the Board affords pro se litigants as they pursue their appeals does not extend to a less strict interpretation of the law. Moreover, it is well established that an appellant is responsible for the errors of his chosen representative . Sofio v. Internal Revenue Service , 7 M.S.P.R. 667 , 670 (1981). 6 We have reviewed the relevant legislation enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. 7 NOTIC E 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 summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for 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. 8 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono re presentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 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 t he action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and 9 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed th rough the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you recei ve this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Was hington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5 SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no ch allenge to the Board’s 10 disposition of allegations of a prohibited personnel p ractice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 ori ginal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, perma nently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circui t Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	GRAHAM_JONATHAN_PIERRE_DC_1221_15_0661_W_3_FINAL_ORDER_2028365.pdf	2023-05-04	null	DC-1221	NP
3,185	https://www.mspb.gov/decisions/nonprecedential/DABNER_CINDY_M_CH_1221_17_0112_W_1_REMAND_ORDER_2027654.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CINDY M. DABNER, Appellant, v. ENVIRONMENTAL PROTEC TION AGENCY, Agency. DOCKET NUMBER S CH-1221 -17-0112 -W-1 CH-1221 -18-0483 -W-1 DATE: May 3, 2023 THIS ORDER IS NONPRECEDENTIAL1 Chungsoo Lee , Feasterville, Pennsylvania, for the appellant. Debra K. Smith , Esquire, Chicago, Illinois, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member REMAND ORDER ¶1 The appellant has filed petition s for review of the initial decision s that dismissed her individual right of action (IRA) appeal s for lack of jurisdiction . We JOIN the appeals for processing under 5 C.F.R. § 1201.36 . For the reasons discussed below, we GRANT the appellant’s petition s for review , VACATE the 1A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 initial decisions, and REMAND these now joined appeal s to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 The appe llant is a GS -13 Environmental Scientist for the agency. Dabner v. Environmental Protection Agency , MSPB Docket No. CH-1221 -17-0112 -W-1, Initial Appeal File (0112 IAF), Tab 1 at 1 , Tab 16 at 4 . In July 2016, the appellant filed a whistleblower complaint with the Office of Special Counsel (OSC), alleging that the agency took multiple personnel actions against her between 2013 and 2016 , in retaliation for various disclosures that she had made between 2012 and 2016. 0112 IAF, Tab 1 at 5, 8-29. After 120 da ys had elapsed without a decision from OSC, on December 6, 2016, the appellant filed the instant IRA appeal. Id. at 4. ¶3 The administrative judge issued a n order , notifying the appellant of her jurisdictional burden and ordering her to file evidence and argument on the issue . 0112 IAF, Tab 3. After the record on jurisdiction closed, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. 0112 IAF, Tab 24, Initial Decision ( 0112 ID). She found that the appell ant failed to exhaust some of her claimed disclosures before OSC, and that the appellant failed to make a nonfrivolous allegation that any of her remaining disclosures were protected. 0112 ID at 3-10. ¶4 The appellant has filed a petition for review, disputi ng the administrative judge’s jurisdictional analysis. Dabner v. Environmental Protection Agency , MSPB Docket No. CH-1221 -17-0112 -W-1, Petition for Review (0112 PFR ) File, Tab 1. The agency has not filed a response. ¶5 Around the time that she filed her pet ition for review in the first appeal, on March 15, 2018, the appellant filed a second whistleblower complaint with OSC , again alleging that the agency retaliated against her for various protected disclosures . Dabner v. Environmental Protection Agency , MSP B Docket 3 No. CH-1221 -17-0483-W-1, Initial Appeal File (0 483 IAF), Tab 1 at 22 -25. After 120 days had elapsed without a decision from OSC, on December 6, 2016, the appellant filed another IRA appeal . 0483 IAF, Tab 1. ¶6 The administrative judge notified the appellant of her jurisdictional burden in that appeal as well , and after the record on jurisdiction closed, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. 0483 IAF, Tab 32, Initial Decision ( 0483 ID). She found that the appellant was attempting to raise several claims that had already been litigated in her previous appeal, and that she was collaterally estopped from doing so . 0483 ID at 2-4. Regarding the appellant’s remaining claims, she found that the appellant failed to exhaust her administrative remedies before OSC and failed to make a nonfrivolous allegation that her disclosures were protected. 0483 ID at 5-8. ¶7 The appellant has filed a petition for review of that initial decision as well , disputing the administrative judge’s jurisdictional analysis. Dabner v. Environmental Protection Agency , MSPB Docket No. CH-1221 -17-0112 -W-1, Petition for Review (0 483 PFR ) File, Tab 1. The agency has not filed a response. ANALYSIS ¶8 To establish Board ju risdiction over an IRA appeal, an appellant must show by preponderant evidence that she exhausted her remedies before OSC, and make nonfrivolous allegations that: (1) she made a disclo sure described under 5 U.S.C. § 2302 (b)(8) or engaged in a protected acti vity 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). Li nder v. Department of Justice , 122 M.S.P.R. 14 , ¶ 6 (2014); 5 C.F.R. § 1201.57 (a)(1). The U.S. Court of Appeals for the Federal Circuit has held that the Board may not deny jurisdiction by crediting the agency’s interpretation of the evidence as to whether 4 the alleged disclosures fell within the protected categori es or whether the disclosures were a contributing factor in an adverse personnel action. Hessami v. Merit Systems Protection Board , 979 F.3d 13 62, 1368 -69 (Fed. Cir. 2020). The appellant has made a nonfrivolous allegation that she made two disclosures protected under 5 U.S.C. § 2302 (b)(8) (A), and engaged in one activity protected under 5 U.S.C. § 2302 (b)(9)(C) and another activity protected under 5 U.S.C. § 2302 (b)(9)(D) . ¶9 Because we have joined these appeals for processing, we find it unnecessary to decide whether the administrative judge correctly applied the doctrine of collateral estoppel in the second appeal. Nevertheless, we agree with her that the ten different discl osures and activities that the appellant raised in these two appeals overlap to a certain extent. 0483 ID at 2 -3. We will address each of these matters in turn. ¶10 Under Disclosure 1, the appellant alleged that, between 2009 and 2010, she disclosed gross mi smanagement and gross waste of funds , violation s of 5 U.S.C. § 2302 , Federal Acquisition Regulations, and Environmental Protection Agency Acquisition Regulations. 0112 IAF, Tab 9 at 4. The admini strative judge found that the appellant failed to exhaust her administrative remedies with respect to this claim because she did not raise it with sufficient specificity in her OSC complaint. 0112 ID at 5; 0112 IAF, Tab 1 at 20. ¶11 On petition for review, the appellant disputes the administrat ive judge’s exhaustion analysis . 0112 PFR File, Tab 1 at 14-15. However , regardless of whether the appellant exhausted her administrative remedies, we find that she has failed to make a nonfrivolous allegation that she made a protected disclosure.2 2 The appellant alleged in her Board appeal that she disclosed these matters to the agency’s Of fice of Inspector General, an activity which could be protected under 5 U.S.C. § 2302 (b)(9)(C) regardless of whether it would otherwise be protected under 5 U.S.C. § 2302 (b)(8). 0112 IAF, Tab 9 at 4. However, the appellant made no such allegation before OSC, and we therefore find that she failed to exhaust her administrative remedies as to any such claim. See Ellison v. Merit Systems Prot ection Board , 7 F.3d 1031 , 1036 -37 (Fed. Cir. 1993). While this case was pending on review, the U.S. Court of Appeals for the Seventh Circuit issued Delgado v. Merit Systems 5 The appellant’s invocation of a series of statutes and regulations , without any explanation of why she believed that they had been violated or even a general description of the facts and circumstances sup porting her belief , is the sort of vague and conclusory assertion that the Board has found does not constitute a nonfrivolous allegation. 0112 IAF, Tab 1 at 20, Tab 9 at 4; see Francis v. Department of the Air Force , 120 M.S.P.R. 138, ¶ 11 (2013); Boechler v. Department of the Interior , 109 M.S.P.R. 542, 548 -49 (2008) , aff’d , 328 F. App’x. 660 (Fed. Cir. 2009) . The appellant asserts that there is no requirement for her “to cite the correct and specific rules and regulations [she] is alleging to have been violated.” 0112 PFR File, Tab 1 at 15. In some situations this may be true, see DiGiorgio v. Department of t he Navy , 84 M.S.P.R. 6 , ¶ 14 (1999), but the appellant in this case has also failed to identify the Government actions that were the subject of her alleged disclosures. ¶12 Under Disclosure 2, the appellant alleged that, between 2012 and 2015, she reported to various individuals in the agency that the agency was granting unfair preference and advantages to Caucasian employees. 0112 IAF, Tab 9 at 4 -5. Although the appellant identified these disclosures in her OSC complaint, 0112 IAF, Tab 1 at 20, the a dministrative judge found that she failed to articulate the matter to OSC with sufficient clarity and precision so as to satisfy the exhaustion requirement, 0112 ID at 4 -5. ¶13 On petition for review, the appellant argues that if she could have pursued discovery “she would have uncovered sufficient information and records to Protection Board , 880 F. 3d 913 (7th Cir. 2018), rejecting what it viewed as the “unusually stringent approach” of determining exhaustion “separately for each fact that an employee alleges rather than for each claim of protected disclosure or retaliation.” Id. at 923 (emphasis in original). Rather, the court concluded, the exhaustion requirement is satisfied if the appellant has provided OSC “sufficient information to permit a legally sophisticated reader to understand [the] charge of retaliation and to investigate further.” Id. at 927. We find that, to enable a legally sophisticated reader to understand a charge of retaliation for disclosing information to an Inspector General, an employee must at least inform the reader that she made such a disclosure. 6 establish a sufficient basis for OSC to pursue investigation.” 0112 PFR File, Tab 1 at 14. However, because jurisdiction in an IRA appeal is established by making nonfrivolous allegations and the appellant here retained documentation concerning her communications with OSC , we find that the administrative judge did not a buse her discretion in deciding these appeals prior to the completion of discovery, and that the appellant cannot demonstrate that her substantive rights were thereby prejudiced . E.g., 0112 IAF, Tab 1 at 8 -45; see Davis v. Department of Defense , 103 M.S.P.R. 516, ¶ 13 (2006); Sobczak v. Environmental Protection Agency , 64 M.S.P.R. 118 , 122 (1994). ¶14 Furthermore , even if the appellant had satisfied the exhaustion requirement, we find that the Board would still lack IRA jurisdiction over these disclosures because disclosures alleging race discrimination are covered under 5 U.S.C. § 2302 (b)(1)(A), rather than 5 U.S.C. § 2302 (b)(8) . Redschlag v. Department of the Army , 89 M.S.P.R. 589 , ¶ 84 (2001); Nogales v. Department of the Treasury , 63 M.S.P.R. 460 , 464 (1994). The Board has recently found that the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat . 1465, does not a lter the long standing principle that Title VII claims are excluded from coverage under the whistleblower protection statutes. Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 21-23. ¶15 Disclosures 3, 4, and 5 are similar in nature, and we will address them together. Disclosure 3 occurred during a November 2014 meeting , in which the appellant allegedly informed her first - and second -level supervisors that the Ohio Environmental Protection Agency (EPA) was failing to enforce environmental protection laws. 0112 IAF, Tab 9 at 3 ; 0483 IAF, Tab 4 at 4 -5. Disclosure 4 concerns a September 25, 2015 report that the appellant created, again informing her first- and second -level supervisors of the Ohio EPA’s failure to enforce environmental laws. 0112 IAF, Tab 9 at 5; 0483 IAF, Tab 4 at 5. Under Disclosure 5, the appellant alleged that, on November 3, 2015, she disclosed to her first - and se cond -level supervisors that the agency and the Ohio EPA were 7 duplicating inspections of Wright -Patterson Air Force Base, leading to a waste of time and money by the Ohio EPA .3 0112 IAF, Tab 9 at 5 ; 0483 , Tab 4 at 6 . The administrative judge did not separ ately address Disclosure 3 in her initial decision, but the appellant reasserts the matter on petition for review. 0112 PFR File, Tab 1 at 7. In her initial decision, the administrative judge considered Disclosures 4 and 5, but she found that the appella nt failed to make a nonfrivolous allegation that they were protected. 0112 ID at 7 -9. ¶16 The appellant disputes the administrative judge’s findings on these disclosures, and we have considered her arguments. 0112 PFR File, Tab 1 at 18, 20-21. To the ex tent that the administrative judge’s analysis took into account the agency’s interpretation of the appellant’s disclosures , we find that, under Hessami , 979 F.3d at 1368 -69, this was error.4 Nevertheless, we find that the appellant has failed to make a nonfrivolous allegation that any of these three disclosures were protected because she has not explained how the alleged shortcomings of the Ohio EPA might implicate the “interests and good name” of the Federal Government. Ivey v. Department of the Treasu ry, 94 M.S.P.R. 224 , ¶ 11 (2003) ( citing Arauz v. Department of Justice , 89 M.S.P.R. 529 , ¶ 7 (2001)). Reports by Government employees concerning the possible breach of law or regulation by a private party generally do not constitute protected disclosures. Willis v. Department of Agriculture , 141 F.3d 1139 , 1144 (Fed. Cir. 1998) , superseded by statute on other grounds as stated in Salazar v. Department of Veterans Affairs , 2022 MSPB 42 . The same principle applies to allegations of 3 To the extent that the Disclosure 5 could be construed as pertaining to an alleged waste of Federal funds, we find that the appellant could not have had a reasonable belief in this regard. Under 42 U.S.C. § 6927 (c), t he Federal inspection of hazardous waste facilities is mandatory regardless of whether a state with overlapping jurisdiction might also choose to conduct an inspection. We find that the appellant’s opinion that the agency wasted funds because it performed duties required by statute is not protected under 5 U.S.C. § 2302 (b)(8). 4 The administrative judge did not have the benefit of Hessami at the time she issued her initial decision. 8 wrongdoing by state and local governments. Such dis closures are protected only if they implicate the interests and good name of the Federal Government. See Miller v. Department of Homeland Security , 99 M.S.P.R. 175 , ¶¶ 11 -13 (2005) (finding that alleged misconduct by state law enforcement officers implicated the interests and good name of the Federal Government because the misconduct was alleged to have occurred in the presence of F ederal agents during their joint execution of a warrant); see also Covington v. Department of the Interior , 2023 MSPB 5, ¶¶ 15-19 (finding that the WPEA did not change the longstanding principle that a disclosure of wrongdoing committed by a non -Federal Government entity may be protected only when the Federal Government’s interests and good name are implicated in the alleged wrongdo ing). We find nothing in the record to suggest that such a connection might exist in this case. ¶17 Under Disclosure 6, the appellant alleged that, in November 2015, she disclosed to two agency managers that her personal health information had been sent unenc rypted to her supervisor , in violation of the Health Insurance Portability and Accountability Act (HIPAA) and the Privacy Act. 0112 IAF Tab 9 at 5 ; 0483 IAF, Tab 4 at 6 . In her initial decision, the administrative judge found that the appellant failed to exhaust her administrative remedies with respect to this disclosure. 0112 ID at 6. She found that HIPAA and the Privacy Act cover certain transmissions of specific information by designated entities, and that the appellant, in her OSC complaint, failed to specify who sent what to whom and under what conditions, thus making it impossible for OSC to conduct any type of investigation. 0112 ID at 5 -6. She further found that the appellant’s attempt to elaborate on her disclosure during the jurisdictional re sponse was insufficient to satisfy the exhaustion requirement . 0112 ID at 6. ¶18 On petition for review, the appellant disputes the administrative judge’s exhaustion analysis . 0112 PFR File, Tab 1 at 15 -16. However, regardless of whether the appellant migh t have exhausted this claim, we find that she failed to make a nonfrivolous allegation that she reasonably believed that the agency 9 violated HIPAA, the Privacy Act, or any other law , rule, or regulation . The appellant does not identify the party who sent the personally identifiable information to her supervisor, so it is impossible for us to determine whether the Federal Government might have initiated the transmission or whether the alleged wrongdoing was committed by a non -Federal enti ty, as with Disclosures 3, 4, and 5 discussed above. Moreover, even assuming that the Federal Government or an associated private entity transmitted this information, there is no indication that it was kept in a “system of records” so that its disclosure would be covered under the Privacy Act, see 5 U.S.C. § 552a (a)(5), (b) , or that the entity that transmitted the information was a “covered entity” or “business associate” such that the transmission would be covered under the HIPAA Privacy Rule, see 42 U.S.C. § 1320d -1(a); 45 C.F.R. §§ 164.500 (a), .502(a). The appellant’s failure to describe the facts and circumstances of this alleged transmission of information prevents us from making a finding that she reasonably believed that it constituted any violation of any law, rule, or regulation. ¶19 Under Disclosure 7 , the appellant alleged that , on November 17, 2015, she disclosed to her first - and second -level supervisors two violations of Federal environmental law at Wright -Patterson Air Force Base. 0112 IAF, Tab 9 at 5 ; 0483 IAF, Tab 4 at 6 . The administrative jud ge found that the appellant cited Wright -Patterson Air Force Base for violati ng contingenc y plan emergency procedures and allowing hazardous waste to accumulate for too long , but that her supervisor disagreed with the citation and ordered the appellant to draft a report returning the base to compliance. 0112 ID at 9. Considering the supervisor’s rationale, the administrative judge found that the appellant failed to make a nonfrivolous allegation that she reasonably believed that her disclosure evidenced a violation of law. 0112 ID at 9-10. ¶20 On petition for review, the appellant argues that the administrative judge erred in accepting her supervisor’s assessment of the underlying violations. 0112 PFR File, Tab 1 at 20 -21. We agree, and we find that the a dministrative judge 10 improperly considered the agency’s interpretation of the evidence in assessing the appellant’s prima facie case. See Hessami , 979 F.3d at 1368 -69. Restricting our analysis to the appellant’s pleadings and her OSC complaint s, we find that she made a nonfrivolous allegation that her November 17, 2015 disclosure evidenced a violation of law. Although the appellant did not identify the particular law s that she alleges Wright -Patterson Air Force Base violated, she has at least i dentified the general nature of the alleged violations.5 0112 IAF, Tab 1 at 20. Considering the low standard for a nonfrivolous allegation and the appellant’s professional expertise in this area, we find that she made a nonfrivolous allegation that she reasonably believed that such violation s occurred. See Embree v. Department of the Treasury , 70 M.S.P.R. 79, 85 (1996) (consider ing the appellant’s asserted subject matter expertise in finding that she made a nonfrivolous allegation of gross mismanagement in connection with agency collection efforts). We further find that the appellant raised this matter before OSC with sufficient clarity so as to satisfy the exhaustion requirement. 0112 IAF, Tab 1 at 20; 0483 IAF, Tab 1 at 23; see Ward v. Merit Systems Protection Board , 981 F.2d 521 , 526 (Fed. Cir. 1992) (stating that, to satisfy the exhaustion requirement of 5 U.S.C. § 1214 (a)(3) in an IRA appeal, an appellant must inform OSC of the precise ground of her charge o f whistleblowing, giving OSC a sufficient basis to pursue an investigation which might lead to corrective action). ¶21 Under Disclosure 8 , the appellant claims that, on April 7, 2016, she filed a Form 12 disclosure with OSC, alleging that the agency was fail ing to protect confidential business information. 0112 IAF, Tab 1 at 32 -45, 0483 IAF, Tab 4 at 6. The administrative judge found that the appellant failed to exhaust her 5 The appellant states that her disclosure concerned violations of 42 U.S.C. § 6926 and 40 C.F.R. § 271.16 (a)(3). 0112 IAF, Tab 9 at 8; 0483 IAF, Tab 1 at 23, Tab 4 at 6 . This does not seem correct because those provisions set forth the requirements that states must meet in order to administer certain hazardous waste programs. They set forth no substantive rules to govern contingency plan eme rgencies or the accumulation of hazardous waste . 11 administrative remedies with respect to this disclosure because making disclosures t o OSC ’s Disclosure Unit does not satisfy the exhaustion requirement under 5 U.S.C. § 1214 (a)(3); 0112 ID at 3; see Mason v. Department of Homeland Security , 116 M.S.P.R. 135 , ¶ 16 (2011) . She further found that the appellant ’s whistleblow er complaint did not list the filing of the Form 12 as a protected activity. 0112 ID at 3-4. ¶22 On petition for review , the appellant argues that she did, in fact, raise this matter in her whistleblow er complaint. 0112 PFR File, Tab 1 at 10 -11. The appellant is correct. 0112 IAF, Tab 1 at 24 ; 0483 IAF, Tab 1 at 23 . Further, we find that she raised the matter with sufficient specificity so as to satisfy the exhaustion requirement. 0112 IAF, Tab 1 at 24; 0483 IAF, Tab 1 at 23. We also find that, regardless of whether the content of the Form 12 disclosure would otherwise be protected under 5 U.S.C. § 2302 (b)(8), the disclosure itself constitutes protected activity under 5 U.S.C. § 2302 (b)(9)(C). See Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 12 (2016) . ¶23 Under Disclosure 9 , the appellant alleges that, in June or July 2016, she disclosed to her first - and second -level supervisors that they were committing a gross waste of funds by ordering the re -inspection of a hazardous waste facility that had already been issued an informal notice of violation. 0483 IAF, Tab 4 at 6. In her initial decis ion, the administrative judge found that the appellant failed to exhaust her administrative remedies as to this disclosure because, after the appellant filed her complaint, the OSC examiner emailed the appellant and asked her to provide a copy of the discl osure and any response she received, but the appellant merely responded, “I was removed from the case after emailing the EPA management of my whistleblower activity.” 0483 ID at 5; 0483 IAF, Tab 4 at 12, 14. ¶24 On petition for review, the appellant disputes the administrative judge’s exhaustion analysis. 0483 PFR File, Tab 1 at 12. We agree with the appellant that she exhausted her remedies with respect to this disclosure. Specifically, we 12 find that the appellant’s failure to respond fully to OSC’s follow -up inquiry is not dispositive of the issue, and in fact, it could be viewed as evidence that OSC actually followed up by investigating the matter. In any event, considering the contents of the whistleblower complaint itself, we find that the appellant pro vided OSC with the essential information about this disclosure, including approximately when she made it, the individuals who received it, and its subject matter. 0483 IAF, Tab 1 at 23. ¶25 We further find that the appellant has made a nonfrivolous allegati on that she reasonably believed that her disclosure evidenced a gross waste of funds or an abuse of authority. For purposes of the Whistleblower Protection Act (WPA), a “gross waste of funds” is a more than debatable expenditure that is significantly out of proportion to the benefit reasonably expected to accrue to the Government. Embree , 70 M.S.P.R. at 85. We find that the appellant has alleged sufficient facts that, if proven, could show that the agency spent time and resources conducting a completely unnecessary inspection of a hazardous waste facility that was of no benefit to the Government.6 0483 IAF, Tab 1 at 23, Tab 4 at 6. Under the WPA, an “abuse of authority” includes an arbitrary or capricious exercise of power by a Federal employee that res ults in personal gain or advantage to preferred other persons. Sirgo v. Department of Justice , 66 M.S.P.R. 261 , 267 (1995). We find that the appellant has nonfrivolously alleged that her disclosure evidenced a reasonable belief that her supervisors abused their authority by ordering a second inspection in order to drag out proceedings and help the business being inspected 6 The appellant does not specify how much she believes that this inspection cost to conduct, but she states that it was conducted by “a team of inspectors that included two attorneys.” 0843 IAF, Tab 4 at 6. It would therefore appear that the cost of conducting this inspection was more than de minimis. See S. Rep. No. 112 -155, at 8 (2012) (“[T]he Committee notes that, with respect to a disclosure of ‘gross mismanagement,’ a ‘gross waste’ of funds, or a ‘sub stantial and specific danger to public health or safety,’ the statute requires more than disclosure of de minimis wrongdoing.”), as reprinted in 2012 U.S.C.C.A.N. 589, 596. 13 to avoid the enfor cement action that should have been commenced against it. 0483 IAF, Tab 4 at 6. ¶26 Under Disclosure 10 , the appellant all eges that, on October 7, 2016, she acquiesced to her supervisor’s order to change her responses on a Technical Contact Review Checklist for an Ohio EPA grant work plan but signed the form “under duress” and wrote “[w]ill review the current budget upon receipt” in response to whether the budgeted costs were reasonable. 0483 IAF, Tab 4 at 7, 151-54, Tab 8 at 243 -44. She provided a series of emails showing that her supervisor directed her to change her responses to reflect that the Ohio EPA had an approved quality assurance project plan a nd quality management plan and to “mark the grant as approved” to comport with the appellant’s August 19, 2016 signed hard copy. 0483 IAF, Tab 4 at 151 -52. The emails also reflect that the appellant informed her supervisor that she did not agree with the directive because she had not been provided the Ohio EPA’s plans for review and did not believe that the budgeted cost associated with the project was reasonable. Id. at 151. The administrative judge found that the appellant failed to exhaust her admini strative remedies on this matter, and she further found that the appellant failed to make a nonfrivolous allegation that her disclosure was protected because it represented a mere disagreement with her supervisor about the use of agency authority. 0483 ID at 7-8. ¶27 On petition for review, the appellant has filed a closeout letter from OSC, reflecting that after the initial decision in her second appeal was issued, OSC became aware of her October 7, 2016 disclosure and considered whether it might form the bas is for a claim of whistleblower retaliation . 0483 PFR File, Tab 1 at 25-30. Under these circumstances, we find that the exhaustion requirement is satisfied . See Atkinson v. Department of State , 107 M.S.P.R. 136 , ¶ 12 (2007) (accepting evidence that the appellant submitted for the first time on review showing that he exhausted his OSC remedy); Hawkins v. Department of Commerce , 98 M.S.P.R. 107 , ¶¶ 7 -8 (2004) (remanding an IRA appeal that 14 became ripe while pending on petition for review because OSC terminat ed its inquiry and informed the appellant of his Board appeal rights). ¶28 We agree with the administrative judge that the appellant failed to make a nonfrivolous allegation that this disclosure was protected under 5 U.S.C. § 2302 (b)(8) . The appellant’s own submissions show that this claimed disclosure did not contain any allegations of danger or Government wrongdoing. Rather, it amounted to a disagreement with her supervisor’s instructions to amend her Technical Contact Review Checklist to show approval of the Ohio EPA’s project and management plans, and that the budgeted cost was reasonable. 0483 IAF, Tab 4 at 7, 151 -52. The Board has held that the statutory protection for whistleblowers is not a weapon in arguments over policy or a shield for insubordinate conduct. Webb v. Department of the Interior , 122 M.S.P.R. 248 , ¶ 8 (2015). A disclosure that an agency decision or ruling is legally incorrect is not a disclosure protected under the WPA . O’Donnell v. Department of Agriculture , 120 M.S.P.R. 94 , ¶¶ 14 -15 (2013) , aff’d , 561 Fed. App’x 926 (Fed. Cir. 2014). Even under the expanded protections afforded to whistleblowers under the WPEA , general philosophical or policy disagreements with agency decisions or actions are not protected unless they separately constitute a protected disclosure of one of the categories of wrongdoing listed in section 2302(b)(8)(A). Webb , 122 M.S.P.R. 248 , ¶ 8; see 5 U.S.C. § 2302 (a)(2)(D). Here, the appellant’s disagreements about whether to approve the Ohio EPA’s plans and the reasonableness of the budgeted cost do not amount to a nonfrivolous allegation of any of the covered categories of wrongdoing. ¶29 Nevertheless, we find that the appellant has made a nonfrivolous allegation that her resistance to her supervisor’s instructions constituted pro tected activity under 5 U.S.C. § 2302 (b)(9)(D), which protects an employee from retaliation for “refusing to obey an order that would require the individual to violate a law, rule, or regulation .” Specifically, the appellant alleged that her supervisor instructed her to indicate on the Technical Contact Review Checklist that she had reviewed 15 the Ohio EPA ’s Quality Assurance Plan , when in fact, she had not. Based on these allegations, we find that the appellant has made a nonfrivolous allegation that she refused, at least initially, to follow an order that would require he r to falsify a Federal document in violation of 18 U.S.C. § 1519 . ¶30 It appears that the appellant may have made Disclosure 7 during the normal course of her duties to investigate and disclose noncompliance with Federal environmental laws. The WPEA added a provision providing that “[i]f a disclosure is made during the normal course of duties of an employee, the disclosure shall not be excluded from subsection [ 5 U.S.C. § 2302 (b)(8)] if [the agency takes a personnel action] with respect to that employee in reprisal for the disclosure.” WPEA, Pub. L. No. 112 -199, § 101(b)(2)(C), 126 Stat. 1465, 1466 (codified at 5 U.S.C. § 2302 (f)(2) (2012)) . In December 2017, Congress amended section 2302(f)(2), adding language that the provision applies to disclosing employees “ the principal job function of whom is to regularly investigate and disclo se wrongdoing.” National Defense Authorization Act for Fiscal Year 2018 (2018 NDAA) , Pub. L. No. 115 -91, § 1097(c)(1)(B)(ii), 131 Stat. 1283, 1618 (2017). The Board has held that the 2018 NDAA clarified the intent of 5 U.S.C. § 2302 (f)(2) and therefore the language of that subsection as amended by the 2018 NDAA applies to all pending cases even if the events at issue occurred before the 2018 NDAA was enacted. Salazar , 2022 MSPB 42, ¶¶ 15-21. ¶31 The determination of whether a disclosure made in the normal course of duties is protected will o ften require factual findings best made after a more complete development of the record. Accordingly, that determination should be made as part of an appellant’s prima facie case and not at the jurisdictional stage of an IRA appeal. Therefore, the admini strative judge should provide the parties with an opportunity to provide evidence and argument on remand as to whether Disclosure 7 is covered by section 2302(f)(2) . To the extent section 2302(f)(2) applies , the appellant will also have the burden of prov ing, as part of her prima 16 facie case, that the agency took the alleged personnel actions in reprisal for Disclosure 7 . ¶32 In sum, we find that the appellant has made a nonfrivolous allegation that Disclosures 7 and 9 were protected under 5 U.S.C. § 2302 (b)(8)(A), Disclosure 8 was protected under 5 U.S.C. § 2302 (b)(9)(C) , and Disclosure 10 was protected under 5 U.S.C. § 2302(b)(9)(D) . We also find that the appellant has exhausted her administrative remedies with respect to these matters. The appellant has made a nonfrivolous allegation that the agency to ok personnel actions against her . ¶33 In these appeals, the appellant alleged that the agency took numerous retaliatory personnel actions against her between June 2013 and February 2018. 0112 IAF, Tab 9 at 6 -8; 0483 IAF, Tab 4 at 7 -9. However, because the ea rliest disclosure still at issue, Disclosure 7, did not occur until November 17, 2015, we decline to consider any alleged personnel actions that occurred prior to that date. See Mason , 116 M.S.P.R. 135 , ¶ 27 (finding that disclosures made after the personnel actions at issue could not have been contributing factors in those actions). The alleged personnel actions that occurred during the relevant time period include the following: (1) a 13 -day suspension effective February 11, 20167; (2) a June 1, 2016 order to undergo a psychiatric examination ; (3) 13 nonselections for appointment, detail, transfer, and reassignment between June 20, 2016 , and October 12, 2018 ; (4) denial of opportunity to participate in developmental programs on July 28, 2016 , and January 11, 2017 ; (5) an October 17, 2017 performance evaluation ; (6) a November 6, 2017 denial of monetary award ; and (7) a significant change in working conditions. 0122 IAF, Tab 9 at 6 -8; 0483 IAF, Tab 4 at 7-9. 7 The appellant listed the 13 -day suspension and the corresponding proposal as sepa rate personnel actions. 0112 IAF, Tab 9 at 8. Although the proposal could be viewed separately as a threatened personnel action , see Bacas v. Department of the Army , 99 M.S.P.R. 464 , ¶ 5 (2005), we find it more appropriate under the circumstances of this case to consider it as part and parcel of the suspension itself. 17 ¶34 Addressing each of these seven matters in turn, we find that the 13 -day suspension would constituted a “personnel action” under 5 U.S.C. § 2302 (a)(2)(A)(iii) . Likewise, a n order to undergo psychiatric examination is specifically listed as a pe rsonnel action under 5 U.S.C. § 2302 (a)(2)(A)(x).8 Nonselections and decisions on details, transfers, and reassignments also constitute personnel actions under 5 U.S.C. § 2302 (a)(2)(A)(i) and (iv).9 It appears that the two developmental programs that the appellant identified may have constituted training or education that could reasonably be expected to lead to a promotion or other favorable personnel action, and thus she has nonfrivolously alleged that the agency’s denial of her participation in these programs would be covered under 5 U.S.C. § 2302 (a)(2)(A)(ix ). The performance evaluation would constitute a personnel action under 5 U.S.C. § 2302 (a)(2)(A)(viii), and the denial of a monetary award would likely constitute a personnel action under 5 U.S.C. § 2302 (a)(2)(A)(ix) as a “de cision concerning pay and benefits.” See Hagen v. Department of Transportation , 103 M.S.P.R. 595, ¶ 13 (2006). ¶35 Finally, a signifi cant change in working conditions is a personnel action under 5 U.S.C. § 2302 (a)(2)(A)(xii). The appellant did not explicitly claim that she was subjected to a significant change in working condit ions, but she did allege that that she was denied the opportunity for telework and for flexibility in her work schedule. 0112 IAF, Tab 9 at 6, 8. Decisions about such matters are 8 The agency disputes the appellant’s characterization of this alle ged personnel action, arguing that it was not a psychiatric examination but was instead “Communication Enhancement and Professional Development” training. 0112 IAF, Tab 15 at 15. This is a dispute of fact that cannot be appropriately resolved at the juri sdictional stage of the proceedings. See Hessami , 979 F.3d at 1369. 9 The appellant characterizes some of these alleged personnel actions as denials of “transfer” and others as denials of “reassignment.” 0843 IAF, Tab 4 at 7 -9. In context, it appears th at the appellant may not be using these terms as they are defined in 5 C.F.R. § 210.102 (b). This distinction is not important at the jurisdictional stage, but it may become important dur ing the merits phase to identify accurately the type of personnel action at issue. 18 not separately enumerated as personnel actions under 5 U.S.C. § 2302 (a)(2)(A), but they can be part of a significant change in working conditions . See Rumsey v. Department of Justice , 120 M.S.P.R. 259 , ¶ 23 (2013) (finding that cancellation of the appellant’s telework agreement constituted a significant change in working conditions). In determining wheth er an appellant has suffere d a significant change in her working conditions, the Board must consider the alleged agency actions both collectively and individually and consider whether they have practical and significant effects on the overall nature and quality of her working condit ions. Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 16. It is no t clear whether the appellant will ultimate ly be able to prove by preponderant evidence that she was subjected to a significant change in working conditions, particularly because the record does not reveal what her telework and scheduling options were prior to November 17, 2015. However, we find t hat her pleadings are sufficient to raise a nonfrivolous allegation of a personnel action within the Board’s jurisdiction. In sum, we find that the appellant has made a nonfrivolous allegation that all of these matters, either alone or in combination, fit the definition of “personnel action” under 5 U.S.C. § 2302 (a)(2)(A). The appellant made nonfrivolous allegations that Disclosures 7, 8, 9 , and 10 contributed to these personnel actions. ¶36 We next d etermine whether the appellant has made a nonfrivolous allegation that Disclosures 7, 8, 9 , and 10 were contributing factor s in these claimed personnel actions. The most common way of proving contributing factor is through the knowledge/timing test of 5 U.S.C. § 1221 (e). Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 25 (2015). Under that test, an appellant can prove the contributing factor element through evidence that the official taking the personnel action knew of the whistleblowing disclosure and took the personnel action within a period of time such that a r easonable person could conclude that the disclosure was a contributing factor in the personnel action . Id. 19 ¶37 In this case, the appellant alleges that her first - and second -level supervisors were both personally aware of Disclosures 7 , 9, and 1 0, as of November 17, 2015, “June or July 2016 , and October 7, 2016 respec tively .”10 0112 IAF, Tab 9 at 5; 0483 IAF, Tab 4 at 6 -7. The appellant further alle ges that either one or both of these officials were involved in the 13 nonselections , the denial of opportunities to participate in developmental programs , the performance evaluation, and the denial of a monetary award . 0483 IAF, Tab 4 at 7-9. The record also shows that the appellant’s second -level supervisor was the proposing official in the 13 -day su spension. 0112 IAF, Tab 20 at 68. Although the alleged psychiatric examination appears to have been ordered by a different official, the Division Director, the record also shows that it was prompted by the first -level supervisor’s complaints to the Divis ion Director about the appellant’s behavior after she returned from her 13 -day suspension. Id. at 77 -79. We find that the possibility that the appellant’s first -level supervisor influenced the Division Director’s decision is sufficient to raise a nonfriv olous allegation that the Division Director had constructive knowledge of the appellant’s disclosure. See Marchese v. Department of the Navy , 65 M.S.P.R. 104 , 108 -09 (1994). ¶38 Regarding scheduling and telework, the appellant does not identify the officials who were involved in making these decisions, and the documentary evidence fails to shed any light on the issue. However, we take notice that a first - or second -level supervisor would typically be involved in decisions about scheduling and telework. In light of the low evidentiary burden at this stage of the appeal, we find that the appellant’s allegations are sufficient for us inf er that 10 We acknowledge that the imprecision with which the appellant pled the date of Disclosure 9 leaves an open question as to whether it could possibly have been a contributing factor in the June 20 and 22, 2016 nonselections for reassignment or the July 28, 2016 “notice of non nomination to the Capital Hill Program .” 0483 IAF, Tab 4 at 6-8. For jurisdictional purposes, however, we will give this pro se appellant the benefit of the doubt and assume that the disclosure predated all three of the se claimed personnel actions. 20 her first - and second -level supervisors, officials with actual knowledge of her disclosure, at least influenced the scheduling and telework decisions . Thus, with respect to Disclosures 7 , 9, and 10, the appellant has made a nonfrivolous allegation that the knowledge component of the knowledge/timing test is satisfied for every one of the alleged personnel actions. ¶39 Regarding the timing component, the record shows that the majority of these alleged personnel actions occurred within 1 or 2 years of th e disclosures. 0112 IAF, Tab 9 at 8; 0483 IAF, Tab 4 at 7 -9; see Peterson v. Department of Veterans Affairs , 116 M.S.P.R. 113 , ¶ 16 (2011) (holding that personnel actions taken within 1 to 2 years of the protected disclosure satisfy the timing prong of the knowledge/timing test). Although a few of the claimed personnel actions occurred after this 2-year period, we nevertheless fi nd that, for jurisdictional purposes, the timing component is satisfied for these as well be cause they could be fairly viewed as part of a continuum of related personnel actions that began shortly after the appellant’s disclosures . See Agoranos v. Departm ent of Justice , 119 M.S.P.R. 498 , ¶ 23 (2013) . For these reasons, we find that the appellant has made a nonfrivolous allegation t hat Disclosures 7 , 9, and 10 were a contributing factor in all of the above -described personnel actions, with the exception of the alleged personnel actions that predated them. ¶40 Disclosure 8 is a different matter. The record shows that, on April 5, 2016, the appellant filed a Form 12 disclosure with OSC concerning the agency’s alleged failure to protect confidential business information. 0112 IAF, Tab 1 at 3, 38 -45. However, t he appellant has not alleged, and there is otherwise no indication in the record , that any official involved in any of the claimed personnel actions had either actual or constructive knowledge of this activity during the relevant time period. In the absence of such evidence or allegation, the appellant has not made a nonfrivolous all egation of contributing factor under the knowledge/timing test. See Johnson v. Department of Defense , 95 M.S.P.R. 192, ¶¶ 9-10 (2003) , aff’d , 97 F. App’x 325 (Fed. Cir. 2004) . 21 ¶41 Nevertheless, the knowledge/timing test is but one way for an appellant to prove contributing factor. If an appellant has failed to make a nonfrivolous allegation of contributing factor under the knowledg e/timing test, the Board will consider whether she has met her burden by alternative means. Dorney v. Department of the Army , 117 M.S.P.R. 480 , ¶ 14 (2012) . Specifically, the Board will 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 proposing or deciding off icials, and whether these individuals had a desire or motive to r etaliate against the appellant. Id. ¶42 We find that the record is sufficient to support a nonfrivolous allegation of contributing factor under this standard. Specifically, in her Form 12 com plaint, the appellant directly accused her first - and second -level supervisors of being complicit in the mishandling of confidential business information. 0112 IAF, Tab 1 at 38. We find that such an accusation would be sufficient to create some retaliato ry motive. Furthermore, as explained above, the record is sufficient to support a nonfrivolous allegation that one or both of these officials were involved in each of the claimed personnel actions , and that the personnel actions occurred more or less with in the general timeframe that contributing factor might be inferred . The strength or weakness of the agency’s decisions to take or fail to take these various personnel actions is difficult to assess at this stage of the appeal, but on balance, we find tha t the appellant’s allegations are sufficient for jurisdictional purposes, and that she has raised a nonfrivolous allegation that (with the exception of the 13 -day suspension, which predated it) Disclosure 8 was a contributing factor in all of the claimed p ersonnel actions . See Marano v. Department of Justice , 2 F.3d 1137 , 1140 (Fed.Cir.1993) (stating that “the legislative history of the WPA emphasizes that ‘any’ weight given to the protected disclosures, either alone or even in combination with other factors, can satisfy t he ‘contributing factor’ test”); Jessup v. Department of Homeland Security , 107 M.S.P.R. 1 , ¶ 10 (2007) (finding that the appellant’s allegations of 22 contributing factor were minimally sufficient to meet the low standard of a nonfrivolous allegation). ¶43 For the reasons explained above, we find that the appellant has established jurisdiction over her appeal, and that she is entitled to an adjudication of the merits, including her requested hearing and an opportunity to conduct discovery. See id. On remand, t he issues will be limited to the following. First, the appellant will have the burden of proving her prima facie case by preponderant evidence by showing that Disclosures 7 and 9 were protected under 5 U.S.C. § 2302 (b)(8) (A) or section 2302(f)(2), as discussed above; Disclosure 8 was a protected activity under 5 U.S.C. § 2302 (b)(9)(C) ; Disclosure 10 was a protected activity under 5 U.S.C. § 2302 (b)(9)(D); the claimed personnel actions satisfy the definition of “personnel action” under 5 U.S.C. § 2302 (a)(2)(A) ; and her disclosures were a contributing factor in those personnel actions. If the appellant meets this burden, the agency will have the opportunity to prove by clear and convincing evidence that it would have taken the same personnel actions notwithstand ing the appellant’s protected disclosure or disclosures . See Runstrom v. Department of Veterans Affairs , 123 M.S.P.R. 169 , ¶ 12 (2016).11 In the remand initial decision, the administrative judge may reincorporate prior findings as appropriate, consistent with this Remand Order. 11 We note that the Board has recently issued final decisions in other ap peals in which the appellant may have raised some of the same alleged protected disclosures and activities that are at issue in this appeal. Dabner v. Environmental Protection Agency , MSPB Docket Nos. CH -4324 -17-0458 -I-1 and CH -0752 -17-0398 -I-1, Final Ord er (Apr. 28, 2023); Dabner v. Environmental Protection Agency , MSPB Docket Nos. CH-0752 -18-0572 -I-1 and CH -1221 -19-0175 -W-1, Final Order (May 1, 2023) . The parties will have an opportunity on remand to address the preclusive effect, if any, of the Board’s findings in those appeals. 23 ORDER ¶44 For the reasons discussed ab ove, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DABNER_CINDY_M_CH_1221_17_0112_W_1_REMAND_ORDER_2027654.pdf	2023-05-03	null	S	NP
3,186	https://www.mspb.gov/decisions/nonprecedential/THOMAS_STEPHANIE_DC_0752_16_0482_X_1_FINAL_ORDER_2027670.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD STEPHANIE THOMAS, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER DC-0752 -16-0482 -X-1 DC-0752 -16-0013-X-1 DATE: May 3, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Edward H. Passman , Esquire, and Erik D. Snyder , Esquire, Washington, D.C., for the appellant. Denise Gillis , Esquire , Evan Richard Gordon , Esquire, and Timothy R. Zelek , Esquire, Quantico, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 In March 23, 2018 compliance initial decisions, the administrative judge found the agency in partial noncompliance with the Board’s Septembe r 26, 2017 final decisions reversing the appellant’s removal and constructive suspension and ordering the agency to retroactively restore her with back pay and benefits and to grant her request for reasonable accommodation. Thomas v. Department of the Navy, MSPB Docket No. DC -0752 -16-0482 -C-1, Compliance File, Tab 10, Compliance Initial Decision (CID); Thomas v. Department of the Navy , MSPB Docket No. DC -0752 -16-0013 -C-1, Compliance File, Tab 16, Compliance Initial Decision (CID).3 For the reasons discuss ed below, we find the agency in compliance and DISMISS the petition s for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 In the compliance initial decisions, the administrative judge found the agency in partial noncompliance with the Boar d’s final decisions in the underlying appeals to the extent that it had failed to provide the appellant with dental benefits, the step increases that she would have received had she not been removed, and either an adequate workspace or the opportunity to t elework full-time. CID at 4. Accordingly, the administrative judge granted the appellant’s petition s for enforcement and ordered the agency to: (1) enter into a telework agreement with the appellant allowing her to telework full -time until a workspace a pproved by the appellant’s physician or medical provider at Marine Base Quantico was made available; (2) provide the appellant with a working 3 The appellant filed separate appeals of her remov al, MSPB Docket No. DC -0752 -16- 0482 -I-2, and constructive suspension, MSPB Docket No. DC -0752 -16-0013 -B-2. Although the administrative judge did not join the appeals for processing, he issued identical initial decision s under both docket numbers and, upon the appellant’s petitions for enforcement of the initial decision s, identical compliance initial decision s addressing the petitions for enforcement . As the compliance initial decisions in both appeal records are the same, citations herein to “CID” refer to both compliance initial decisions. 3 computer, printer, and scanner to be used for telework; and (3) provide the appellant with dental benefits and ini tiate any step increases that the appellant would have received had she not been removed or constructively suspended from her position. CID at 5 -6. ¶3 The administrative judge informed the agency that, if it decided to take the ordered actions, it must submi t to the Clerk of the Board a narrative statement and evidence establishing compliance. CID at 6. The compliance initial decision s also informed the parties that they could file a petition for review if they disagreed with the compliance initial decision s. CID at 7-8. Neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114 . Accordingly, pursuant to 5 C.F.R. § 1201.183 (b)-(c), the administrative judge’s findings of noncompliance have become final, and the appellant’s petitions for enforcement have been referred to the Board for a final decision on the issu es of compliance. Thomas v. Department of the Navy , MSPB Docket No. DC -0752 -16-0482 -X-1, Compliance Referral File (0482 CRF), Tab 1; Thomas v. Department of the Navy , MSPB Docket No. DC -0752 -16-0013 -X-1, Compliance Referral File (0013 CRF), Tab 1. ¶4 On Apri l 30, 2018, the Board issued acknowledgment order s in both appeals directing the agency to submit evidence showing that it had complied with all actions identified in the compliance initial decisions. 0482 CRF, Tab 1 at 3; 0013 CRF, Tab 1 at 3. On May 15 , 2018, the agency submitted three separate compliance submissions. 0482 CRF, Tabs 2 -4. In relevant part, these submissions reflected that the agency had permitted the appellant to telework since December 11, 2017, had issued her a laptop and Common Acce ss Card, and was working to provide her a printer. 0482 CRF, Tab 2 at 6-7, 33-38, 45 -49. The agency also provided evidence showing that it retroactively processed the appellant’s step increase from a GS 9, step 7 , to a GS 9, step 8 , on February 28, 2018, and stated that it had “corrected her pay to reflect this adjustment.” 0482 CRF, Tab 3 at 7 -8, 10 -15. However, the agency maintained that the 4 appellant had not cooperated with its efforts to restore her dental benefits. 0482 CRF, Tab 3 at 8 -9, 16 -30. The agency stated that, although it had directly contacted BENEFEDS4 to provide the appellant’s reemployment verification and necessary authorization for the appellant’s dental benefits, the appellant also needed to contact BENEFEDS to be enrolled and/or to inform the agency of any specific documents needed to move forward with her enrollment. Id. ¶5 On June 4, 2018, the appellant responded to the agency’s compliance submissions, asserting that the agency had not complied with all actions identified in the compliance initial decision s. 0482 CRF, Tab 5.5 Specifically, the appellant stated that, although she had been permitted to telework, the agency had not provided her with the tools she needed to perform her duties remotely, as her government -issued l aptop was unable to access the agency’s network; her assigned phone number and voicemail had not been set up; and her government -issued printer had only been recently procured and was not yet in her possession. Id. at 8-9. The appellant also stated that, although she had contacted BENEFEDS to have her dental benefits restored, BENEFEDS informed her that it was still awaiting reinstatement information from the agency before it could process her enrollment. Id. The agency did not respond to the appellant’ s submission. ¶6 By orders dated April 11 and 12, 2022 ,6 the Board ordered the agency to submit a response , via affidavit and documentary evidence, addressing its 4 BENEFEDS is the enrollment and premium processing system for the Federal Employees Dental and Vision Insurance Program. 5 The appellant submitted an identical response in MSPB Docket No. DC -0752 -16- 0013-X-1. 0013 C RF, Tab 2. 6 The Board’s April 11 and 12, 2022 orders are identical in text. The April 11, 2022 order was issued in Thomas v. Department of the Navy , MSPB Docket No. DC -0752 -16- 0013 -X-1. 0013 CRF, Tab 3. The April 12, 2022 order was issued in Thomas v . Department of the Navy , MSPB Docket No. DC -0752 -16-0482 -X-1. 0482 CRF, Tab 7. For purposes of administrative efficiency, we now JOIN these two cases. 5 compliance with the administrative judge’s orders to make final determinations as to whether it had finally : (1) provided the appellant with the necessary tools to perform her work duties in a telework environment, or alternatively, provided the appellant with a workspace approved by either her physician or a medical provider at Marine Base Quantico ; and (2) provided the appellant with dental benefits. 0013 CRF, Tab 3; 0482 CRF, Tab 7. The April 11 and 12, 2022 Orders also notified the appellant that she may respond to any submission from the agency within 21 calendar days of the date of service of the agency’s submission. 0013 CRF, Tab 3 at 5; 0482 CRF, Tab 7 at 5. The appellant was cautioned, however, that if she did not respond to the agency’s submission regarding compliance within those 21 calendar days, the Board “may assume that the appellan t is satisfied and dismiss the petition[s] for enforcement.” Id. ¶7 The agency responded to the Board’s order s on May 2 , 2022. 0482 CRF, Tab 8.7 The agency averred that it had provided the appellant “with all the necessary eq uipment to allow for 100% telework” and that “[she] was on 100% telework from 7 Dec 2017 . . . until she resigned from Federal service on 26 Nov 2019.” Id. at 5, 9. It further averred that, though it had “provided the appellant with all the necessary documentation for [her] to ti mely obtain dental benefits,” the appellant needed “to contact [BENEFEDS] directly to set up this insurance.” Id. at 7-8. Evidence reflecting the agency’s efforts to provide the appellant with the necessary telework equipment included copies of the parti es’ email communications, id. at 11 -15, an equipment custody record, id. at 16 -17, and an April 25, 2022 memorandum, signed by the Director of the Contracting Office for the Marine Corps Installations National Capital Region, id. at 9-10. Evidence reflect ing the agency’s efforts to provide the appellant with the documentation necessary for her to complete her dental insurance enrollment included copies of 7 The agency submitted an identical response in MSPB Docket No. DC -0752 -16-0013- X-1. 0013 CRF, Tab 5. 6 internal and external email communications, id. at 25 -50, and a May 15, 2018 memorandum for the record , signed by a Human Resource Labor and Employee Relations Supervisor, id. at 24. The appellant did not respond to the agency’s submission. ANALYSIS ¶8 When the Board finds a personnel action unwarranted or not sustainable, it orders that the appellant be pla ced, as nearly as possible, in the situation she would have been in had the wrongful personnel action not occurred. House v. Department of the Army , 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the burden to prove its compliance with a Board order. An agency’s assertions of compliance must include a clear explanation of its compliance actions supported by documentary evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by making “specific, nonconclusory, and supported assertions of continued noncompliance.” Brown v. Office of Personnel Management , 113 M.S.P.R. 325 , ¶ 5 (2010). ¶9 Here, the agency has demonstrated that prior to the appellant’s resignation from the Federal service, it entered into a full -time telework agreement with her, provided her with the necessary tools to perform her work duties in a telework environment, initiated her entitled step increas es, and provided her with the documentation she needed to present to BENEFEDS8 to complete her dental insurance enrollment . The appellant has not responded to the agency’s 8 According to the website of the Office of Personnel Management (OPM), “[Individuals ] must use BENEFEDS to enroll or change enrollment in a FEDVIP plan. BENEFEDS is a secure enrollment website sponsored by OPM.” See https://www.opm.gov/healthcare -insurance/dental -vision/enrollment (last visited May 3 , 2023). While the agency provided the appellant with the opportunity to receive dental benefits, it was ultimately her responsibility to use BENEFEDS to complete her enrollment for these benefits, to include presenting BENEFEDS with copies of any necessary documentation provided to her by the agency. 7 compliance submission, des pite being notified of her opportunity to do so and being cautioned that the Board may assume she is satisfied and dismiss her petitions for enforcement if she did not respond. 0013 CRF, Tab 3 at 5; 0482 CRF, Tab 7 at 5. Accordingly, we assume that the a ppellant is satisfied with the agency’s compliance. See Baumgartner v. Department of Housing and Urban Development , 111 M.S.P .R. 86 , ¶ 9 (2009). ¶10 In light of the foregoing, we find that the agency is now in compliance and dismiss the appellant’s petitions for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 o f the Code of Federal Regulations, sec tion 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE OF APPEAL RIG HTS9 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described b elow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies t o your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 9 Since the issuance of the initial decisio n in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 (1) Judicial review in general . As a general rule, an appellant seeking judic ial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any a ttorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and tha t such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 9 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 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 rev iew to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 10 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.10 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 10 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions f or judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	THOMAS_STEPHANIE_DC_0752_16_0482_X_1_FINAL_ORDER_2027670.pdf	2023-05-03	null	DC-0752	NP
3,187	https://www.mspb.gov/decisions/nonprecedential/PETERS_SHAWNIE_MARIE_DC_0752_17_0614_I_1_FINAL_ORDER_2027698.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SHAWNIE MARIE PETERS , Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DC-0752 -17-0614 -I-1 DATE: May 3, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shaun Southworth , Esquire, Atlanta, Georgia, for the appellant. Pietro Mistretta , Esquire, APO, AE, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has petitioned for review of the initial decision in this appeal. Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the appeal as settled. ¶2 After the filing of the petition for review, the parties submitted a document entitled “SETTLEMENT AGREEMENT ,” with an effective date of March 16, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 2023 . PFR File, Tab 7 at 4 -8. The document provides, among other things, for the withdrawal of the above -captioned appeal . Id. at 4. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreemen t, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146, 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it. See Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 1 0-11 (2017). ¶4 Here, we find that the pa rties have entered into a settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforcement by the Board. PFR File, Tab 7 at 6. Accordingly, we find that dismissing the appeal with prejudice to refilin g (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 enforceme nt purposes. ¶5 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOT ICE TO THE PARTIES O F 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 of fice 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 a ny communications between the parties. 5 C.F.R. § 1201.182 (a). 3 NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicia l review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for 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 w hich option is most appropriate in any matter. 4 U.S. Court of Appeals for the Federal Ci rcuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Pet itioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any atto rney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that s uch action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 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 5 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 6 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. C ourt of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circui t 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitio ners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our web site at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	PETERS_SHAWNIE_MARIE_DC_0752_17_0614_I_1_FINAL_ORDER_2027698.pdf	2023-05-03	null	DC-0752	NP
3,188	https://www.mspb.gov/decisions/nonprecedential/MESHAL_AZZA_SF_0831_21_0514_I_1_FINAL_ORDER_2027803.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD AZZA MESHAL, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER SF-0831 -21-0514 -I-1 DATE: May 3, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Azza Meshal , San Jose, California, pro se. Alison Pastor , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the final decision of the Office of Personnel Management (OPM) 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 denying her request for a waiver of the interest on a required deposit to receive credit for a period of noncontributory s ervice under the Civil Service Retirement System (CSRS) . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the la w to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of t he case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The releva nt facts are largely undisputed. The appel lant was employed by the Department of the Army (Arm y) from May 24 to September 29, 1982 , and October 4, 1982 , to January 15, 1983 , in a temporary appointment as an Engineering Technician . Initial Appeal File (IAF), Tab 9 at 50 -51. On January 16, 1983 , the Army converted her position to a career -conditional appointment covered under CSRS, and her pay was subject to CSRS retirement deductions until her retirement on August 31, 2020 . Id. at 37 , 41, 54 . As relevant here, from October 4, 1982, to January 15, 1983, her position was subject only to the payment of Social Security taxes under the Federal Insurance Compensation Act , and no retirement deductions were withheld from her salary . Id. at 50. In a retirement estimate dated August 30, 2020, the Army provided the 3 appellant with the required deposit amount plus interest for the relevant period of noncontributory service . Id. at 58. ¶3 Subsequently, by letter dated November 3, 2020, OPM notified her that she could make one of the following elections affe cting the computation of her retirement annuity: pay a deposit with interest for her service from October 4, 1982, to January 15, 1983, or do not pay a deposit. Id. at 22-24. The appellant requested OPM to waive the interest amount for such deposit, claiming that the failure or delay to make deductions or pa y the deposit was not her fault . Id. at 21. OPM issued an initial decision denying her request to waive the interest , and she requested reconsideration. Id. at 17, 19. On August 16, 2021, OPM issued a final decision sustaining its initial decision based on its determination that it had no authority to waive the statutory requirement of paying interest on deposits. Id. at 8-10. ¶4 The appellant filed an appeal with the Board challenging OPM’s final decision and requesting a hearing. IAF, Tab 1 at 2. Following a telephonic hearing, the administrative judge issued an initial decision affirm ing OPM’s reconsideration decisio n and finding that the appellant failed to prove her entitlement to retirement annuity benefits based on her noncontributory service when she has not paid any deposit with interest for such service . IAF, Tab 11, Hearing Audio (HA), Tab 13, Initial Decision (ID) at 1, 8. ¶5 The appellant has filed a timely petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a nonsubstantive response. PFR File, Tab 4. DISCUSSION OF ARGUME NTS ON REVIEW ¶6 An employee’ s creditable civ ilian service after July 31, 1920, for which retirement deductions have not been made will not be included in computing the amount of h er CSRS annuity unless she makes a deposit, with interest, for such service. Buie v. Office of Personnel Management , 386 F.3d 1127 , 1131 ( Fed. Cir. 4 2004); see 5 U.S.C. § 8334 (c), (e); 5 C.F.R. § 831.303 (b). The administrative judge found, and the parties do not dispute on review , that the appellant never made a deposit for her period of noncontributory service from Octo ber 4, 1982 , to January 15, 1983 , and the required deposit amount plus interest totaled $1,637.00 .3 PFR File, Tab 1 at 3; ID at 6; IAF, Tab 1 at 4, Tab 9 at 8 -9; HA (statement of the appellant) . We discern no basis for disturbing these findings. ¶7 Rather, the appellant reasserts on review that the interest accrued on her deposit should be waived based on equity. PFR File, Tab 1 at 3 ; IAF, Tab 9 at 17, 21. The administrative judge found that the payment of interest on a deposit was a statutory requirement that the Board lacks authority to waive based on equitable considerations . ID at 5-7. We agree. ¶8 OPM and the Board have no discretion to waive statutorily imposed requirements, and the government cannot be estopped from denying benefits precluded by law e ven if the claimant was denied benefits because of her reliance on the mistaken advice of a government official. Hayden v. Office of Personnel Management , 58 M.S.P.R. 286 , 293 (1993) (citing Office of Personnel Management v. Richmond , 496 U.S. 414 (1990)). As relevant here, t he st atutory and regulatory provisions set forth at 5 U.S.C. § 8334 (c), (e) and 5 C.F.R. § 831.303 (b) require the payment of interest on a deposit and delineate the accrual of that interest. The appellant argues that the interest “should be waived because [she] was not given accurate or timely information about the deposit requirement” due to OPM’s admin istrative error. PFR File, Tab 1 at 3. The administrative judge properly found that there is no basis under statute, regulation, or equity for waiving the appellant’s interest obligation due to lack of notice, even if OPM gave her “false, improper, or misleading information concerning eligibility criteria for a retirement benefit, and [she] relied on that 3 OPM calculated the required deposit as $236.98 and the accrued interest as $1,400.02 . IAF, Tab 9 at 62 -67. 5 information to her detriment. ” ID at 7. We also discern no error in his finding that her requested waiver did not fall into any recognized exception “that allow [s] OPM the discretion to waive or forgive certain debts .”4 ID at 6. Thus, we find the appellant has failed to prove her entitlement to retirement annuity benefits based on her noncontributory service from October 4, 1982 , to January 15, 1983 , when she has not paid any deposit with interest for such service. ¶9 Accordingly, we deny the appellant’s petition for review and affirm the initial decision . NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below d o not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing ti me limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your p articular case. If you have questions 4 The administrative judge found that the exceptions codified at 5 U.S.C. § 8346 (b) and 5 C.F.R. §§ 831.1401 , 831.2104(a) were inapplicable to the appellant’s request for a waiver. We agree. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notic e 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 revi ew of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain 7 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 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 decis ion. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 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 prohi bited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circu it or any court of appeals of competent jurisdiction.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: 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 whistl eblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov /probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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/Co urt_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MESHAL_AZZA_SF_0831_21_0514_I_1_FINAL_ORDER_2027803.pdf	2023-05-03	null	SF-0831	NP
3,189	https://www.mspb.gov/decisions/nonprecedential/EVANS_CARLISLE_B_SF_0752_15_0566_I_1_FINAL_ORDER_2027815.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CARLISLE B. EVANS, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER SF-0752 -15-0566 -I-1 DATE: May 3, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jerry Girley , Esquire, Orlando, Florida, for the appellant. Maureen Ney , Esquire, Los Angeles, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has f iled a petition for review of the initial decision, which affirmed the appellant’s removal for inappropriate conduct. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, wa s not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we concl ude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant was em ployed as a Materials Handler, WG -05, at the agency’s Long Beach Health Care System in Long Beach, California . Initial Appeal F ile (IAF), Tab 6 at 38. On March 20, 2015, the agency proposed to remove the appellant based upon four specifications of inappropriate conduct . Id. at 49-51. The first specification alleged that the appellant yelled at his coworker, called him derogator y names, and told him that he would die and th at he would kill him. Id. at 49. Specifications 2 and 4 alleged that the appellant left his Personal Identity Verification (PIV) card2 in a computer unattended , and specification 3 alleged that the appellant sent an email that falsely claimed a coworker threatened to cut his head off with a machete . Id. In an April 22, 2015 decision, the deciding official sustained all four specifications and remove d the appellant from Federal service, effective May 8, 2015. Id. at 40 . 2 A PIV card is used by the Federal Government to access Federally controlled facilities and information systems. 3 ¶3 The appellant filed an appea l with the Board, disputing the underlying facts of specifications 1 and 3 , and alleging that his removal was the result of whistleblower retaliation. IA F, Tab 1 at 2, 11 -12. After holding the appellant’s requested hearing, the administrative judge issued an initial decision affirming the appellant’s removal , sustaining specifications 1, 2, and 4 . IAF, Tab 17, Initial Decision (ID). In sustaining the fi rst specification , the administrative judge reviewed the statements and testimony of three corroborating witnesses, who confirmed that the appellant yelled at his coworker, called him derogatory names, and threatened to kill him. ID at 5-7. The administr ative judge also reviewed and analyzed the surveillance video of the altercation and found that it was inconsistent with the appellant’s claims that it was his coworker, and not he, who was the aggressor in the altercation . ID at 8 -9. As for specifications 2 and 4, she found that the agency established, by preponderant evidence, that the appellant had left his PIV card unatte nded in his computer. ID at 11. She did not sustain specification 3, however, finding that it was plausible that the a ppellant intended to communicate in his email that the coworker had, in the past, threatened to cut his head off with a machete, but had not threatened him on that very day . ID at 13. ¶4 Turning to the appellant’s claims of whistleblower retaliation, t he administrative judge found that, while the appellant established that he had made a protected disclosure that was a contributing factor in his removal, the agency had established by clear and convincing evidence that it would have removed the appellant abse nt his whis tleblowing activities. ID at 15, 17 -18. She then explained that the agency established nexus . ID at 18. Finally, the administrative judge concluded that the deciding official considered the relevant factors, and that the removal did not exce ed the tolerable limits of r easonableness. ID at 19. Accordingly, she affirmed the appellant’s removal. ID at 21. ¶5 The appellant filed a petition for review, arguing that the administrative judge erred first in her handling of the surveillance video , then in finding that the 4 proposing official had little motive to retaliate, and finally, in concluding that the agency considered all relevant factors and t hat t he penalty of removal was reasonable.3 Petition for Review (PFR) File, Tab 1 at 3-5. The agen cy responded to the appellant’s petition. PFR File, Tab 3. DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge did not err in her handling of the surveillance video . ¶6 On review, the appellant argues that the administrative judge erred because she f ailed to mention the “significant fact” that the deciding official only view ed the surveillance video for the first time at the hearing, and also claims that she should not have allowed the deciding official to view the video at the hearing. PFR File, Tab 1 at 3 -4. We view the appellant’ s claims as alleging that the agency committed harmful error, i.e., that it erred in the application of its procedures in the removal action. To prove harmful error, the appellant must prove that the agency committed an error in application of its procedures and that it is likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure o f the error. Forte v. Department of the Navy , 123 M.S.P.R. 124 , ¶ 9 (2016); Stephen v. Department of the Air Force , 47 M.S.P.R. 672, 681, 685 (1991) . The burden is on the appellant to show that the error was harmful, i.e., that it caused substantial harm or pre judice t o his or her rights. 5 C.F.R. § 1201.4 (r). ¶7 First, there is no evidence in the record that th e agency committed an error. There is nothing in the record to suggest that the video wa s in t he materials relied 3 On review, the appellant does not dispute the administrative judge’s findings sustaining the second or fourth specification or establishing nexus. PFR File, Tab 1. As the record supports the administrative judge’s findings, we discern no reason to chall enge these findings. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997) (declining to disturb the administrative judge’s fi ndings where 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 on in proposing the appellant’s removal , nor is there any evidence that the deciding official was under an y obligation by agency policy to review the video before making his decision. Further, any alleged error was not harmful, as the deciding official testified at the hearing that he would still have removed the appellant from Federal service even after viewing the video . Hearing Recording (HR) (testimony of deciding official). ¶8 As for the appellant’s argument that the administrative judge should not have allowed the deciding official to view the video at the hearing, we note that not only did the appellant fail to object at the hearing , but his attorney told the administrative judge that he would like the decid ing official to view the video during testimony . HR ( statement of the appellant’s representative during the testimony of the deciding official). Therefore, the appellant’s argument is not only disingenuous, but because he failed to object to the decision at the hearing, he cannot raise such an objection on review.4 See Rittgers v. Department of the Army , 123 M.S.P.R. 31 , ¶ 5 (2015) (rejecting the appellant’s argument on review 4 The appellant also claims that the administrative judge’s decision to allow the deciding official to view the video constituted “clear evidence of [a] lack of impartiality.” PFR File, Tab 1 at 4. As the appellant’s attorney confirmed that he wished the deciding official to view the video at the hearing, we fail to see how this ruling could possibly constitute evidence of bias against the appellant. HR ( statement of the appellant’s representative during the testimony of the deciding official ). Nonethele ss, 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. 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) ; Oliver v. Department of Transportation , 1 M.S.P.R. 382 , 386 (1980). An administrative judge ’s conduct during the course of a Board proceeding warrants a new adjudication only if her comments or actions evidence “a deep -seated favoritis m or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d 1358 , 1362 (Fed. Cir. 2002 ) (quoting Liteky v. United States , 510 U.S. 540 (1994 )); Smets , 117 M.S.P.R. 164, ¶ 15 . Under these circumstances, the appellant’s allegations on review, which do not relate to any extrajudicial conduct by the administrative judge, do not overcome the presumption of honesty and integri ty that accompanies an administrative judge nor establish that she shows a deep -seated favoritism or antagonism that would make fair judgment impossible. Bieber , 287 F.3d at 1362 -63. 6 that he did not have sufficient time to review new evidence when the appellant did not object to the administrative judge’s order establishing the timelines ); Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579 , 581 (1988) (finding that an appellant’s failure to object to the administrative judge’s ruling during the proceedings belo w precluded him from doing so on petition for review) . ¶9 The appellant also asserts on review that the administrative judge mischaracterized the contents of the video, which he claims supports his innocence in the altercation. PFR File, Tab 1 at 3 -4. We di sagree. T he record supports the administrative judge’s decision to sustain the first specification. ID at 9. The agency alleged in specification 1 that the appellant told his coworker that he would die, and that he would kill him, and t hat he yelled and called his coworker derogatory names. IAF, Tab 6 at 49. Four witnesses provided testimony and statements confirming that the appellant engaged in this very behavior . Id. at 49, 63 -66, 70; HR (testimony of material handler , testimony of motor vehicle wo rker, testimony of warehouse worker, t estimony of supply technician). Further, although the appellant claims that the surveillance video is critical , the video has no audio . HR (testimony of the deciding official). The surveillance video, without audio, has little probative value and does not outweigh the other evidence in the record which establishes, by preponderant evidence, that the appellant engaged in the behavior described in specification 1 . Accordin gly, the administrative judge properly sustain ed that specification . ID at 9. The administrative judge was correct in finding that the agency established by clear and convincing evidence that it would have removed the appellant absent his whistleblower activity .5 ¶10 In a removal appeal, an appellant ’s whistleblowing reprisal claim is treated as an affirmative defense. Ayers v. Department of the Army , 123 M.S.P.R. 11 , 5 We have reviewed the relevant legislation enacted during the pendenc y of this appeal and have concluded that it does not affect the outcome of the appeal. 7 ¶ 12 (2015 ). In such an appeal, once the agency proves the charges by a preponderance of the evidence, the appellant must show by prep onderant evidence that he made a protected disclosure under 5 U.S.C. § 2302 (b)(8) and that the disclosure was a contributing factor in the agency ’s personnel action. Id. An employee may demonstrate that a protected disclosure was a contributing factor in a personnel action through the knowledge/timing test, i.e., circumstanti al evidence, such as evidence that the official taking the personnel action knew of the disclosure, and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action . Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 18 (2015) . If the appellant establishes a prima facie case of whistleblowing reprisal, then the burden of persuasion shifts to the agency to show by clear and convincing evidence that it would have taken the same personnel action absent any protected activity. Ayers , 123 M.S.P.R. 11, ¶ 5. ¶11 Here, the administrative judge found the following facts, which are undisputed: the appellant, 4 or 5 years prior to his removal, made disclosures to the proposing official that other employees in the warehouse engaged in improper use of Government vehicle s, removed palle ts from the warehouse to be sold for profit, made threats against him, and slept on d uty. ID at 14 . Subsequently, 7 or 8 months before the agency removed the appellant, he raised some of these concerns to the deciding official, and specifically mentioned the proposing official by name. ID at 14 -16. Accordingly, the administrative judge found that both the proposing and deciding officials had knowledge of the appellant’s disclosure s, and that, through the knowledge/timing test, his disclosures were a contributing factor to his removal. ID at 15 . ¶12 She therefore proceeded to the question of whether the agency proved by clear and convincing evidence that it would have removed the appellant absent his protected disclosures. Id. In determining whether an agency met its clear and convincing burden, the Board will consider the following fact ors: the strength of 8 the agency’s evidence in support of its action; the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and any evidence that the agency takes similar actions agains t employees who are not whistleblowers but who are otherwise similarly situated. Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999). Looking at the first Carr factor, the administrative judge found that the agency established that the appellant had engaged in serious misconduct and that it had strong evidence to support the removal action. ID at 17. Regarding the se cond Carr factor, the administrative judge found that deciding official had a very weak motive to retaliate, and the proposing official had little motive to retaliate because more recent inquiries were made into the appellant’s disclosures, and the removal action was reviewed and sustained by the deciding official, who had no motive to retaliate ; thus, any motive from the proposing official would have been greatly diminished . ID at 16 . Finally, as for the third Carr factor, the administrative judge found that the agency did not present any comparator evidence, and thus this factor did not weigh in either party’s favor. ID at 17. ¶13 On review, the appellant challenges the administrative judge’s finding that the proposing official had little motive to retaliat e. PFR File, Tab 1 at 3 . Specifically, the appellant asserts that the proposing official had motive to retaliate because the appellant had reported to the deciding official several months prior to his removal that the proposing official was “involved in graft and corruption with respect to the unauthorized selling of VA property.” Id. As an initial matter, at no point while the matter was pending in front of the administrative judg e did the appellant assert that he disclosed to the deciding official tha t the proposing official was involved in the “graft and corruption” regarding the theft of agency property. Nevertheless , our reviewing court has found that those responsible for the agency’s performance overall may be motivated to retaliate against an in dividual who made protected disclosures, even if they are not directly implicated by the disclosures , and even if they do not 9 know the whistleblower personally, as the criticism reflects on them in their capacities as managers and employees. Whitmore v. Department of Labor , 680 F.3d 1353 , 1370 (Fed. Cir. 2012). In other words, even if the responsible agency official is outside the whistleblower ’s chain of command, or is not directly involved or named in the disclosure, it does not automatically prove that the official had no motive to retaliate, especially if the whistleblower has made a highly critical accusation of the agency’s conduct that ma y reflect on that official’s c apacity as manager or employee. Id. at 1371. Further , “[w]hen applying the second Carr factor, the Board will consider any motivate to retaliate on the part of the agency official who ordered the action, as well as any motiv ate to retaliate on the part of other agency officials who influenced the decision.” Id. (quoting McCarthy v. International Boundary and Water Commission , 116 M.S.P.R. 594, ¶ 62 (2011) , aff’d , 497 F. App’x 4 (Fed. Cir. 2012) ). Since direct evidence of the proposing or deciding official’s retaliatory motive is typically unavailable, Federal employees are entitled to rely on circumstantial evidence to prove a motive to retaliate. Whitmore , 680 F.3d at 1371. ¶14 Here, we find that the evidence supports the administrative judge’s determination that the proposing official had little motivat ion to retaliate against the appellant. ID at 16. There is nothing in the record to suggest that any inquiries into the appellant’s disclosures revealed misconduct by the proposing official, and the proposing official appears to have suffered no conseque nces as a result of those disclosures . Thus, it is unlikely that the proposing official would have a motive to retaliate against the appellant 4 or 5 years later after disclosures that resulted in no adverse consequences for him. Further, although the appellant asserts on review that he mentioned the proposing official by name when reiterating his disclosures to the deciding official, there is no evidence in the record that establishes that the proposing official had any awareness of the 10 appellant’s most recent disclosure.6 Accordingly, we agree with the administrative judge that the proposing official had little moti ve to retaliate against the appellant for his disclosures made years prior to the removal . ID at 16. ¶15 As for the deciding official , we al so agree with the administrative judge’s conclusion that he had a very weak motive to retaliate. Id. In response to the disclosures, the deciding official testified that he reviewed copies of complaints from the appellant and other employees filed with t he VA police dating back to 2000 , discussed the disclosures with an Associate Director , and established that the claims were unsubstantiated . HR (testimony of the deciding official). There is nothing in the record to suggest that the appellant’s disclosu res directly implicated the deciding official. However, consistent with the guidance issued by our reviewing court discussed previously , an official may have a motive to retaliate even though he was no t directly implicated , because such criticism reflects on him as a manager. See Whitmore , 680 F.3d at 1370 . Nonetheless, we still find little support for the proposition that the deciding official had a motive to retaliate against the appellant. The deciding official was not implicated in the appellant’s disclosures, and even more not ably, the decidi ng official had only been Director of the Medical Center for several months at the time of the appellant’s protected disclosures . HR (testi mony of the deciding official). Furthermore , prior to his role as Dir ector of the Long Beach Medical Center , the deciding official was a Deputy Network Director in Vancouver, Washington, and thus, was not even at the Long Beach Medical Center at the time the majority of the appellant’ s complaints occurred . HR (testimony of the deciding official). 6 Neither the deciding official nor the appellant testified that the proposing official knew of the appellant’s disclosures to the deciding official. HR (testimony of t he appellant, testimony of the deciding official). In their prehearing submissions, neither party requested the proposing official as a witness at the hearing, and thus we do not have any testimony from the proposing official as to his knowledge of the mo re recent disclosures. IAF, Tab 11 at 5 -6, Tab 12 at 3. 11 Therefore, because the majority of the appellant’s complaints encompassed the time prior to his tenure as Director and his tenure at the Long Beach Medical Center , these complaints would not have reflected poorly on him as a manage r. Thus , we agree wi th the administrative judge that the deciding official had little motive to retaliate against the appellant. ID at 16. ¶16 Finally, as for the third Carr factor, the Government bears the risk associated with having no evidence on the reco rd for this factor. Miller v. Department of Justice , 842 F.3d 1252 , 1262 (Fed. Cir. 2016). Our reviewing court has acknowledged that while the absence of any evidence relating to this factor can effectively remove that factor from the analysis, the agency’s failure to produce evidence on the third fact “may be at the agency’s peril.” Id. (quoting Whitmore , 680 F.3d at 1374 (internal citations omitted) ). Thus, lack of evidence for the third factor may add little to the overall analysis, but , if anything, tends to cut slightly against the agency. Miller , 842 F.3d at 1262. Here, the agency produced no evidence as it relates to comparator eviden ce; accordingly, the third factor adds nothing to the analysis, but, if anything , cuts slightly against the agency. Nonetheless, given the strength of the agency’s evidence justifying the removal of the appellant, along with the minimal motive to retaliat e by those involved with the removal, we agree with the administrative judge that the agency established by clear and convincing evidence that it would have removed the appellant absent his whistleblower activities. ID at 17 -18. The removal penalty is wit hin the bounds of reasonableness. ¶17 The Board will review an agency -imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion within tolerable limits of reasonableness. Little v. Department of Tr ansportation , 112 M.S.P.R. 224, ¶ 29 (2009). When all of the agency’s charges are sustained, but some of the underlying spec ifications are not sustained, the agency’s penalty determination is entitled to deference and only should be reviewed to determine whether it is within the parameters of reasonableness. Id. The Board’s function 12 is not to displace management’s responsibil ity or to decide what penalty would impose, but to assure that management’s judgement has been properly exercised and that the penalty selected by the agency does not exceed the maximum limits of reasonableness. Id. ¶18 The appellant asserts that the deciding official failed to consider two Douglas factors, the consistency of the penalty with that imposed on the coworker involved in the altercation , and the mitigating circumstances surrounding the offens e such as unusual job tension caused by the ongoing issue s he had with several supervisor s. PFR File, Tab 1 at 4. The consistency of an agency -imposed penalty with those imposed on other employees for the same or similar offenses is one factor that Board will considered in determining whether the penalty is reasonable. Voss v. U.S. Postal Service , 119 M.S.P.R. 324, ¶ 6 (2013). When analyzing a disparate penalty claim, broad similarity between employees is insufficient to establish that they are appropriate comparators, and the relevant inquiry is whether the agency knowingly and unjustifiably treated employees who engaged in the same or similar offenses differently. Singh v. U.S. Postal Service , 2022 MSPB 15 , ¶¶ 11 -14. We do not believe the appellant has established that his conduct and his coworker’s conduct were substantially similar. The record demonstrates that the appellant was the aggressor of the altercation, including threatening bodily harm to his coworker, which is consistent with the appellant’s two previous disciplinary actions for disrespectful conduct . HR (testimony of the deciding official, testimony of motor vehicle worker, testimony of warehouse worker, testimony of supply technician); IAF, Tab 6 at 45, 49, 64-66, 70. The appellant has not presented any corroborating evidence that his coworker had a similar discipli nary history, or engaged in such egregious conduct during the altercation as the appellant. Thus, we do not find that a r easonable person could conclude the agency treated similarly situated employees differently . ¶19 As for the appellant’s claim of unusual job tension, the appellant asserts that he had issues with several supervisors prior to this incident. PFR File, Tab 1 13 at 4. However, he has not explained how these tensions, with supervisors not involved in the altercation, somehow caused him to engage in the misconduct or influenced his conduct in any way. See Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 (1981) (explaini ng that a relevant factor in determining the appropriate penalty may be the mitigating circumstances that surround the particular charged offense ). Thus, we are unpersuaded by the appellant’s claim of unusual job tensions as it does not explain his actions . ¶20 Instead, the deciding official considered the seriousness of the misconduct and the ramifications on its personnel, which is consistent with the Board’s view of placing primary importance upon the nature and seriousness of the offense and its relation to the appellant’s positon, duties, and responsibilities. HR (testimony of the deciding official); Edwards v. U.S. Postal Service , 116 M.S.P.R. 173 , ¶ 14 (2010). He also considered the appellant ’s prior discipline, concern for the safety of other employees, and the agency ’s table of penalties. HR (testimony of the deciding official) . Therefore , we agree with the administrative judge that the deciding official considered all relevant factors, and that the penalty of removal is well within the bounds of reasonableness for the appellant ’s misconduct. ID at 20-21. NOTICE OF APPEAL RIG HTS7 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriat e for your situation and the rights described below do not represent a 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 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applica ble to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choice s of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 15 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, t hen you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at th eir respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal O perations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 16 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Emplo yment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Op portunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your 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 co urt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 17 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Fede ral Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are intere sted in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appel lants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	EVANS_CARLISLE_B_SF_0752_15_0566_I_1_FINAL_ORDER_2027815.pdf	2023-05-03	null	SF-0752	NP
3,190	https://www.mspb.gov/decisions/nonprecedential/EVANS_CYNTHIA_CH_0752_15_0179_I_1_FINAL_ORDER_2027831.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CYNTHIA EVANS, Appellant, v. DEPARTMENT OF LABOR, Agency. DOCKET NUMBER CH-0752 -15-0179 -I-1 DATE: May 3, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Daniel D. Domozick , Esquire, Beachwood, Ohio, for the appellant. Michelle Marie DeBaltzo , Esquire, Cleveland, Ohio, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has file d a petition for review of the initial decision, which sustained her removal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is b ased on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with requir ed procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not establis hed 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 As further detailed in the initial decision, the appellant held a Safety and Occupational Health Specialist position (“compliance officer”). Initial Appeal File (IAF), Tab 45, Initial Decision (ID) at 1. The position required responding to public complaints and conducting inspections in various workplaces. ID at 2. Beginning in August 2012, the appellant was absent from her position, citing health reasons. IAF, Tab 10, Subtab 4d at 1 , 15. Over the following months, she exhausted all available leave and a period of leave without pay (LWOP ), but failed to return to duty . Id. at 1-5, 15-16. The agency placed the appellant in an absence without leave (AWOL) status as of February 19, 2013. Id. at 5, 16. The agency th en denied a request for reasonable accommodation on May 30, 2013. Id. For her subsequent and continuous AWOL, the agency proposed the appellant’s removal. Id. at 1-7. The agency removed the appellant, effective December 1, 2013. IAF, Tab 10, Subtabs 4 a, 4b. ¶3 The appellant filed the instant Board appeal, challenging her removal. IAF, Tab 1. After holding the requested hearing, the administrative judge sustained the action. ID at 27. She found that the agency met its burden of proof concerning the ch arge, nexus, and penalty, ID at 5 -15, and the appellant failed to meet her burden concerning her numerous affirmative defenses, ID at 15 -27. The 3 appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a res ponse. PFR File, Tab 6. The agency’s denial of additional LWOP was reasonable. ¶4 On review, the appellant does not dispute that she was absent for the period at issue an d exhausted all of her available leave. Her petition contains no arguments concerning p roof of the charge, nexus, or reasonableness of the penalty, except to reassert that the agency should have granted her additional LWOP , rather than place her on AWOL. PFR File, Tab 1 at 2 -3, 8-11. In part, she relies on new evidence in the form of a Mar ch 2016 decision from the Social Security Administration, which found her eligible for disability benefits, retroactive to August 2012. Id. at 15 -23. We find no merit to this argument.2 ¶5 It is well -settled that authorization of LWOP is within the agency’s discretion. Sambrano v. Department of Defense , 116 M.S.P.R. 449 , ¶ 4 (2011) . However, the Board has held that, in cases involving medical excuses, it will examine the record as a whole to determine whether the agency’s denial of LWOP was reasonable under the circumstances. Id. When an employee who is incapacitated for duty has ex hausted all of her leave, an agency may deny LWOP when there is no foreseeable end to the employee’s absence and the employee’s absence is a burden to the agency. Id. ¶6 While affirming the agency’s AWOL charge, t he administrative judge utilized the aforemen tioned standards and concluded that the agency’s denial of LWOP was, in fact, reasonable. ID at 7 -10. 2 Though not raised by the appellant, we note that the administrative judge mistakenly characterized the AWOL charge as encompassing all 832 hours of AWOL accrued between February 19 and August 5, 2013, the date the a gency proposed her removal. ID at 5. In fact, the proposal recognized all those hours, but specified that the agency was only charging the appellant for the 368 AWOL hours accrued between May 31 and August 5, 2013. IAF, Tab 10, Subtab 4d at 6. Neverthe less, we find the administrative judge’s error harmless. Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (recognizing that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). 4 ¶7 The administrative judge specifically considered the appellant’s assertion that the agency should have granted additional LWOP while her disability retirement application was pending. ID at 10. However, she found no evidence that the appellant ever made such a request. Id. She further noted that the appellant did not submit her disability retirement application until well after the agency had denied h er LWOP and placed her on AWOL. Id. ¶8 On review , the appellant asserts that she began exploring disabili ty retirement and had her first -level supervisor complete an associated questionnaire prior to her placement on AWOL. PFR File, Tab 1 at 4 -5; see IAF, Tab 10, Subtab 4d at 16, 56. However, she acknowledges that she did not submit the application until months later, in August 2013, around the same date as her proposed removal. PFR File, Tab 1 at 5; see IAF, Tab 10, Subtab 4d at 130. The appellant has failed to identify and we are aware of no requirement that the agency grant additional LWOP to an employee during months of deliberation over whether to file a disability application. ¶9 Although the appellant also has referenced the agency’s LWOP policy, suggesting that it conflicts with the agency placing her on AWOL, we disagree. PFR File, Tab 1 at 8 -9. The agency’s policy specifically indicates that the granting of LWOP is discretionary. IAF, Tab 10, Subtab 4l at 22. While it does allow officials to grant LWOP pending final action by the Office of Personnel Management on a disability retirement claim, at their discretion, the policy does not specifically cover the appellant’s situation, when she was AWOL but apparently still deciding whether to apply for disability retirement. Id. ¶10 Under these circumstances, we agree with the administrative judge’s conclusion that the agency’s denial of LWOP was reasonabl e—there was no foreseeable end to her absence and that absence was a burden to the agency . See, e.g., Sambrano , 116 M.S.P.R. 449 , ¶ 5 -7 (finding that it was re asonable for an agency to deny LWOP when , inter alia, she was abs ent for more than a year and had not communicated to the agency when she planned to return to work); 5 Bologna v. Department of Defense , 73 M.S.P.R. 110 , 114 -16 (finding that den ial of LWOP was reasonable when , inter alia, the appellant’s medical documentation gave no indication that she would be able to return to work at some future date), aff’d , 135 F.3d 774 (Fed. Cir . 1997) (Table). The appellant’s new evidence, a Social Security Administration decision granting her disability benefits, does not warrant a different result. PFR File, Tab 1 at 15 -23. The appellant failed to prove her affirmative defenses. ¶11 Although the appellant presented additional affirmative defenses below, including age discrimination and reprisal for filing an Equal Employment Opportunity complaint , her arguments on review are limited to her race and disability discrimination claims. ID at 19 -21; PFR File, Tab 1 at 11 -13. Accordingly, this decisio n will be similarly limited. We find no basis upon which to reverse the administrative judge’s findings on either the race or disability discrimination claims.3 ¶12 Accordingly, we affirm the initial decision. NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a 3 Because the administrative judge found that the appellant failed to show that either race or disabi lity discrimination was a motivating factor in the removal action, we need not reach the question as to whether such discrimination was a but -for cause of the action. See Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 20 -24. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failu re to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have que stions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must f ile a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washin gton, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probo no for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 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 repr esentative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requ irement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims onl y, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 8 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 2 0507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction exp ired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of A ppeals for the Federal Circuit or any other circuit court 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 Petitione rs and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prote ction Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	EVANS_CYNTHIA_CH_0752_15_0179_I_1_FINAL_ORDER_2027831.pdf	2023-05-03	null	CH-0752	NP
3,191	https://www.mspb.gov/decisions/nonprecedential/PHILIP_JUANITA_NY_0752_18_0166_I_1_FINAL_ORDER_2027857.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JUANITA PHILIP, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER NY-0752 -18-0166 -I-1 DATE: May 3, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Neil C. Bonney , Esquire , Virginia Beach, Virginia, for the appellant. John Gupton and Nina A. Clarke -Brewley , Kingshill, Virgin Islands, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon , Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which found that the agency violated the appellant’s due process rights and reversed the removal action taken pursuant to 32 U.S.C. § 709. For the reasons discussed below, we GRANT the agency’s petition for review , VACATE the initial 1 A nonprecedential order is one tha t the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contra st, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 decision, and DISMISS the appeal for lack of jurisdiction . We also DENY the appellant’s motion to dismiss the agency’s petition for review for failur e to comply with interim relief. BACKGROUND ¶2 The Adjutant General of the Virgin Islands National Guard (VING) employed the appellant pursuant to 32 U.S.C. § 709(a) in a Public Affairs Specialist pos ition at VING’s Joint Force Headquarters in St. Croix, Virgin Islands. Initial Appeal File (IAF), Tab 9 at 7 -8. In the position, the appellant was required to meet the follo wing conditions of employment: (1) be a dual status military technician as defin ed in 10 U.S.C. § 10216 (a);2 (2) be a member of the National Guard; (3) hold the military grade specified by the Secretary concerned for that position; and (4) wear the appropriate military unifo rm while performing duties as a dual status military technician. 32 U.S.C. § 709(b). ¶3 In an order dated July 9, 2018, the Adjutant General honorably discharged the appellant, effective June 14, 2 018, from the Army National Guard and as a reserve of the Army. IAF, Tab 9 at 9. Also, on July 9, 2018 , the VING’s Human Resources Officer issued a memorandum informing the appellant that she would be separated from her dual status military technician po sition, effective July 13, 2018, due to her loss of military membership. Id. at 8. ¶4 The appellant filed an appeal of her removal with the Board and requested a hearing. IAF, Tab 1 at 2, 4. The agency subsequently filed a motion to dismiss, arguing that the Board is without jurisdiction to hear her appeal because her removal from her dua l status military technician position was based entirely upon her fitness for duty in the VING and the resulting failure to maintain her military 2 As relev ant here, a dual status military technician includes a Federal civilian employee who is employed under 32 U.S.C. § 709(b), is required as a condition of employment to maintain membership in the Selected Reserve, and “is assigned to a civilian position as a technician in the organizing, administering, instructing, or training of the Selected Reserve or in the maintenance and repair of supplies or equipment issued to the Selected Reserve or the armed forces. ” 10 U.S.C. § 10216 (a). 3 membership . IAF, Tab 8 at 5, 8 -9. In such a case, the agency argued, the appellant’s removal is appealable o nly to the VING’s Adjutant General. Id. at 9. The appellant responded, arguing that she was entitled to the procedural protections of 5 U.S.C. § 7513 , which include advance written notice of a removal action and an opportunity to provide a response. IAF, Tab 13 at 6 -8. Because the agency did not provide her with an opportunity to respond prior to her removal , she argued that the agency violated her constitutional right to due process. Id. ¶5 The appellant withdrew her request for a hearing , and the administrative judge issued an initial decision based on the written record. IAF, Tab 17 at 2, Tab 20, Initial Decision (ID). The administrative judge found that, pursuant to the National Defense Aut horization Act for Fiscal Year 2017 ( 2017 NDAA), the appellant was a covered employee entitled to the procedural protections of Title 5 of the U .S. Code. ID at 3. She rejected the agency’s argument that the Board lacks jurisdiction over the appeal becaus e it was based on her loss of military membership ; instead, she found that the appellant’s removal was based on a charge of failure to meet a condition of employment —in this case, the maintenance of her military status. ID at 3 -4. The administrative judg e found that the statute precluded her from reviewing the merits of the agency’s determination regarding the appellant’s loss of military membership ; she further found that the appellant, as a covered employee, was nevertheless entitled to the procedural p rotections of Title 5 during the removal process. ID at 5. The administrative judge therefore found that the agency denied the appellant her due process rights when it failed to provide adequate notice, an opportunity to respond, and a subsequent written decision. ID at 5. As a result, the administrative judge reversed the action, and she ordered the agency to cancel the removal and retroactively restore the appellant, effective July 13, 2018. ID at 6. The administrative judge also ordered the agency to provide interim relief pursuant to 5 U.S.C. § 7701 (b)(2)(A). ID at 7. 4 ¶6 The agency has filed a petition for review. Petition for Review (PFR) File, Tab 1. The appellant has filed a response to the agency’s petition for review and a motion to dismiss the petition for review for failure to comply with the administrative judge’s interim relief order. PFR File, Tabs 3 -4. DISCUSSION OF ARGUME NTS ON REVIEW ¶7 The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation . Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). The appellant has the burden of establishing jurisdiction over her appeal by a preponderance of the evidence. 5 C.F.R. § 1201.56 (b)(2)(i)(A). ¶8 On review, the agency argues th at the administrative judge erred in finding that dual status military technicians are considere d covered employees under Title 5 regardless of the basis upon which the adverse action at issue was taken. PFR File, Tab 1 at 19 -20. In support of its argume nt, the agency contends that Congress plainly limited the expansion of dual status military technicians’ appeal rights to appeals that did not concern “ activity occurring while the member is in a military pay status, or . . . fitness for duty in the reserv e components .” Id. at 20-21 (quoting 32 U.S.C. § 709(f)(4)). The agency argues that because the appellant lost her military memb ership as a result of a fitness -for-duty determination, the Board l acks jurisdiction over the appeal. Id. at 6-7, 25. For the following reasons, we agree with the agency that the Board lacks jurisdiction over the appeal. ¶9 While this appeal was pending on petition for review, the U.S. Court of Appeals for the Federal Circ uit issued Dyer v. Department of the Air Force , 971 F.3d 1377 (Fed. Cir. 2020) , which governs the outcome in this matter , even though the events in this matter predate the issuance of the Dyer decision . See Heartland By -Products, Inc. v. U.S. , 568 F.3d 1360 , 1365 (Fed. Cir. 2009) (“Under general principles of law, judicial decisions are given retroactive 5 effect.”); NV24 -Keyport2 v. Department of the Navy , 123 M.S.P.R. 263, ¶ 22 (2016) (noting that the Board generally applies case law issued while an appeal is pending); Porter v. Department of Defense , 98 M.S.P.R. 461, ¶¶ 11-14 (2005) (explaining that judicial decisio ns are given retroactive effect to all pending cases, whether or not those cases involve predecision events); see also Fairall v. Veterans Administration , 33 M.S.P.R. 33 , 39 (stating that decisions of the U.S. Court of Appeals for the Federal Circuit are controlling autho rity for the Board) , aff’d , 844 F.2d 775 (Fed. Cir. 1987). We briefly discuss the relevant facts from Dyer . ¶10 Mr. Dyer enlisted in the West Vir ginia Air National Guard (WVANG) , and he was later appointed in his civilian capacity to a dual status position as a military technician. Dyer , 971 F.3d at 1378 . Pursuant to 32 U.S.C. § 709(b), (f)(1)(A), and as a requireme nt to maintain his dual status position, Mr. Dyer was required to continue his membership with the WVANG. Id. In June 2017, the W VANG Selective Retention Review Board recommended Mr. Dyer’s separation from the WVANG. Id. Based on this recommendation, the West Virginia Adjutant General notified Mr. Dyer that he would be separated from the WVANG on December 31, 2017. Id. at 1378 -79. Mr. Dyer requested reconsideration, and the Adjutant General declined to overturn the sep aration decision.3 Id. at 1379. The Adjutant General also notified Mr. Dyer that upon his separation from the WVANG, his position as a dual status technician would be terminated because he no longer fulfilled the requirement of 32 U.S.C. § 709(b). Id. Mr. Dyer filed a Board appeal, and the administrativ e judge found that the Board had jurisdiction over the appeal and that Mr. Dyer was provided with due process. Id. The initial decision became the Board’s final decision, and Mr. Dyer petitioned the court for review. Id. 3 Ultimately, the Adjutant General extended Mr. Dyer’s term of service until June 30, 2018. Dyer , 971 F.3d at 1379. 6 ¶11 The court found that the Board lacked jurisdiction over Mr. Dyer’s appeal. Id. In pertinent part, the court noted that , to be employed as a dual status technician, the civilian must be a military member of the National Guard, among other requirements. Id. at 1380 (citing 32 U.S.C. § 709(b)(2) ). The court described as “clear” the statutory language in 32 U.S.C. § 709(f)(1) (A), which states that the state Adjutant General must “promptly separate[] from military technician (dual status) empl oyment any dual status technician who has been separated from the National Guard. ” Id. (citing 32 U.S.C. § 709(f)(1)(A)). ¶12 The court noted that , prior to the 2017 NDAA, any dual status techni cian who was separated due to the failure to maintain National Guard membership only had appeal rights to the state Adjutant General and dual status technicians were excluded from certain procedural protections under T itle 5. Id. However, the court expla ined that the 2017 NDAA added a clause to section 709(f)(4) limiting the prohibition on appeal rights. Importantly, the provision at 32 U.S.C. § 709(f)(4) now states that “a right of appeal which may exist with respect to paragraph (1) . . . shall not extend beyond the adjutant g eneral of the jurisdiction concerned when the appeal concerns activity occurring while the member is in a military pay status, or concerns fitness for duty in the reserve c omponents.”4 Dyer , 971 F.3d at 1381 (emphasis in original). The court also noted that the 2017 NDAA amended sections related to T itle 5 to allow dual status employees to be covered in some circumstances.5 Id. 4 The 2017 NDAA defined the term “fitness for duty in the reserve components” as referring “only to military -unique service requirements that attend to military service generally .” 32 U.S.C. § 709(j)(2) ; Dyer , 971 F.3d at 1382 . 5 Office of Personnel Manageme nt regulations implementing the 2017 NDAA , which became effective on December 12, 2022, state that adverse actions and performance -based removals or reductions in grade of dual status National Guard Technicians are not appealable to the Board except as provided by 32 U.S.C. § 709(f)(5) . 5 C.F.R. §§ 432.102 (b)(16), 752.401(b)(17 ); see Probation on Initial Appointment to a Competitive Position, 87 Fed. Reg. 67765, 67782 -83 (Nov. 10, 2022). 7 ¶13 The court stated that it was un disputed that Mr. Dyer was not in a military pay status when he was terminated from dual status employment. Id. at 1382. Noting that National Guard membership is a “fundamental military -specific requirement attendant to dual[] sta tus employee’s military service ,” and the statute does not give the Adjutant General any discretion with respect to the terminatio n of a dual status employee who has been separated from the National Guard, the court concluded that Mr. Dyer’s termination from dual status employmen t as a result of his separation from the National Guard concerned fitness for duty in the reserve components. Id. The court further held that the termination fell within an exception that precludes a right of appeal to the Board pursuant to section 709(f )(4), and the Board therefore lacks jurisdiction over Mr. Dyer’s appeal . Id. at 1384. ¶14 Similarly, here, the appellant’s termination based on her separation from the National Guard concerned her fitness for duty in the reserve components . Pursuant to 32 U.S.C. § 709(f)(4), her only avenue for appeal is with the Adjutant General, and the Board lacks jurisdiction over the appeal. Accordingly, we do not address any arguments related to due proces s, and we exercise our discretion not to dismiss the agency’s petition for review regardless of whether the agency complied with the administrative judge’s interim relief order . See Lovoy v. Department of Health and Human Services , 94 M.S.P.R. 571, ¶ 28 (2003). 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 6 Since the issuance of the initial decision in this matter, the Board m ay have updated the notice 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 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of ho w courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Fail ure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have qu estions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washi ngton, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 9 http://www.mspb.gov/prob ono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 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 rep resentative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any req uirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims onl y, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, 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. 2 0507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your petition for 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB de cisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 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 petit ion for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 12 Cont act information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsite s.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	PHILIP_JUANITA_NY_0752_18_0166_I_1_FINAL_ORDER_2027857.pdf	2023-05-03	null	NY-0752	NP
3,192	https://www.mspb.gov/decisions/nonprecedential/HALTERMAN_JESSE_R_DC_0432_16_0833_X_1_FINAL_ORDER_2027891.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JESSE R. HALTERMAN, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER S DC-0432 -16-0833 -X-1 DC-0432 -16-0833 -C-1 DATE: May 3, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Neil C. Bonney , Esquire, and Allison B. Eddy , Esquire, Virginia Beach, Virginia, for the appellant. Lorna Jerome , Esquire, and Edith Moore McGee , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Cha irman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 The agency filed a petition for review of the administrative j udge’s compliance initial decision in Halterman v. Department of Homeland Security , MSPB Docket No. DC -0432 -16-0833 -C-1, and the appellant filed a cross petition for review . Compliance Petition for Review File, Tabs 1, 3. In an Order issued on June 23, 2022, the Board found that the agency ’s evidence showed that it was largely in compliance with the administrative judge’s order . Halterman v. Department of Homeland Security , MSPB Docket No. DC -0432 -16-0833 -C-1, Order (June 23, 2022) (Order) . However , the Board found the agency failed to provide evidence that it had awarded the appellant the proper amount of interest due for the back pay awarded and directed it to a ddress this issue , docketing the subsequent proceedings under Halterman v. Department of Homeland Security , MSPB Docket No. DC -0432 -16-0833 -X-1. Order, ¶¶ 15, 19, 25-27. ¶2 We now JOIN these matters for processing , and, for the reasons discussed below, we find the agency is now in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶3 In its June 23, 2022 Order, the Board noted , in pertinent part, that the agency included back pay for the initial pay period, but for that period, August 17-20, 2016, no interest was awarded. Order, ¶ 19. The Board ’s Order required the agency to submit evidence and a narrative statement of complianc e, which must include proof the appellant w as proper ly paid the interest owed on back pay for PP 16/2016 that has accrued from August 17, 2016. Id., ¶ 26. The Order notified the appellant that he may respond within 20 days of the agency’s submission of its evidence. Id., ¶ 28. It also advised t he appellant that, if he did not respond, the Board might assume that he is satisfied with the agency’s action . Id. 3 ¶4 The agency submitted evidence of compliance on August 18, 2022. Compliance Referral File, Tab 2. The evidence includes a sworn statement that the agency paid the appellant the interest owed on the back pay for pay period 16 in 2016 that has accrued since August 17, 2016. Id. at 6 -7. The agency’s submission also includes the calculations it used, based on the Office of Personnel Managemen t’s back pay/interest calculator. Id. at 9, 15, 21. The appellant has not filed a timely response to this evidence, and the Board therefore assumes that he is satisfied. ¶5 Accordingly, we find the agency is now in compliance and dismiss the petition for enforcement. This is the final decision of the Merit Systems Protection Board in these compliance proceedings. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F .R. § 1201.183 (c)(1)). NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. See 5 U.S.C. § 7703 (a)(1). By statute the nature of your claims determines the time limit for seeking such 3 Since the issuance of the initial decision in thi s matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide le gal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read car efully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit , you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5 If you are interested in sec uring pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants befor e the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option app lies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a di sposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 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, colo r, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWeb sites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). Yo u must file any such request with the 6 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case , and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be a ddressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to y ou only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices describe d in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 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 Fed eral Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you ar e interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Boa rd appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. July 7, 2018, permanently allows appellants to file petitions for judic ial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HALTERMAN_JESSE_R_DC_0432_16_0833_X_1_FINAL_ORDER_2027891.pdf	2023-05-03	null	S	NP
3,193	https://www.mspb.gov/decisions/nonprecedential/JENKINS_LYNN_DE_0752_19_0103_I_1_FINAL_ORDER_2027913.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LYNN JENKINS, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DE-0752 -19-0103 -I-1 DATE: May 3, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lynn Jenkins , Crescent, Iowa, pro se. Jacob W. Harberg , Esquire, Omaha, Nebraska, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has petitioned for review of the March 20, 2019 initial decision , which dismissed this removal appeal as untimel y filed without good cause shown for the delay . Initial Appeal File, Tab 15, Initial Decision at 1-2, 7; Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the appeal as settled. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 ¶2 After the filing of the petition for review, the parties submitted a document entitled “ Negotiated Settlement Agreement ” signed and dated by the appellant on March 21, 2023 , and by the agency on March 22, 2023 . PFR File, Tab 5 at 7. The document provides, among other things, for the withdra wal of the above -captioned appeal. Id. at 5. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entere d 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 ac cepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it . See Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 10 -11 (2017) . ¶4 Here, we find that the parties have entered into a settlement agreement, understand its terms, a nd intend for the agreement to be entered into the record for enforcement by the Board. PFR File, Tab 5 at 3, 6-7. Accordingly, we find that dismissing the appeal with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appro priate 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. Id. at 6. ¶5 This is the final decision of the Merit Sy stems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS If the age ncy 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 3 decision on this appeal. Th e 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 RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature o f your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal right s, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdict ion. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismi ssal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that f orum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the not ice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies t o you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposit ion of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 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 5 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) a nd 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you re ceive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial revi ew either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeal s for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circu it, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The original statutory provision that provided for judicial review of certain whistleblower claims by a ny court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor w arrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	JENKINS_LYNN_DE_0752_19_0103_I_1_FINAL_ORDER_2027913.pdf	2023-05-03	null	DE-0752	NP
3,194	https://www.mspb.gov/decisions/nonprecedential/HALL_ROSETTA_M_CH_3443_18_0182_I_1_FINAL_ORDER_2027921.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ROSETTA M. HALL, Appellant, v. DEPARTMENT OF AGRICU LTURE, Agency. DOCKET NUMBER CH-3443 -18-0182 -I-1 DATE: May 3, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Rosetta M. Hall , Florissant, Missouri, pro se. John Hippe , Esquire, St. Louis, Missouri, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 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 s tatute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of di scretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulati ons, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 After more than 22 years of military service with the U.S. Navy, the appellant accepted a civilian position w ithin the Department of the Navy effective December 2, 2002. Initial Appeal File (IAF), Tab 3, Subtab 1, Tab 7 at 14-15. On January 27, 2003, the Department of the Navy adjusted the appellant’s leave service computation date to May 25, 2002, to account f or her prior military service. IAF, Tab 3, Subtab 2. On June 3, 2010, the Department of the Navy removed the appellant under 5 U.S.C. chapter 75. Hall v. Department of the Navy , MSPB Docket No. CH -0752 -10-0712 -C-1, Compliance File (0712 CF) , Tab 1 at 13. The appellant filed a Board appeal, and the parties reached a settlement agreement under which the appellant agreed to resign in exchange for a clean record. Id. at 13 -15. The appellant resigned effective October 23, 2010. IAF, Tab 3, Subtab 4. On F ebruary 12, 2012, the appellant was reinstated to a position within the Department of Veterans Affairs, with a leave service computation date of March 20, 2004. Id., Subtabs 5 -6. On January 25, 2015, the 3 appellant transferred to a Human Resources Assista nt position with the Department of Agriculture, which is the respondent agency in this appeal. Id., Subtab 8. Her service computation date remained March 20, 2004. Id. ¶3 On January 25, 2018, the appellant filed the instant Board appeal to dispute the agency’s calculation of her service computation date. IAF, Tab 1. She requested a hearing. IAF, Tab 5 at 7. The administrative judge notified the appellant that the Board might lack jurisdiction over her appeal. IAF, Tab 4 at 2. Nevertheless, she not ed several types of appeal s in which the Board could have jurisdiction to review the correctness of a service computation date: (1) a reduction in force (RIF) appeal ; (2) an appeal from a final agency decision affecting the appellant’s rights and benefits under the Civil Service Retirement System or Federal Employees’ Retirement System ; (3) an individual right of action appeal ; (4) a Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) appeal ; and (5) a Veterans Employment Opportuniti es Act of 1998 (VEOA) appeal. IAF, Tab 11 at 1 -4. She ordered the appellant to file evidence and argument on the jurisdictional issue. Id. at 4 -5. ¶4 The appellant responded, asserting multiple bases for jurisdiction, including violation of the settlement agreement reached in her prior appeal, discrimination and retaliation under USERRA, denial of veterans’ preference under VEOA, and retaliation under the Whistleblower Protection Act (WPA). IAF, Tab 12 at 5 -6, 16. The agency responded as well, requesting that the Board dismiss the appeal for lack of jurisdiction. IAF, Tab 13. After the close of the record, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 14, Initial Decision (ID). She found th at the dispute concerning the appellant’s service computation date was not directly appealable to the Board, and although she acknowledged the appellant’s assertion that she had filed a whistleblower complaint with the Office of Special Counsel, she found that she was not claiming that the alleged misidentification of her service computation date was retaliatory, but rather that it was an error. ID at 3-4. 4 ¶5 The appellant has filed a petition for review in which she again appears to assert multiple bases for jurisdiction, including the WPA, USERRA, VEOA, the RIF regulations of the Office of Personnel Management (OPM) , and the aforementioned settlement agreement. Petition for Review (PFR) File, Tab 1. The agency has filed a response, arguing that the appellant has failed to establish Board jurisdiction over her appeal and has not shown that she was adversely affected by any leave -related act ion. PFR File, Tab 3. After the close of the record on review, the appellant moved that the Board accept additional evidence regarding her military service credit and service computation date. PFR File, Tab 4. ANALYSIS The appellant’s Motion to Accept A dditional Information is denied. ¶6 Under 5 C.F.R. § 1201.114 (e), a reply to a response to a petition for review must be filed within 10 days after the date of service of the response. In this case, the agency served its response on May 23, 2018, which made the deadline for reply June 4, 2018.3 PFR File, Tab 3. Under 5 C.F.R. § 1201.114 (k), the record on review closes u pon the expiration of the period for filing the reply to the response to the petition for review. Accordingly, the record on review closed on June 4, 2018. On June 18, 2018, the appellant moved to submit additional information concerning her military ser vice credit and service computation date. PFR File, Tab 4. Based on the appellant’s description of this evidence, we find that it would not change the outcome of th e appeal. Id. at 4. Because the appellant has not shown that this evidence is new and ma terial, her motion is denied . See 5 C.F.R. § 1201.114 (k); see also Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (defining “material evidence”). 3 Ten days from May 23, 2018 , was Saturday, June 2, 2018. Therefore, the filing deadline was the next business day, Monday, June 4, 2018. See 5 C.F.R. § 1201.23 . 5 The Board lacks jurisdiction over the appellant’s claim in the context of a RIF appeal. ¶7 On p etition for review, the appellant argues that her service computation date could affect her RIF rights, and that the agency may correct any error in her service computation date before a RIF is implemented. PFR File, Tab 1 at 12 -14. Although the appellan t is correct that the agency is not required to await a RIF before making make any corrections to her record, this does not mean that the Board has jurisdiction over this matter before a RIF is actually implemented. Absent a RIF, the Board has no authorit y to assume a priori jurisdiction under OPM’s RIF regulations as the appellant contends. An employee must first be the subject of a RIF action before the Board’s jurisdiction can be invoked, and there is no indication in the record of this case that the a ppellant has been subjected to a RIF action. Kelly v. Office of Personnel Management , 53 M.S.P.R. 511 , 516 -17 (1992); see 5 C.F.R. § 351.901 . The appellant has not established jurisdiction over her appeal under USERRA . ¶8 On petition for review, the appellant renews her pro forma allegation that the agency has vi olated USERRA’s anti -discrimination and anti -retaliation provisions. PFR File, Tab 1 at 10; IAF, Tab 12 at 5 -6. However, it is not clear to us whether the appellant is alleging that the matters relating to her service computation date are the product of uniformed service discrimination and reprisal for protected activity under USERRA, or whether she is referring to matters already addressed in her previous USERRA appeals. PFR File, Tab 1 at 10, 16; IAF, Tab 1 at 5 -7, Tab 5 at 5, Tab 12 at 5 -6, 10 -11, 13; Hall v. Department of Agriculture , MSPB Docket No. CH -4324 -17-0097 -I-1; Hall v. Department of Veterans Affairs , MSPB Docket No. CH -3330 -14-0049 -I-1. In any event, a pro forma invocation of USERRA is not sufficient to establish USERRA jurisdict ion. Duran d v. Environmental Protection Agency , 106 M.S.P.R. 533, ¶ 10 (2007). 6 The appellant has not established jurisdicti on over her appeal under VEO A. ¶9 On petition for review, the appellant renews her argument that her veterans’ preference rights have been violated. PFR File, Tab 1 at 10, 15; IAF, Tab 12 at 6. However, as with her USERRA allegations, it is unclear whether she is alleging that the matters related to her service computation date constitute a veterans’ preference violation or whether she is referring exclusively to matters already addressed in her previous VEOA appeals. PFR File, Tab 1 at 10, 15 -16; IAF, Tab 12 at 6, 10 -13, 26; Hall v. Department of Agriculture , MSPB Docket N o. CH - 3330 -17-0069 -I-1; Hall , MSPB Docket No. CH -3330 -14-0049 -I-1. Furthermore, as the appellant is aware from her prior appeals, a prerequisite to Board jurisdiction over a VEOA claim is that the appellant first exhaust her administrative remedies with t he Department of Labor (DOL). Mims v. Social Security Administration , 120 M.S.P.R. 213 , ¶ 23 (2013) ; see 5 U.S.C. § 3330a (d). There is no indication in the record that the appellant has filed a veterans’ preference complaint with DOL concerning her service computation date. The appellant’s allegation of a breach of settlement agreement is not properly before the Board in the context of the instant appeal. ¶10 On petition for review, the appellant renews her argument that the Department of the Navy has breached the October 19, 2010 settlement agreement entered into in a p rior appeal. PFR File, Tab 1 at 8 -10; IAF, Tab 5 at 4, Tab 12 at 5. This matter is not properly before the Board in the instant appeal for several reasons, including that the Board’s regulations provide that such allegations of breach be brought as petit ions for enforcement under the procedures of 5 C.F.R. part 1201, subpart F, and that the respondent agency in this appeal is not a party to the settlement agreement at issue. In any event, we take notice that the appellant’s allegation of breach has alrea dy be en considered as a petition for 7 enforcement in an addendum proceeding to the appeal in which the agreement was entered into the record.4 Hall , MSPB Docket No. CH -0752 -10-0712 -C-1. The remaining authorities upon which the appellant relies are not sour ces of Board jurisdiction. ¶11 The appellant appears to assert jurisdiction under several additional theories, including violations of the Merit System Principles, Chapter 6 of OPM’s Guide to Processing Personnel Actions, and various statutes covered under 5 U.S.C. § 2302 (b)(1). PFR File, Tab 1 at 10 . None of these laws or rules provide an independent basis for Board jurisdiction. See Davis v. Department of Defense , 105 M.S.P.R. 604 , ¶ 15 (2007); Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980), aff'd , 681 F.2d 867 , 871 -73 (D.C. Cir. 1982). NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriat e for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applica ble to your claims and carefully follow all 4 On July 9, 2019, the administrative judge in the addendum proceeding issued a compliance initial decision denying the appellant’s petition for enforcement. Hall v. Department of the Navy , MSPB Docket No. CH -0752 -10-0712 -C-1, Compliance Initial Decision (CID) at 1, 7 (July 9, 2019) ; 0712 CF, Tab 33. Neither party filed a petition for review of the compliance initial decision, which became final on August 13, 2019. CID at 7. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choice s of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services p rovided by any attorney nor warrants that any attorney will accept representation in a given case. 9 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your repres entative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex , national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact informa tion for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for revi ew to the EEOC by regular U.S. mail, the address of the EEOC is: 10 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhanc ement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in s ection 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 whistleblo wer claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 If you submit a petition for judici al review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono repr esentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HALL_ROSETTA_M_CH_3443_18_0182_I_1_FINAL_ORDER_2027921.pdf	2023-05-03	null	CH-3443	NP
3,195	https://www.mspb.gov/decisions/nonprecedential/DUGGAN_GEORGE_SF_1221_16_0150_W_2_REMAND_ORDER_2027940.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD GEORGE DUGGAN, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER SF-1221 -16-0150 -W-2 DATE: May 3, 2023 THIS ORDER IS NONPRECEDENTIAL1 George Duggan , Newman, California, pro se. David Gallagher , Fort Belvoir, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initia l decision, which dismissed his individual right of action (IRA) appeal as untimely refiled without good cause for the delay in filing . For the reasons discussed below, we GRANT the appellant’s petition for review , VACATE the initial decision and REMAND 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 case to the regional office for further adjudication in accordance with this Order. ¶2 The appellant is a Senior Auditor, GS -0511 -12, with the Defense Contract Audit Agency . Duggan v. Department of Defense , MSPB Docket No. SF -1221 - 16-0150 -W-1, Initial Appeal File (IAF), Tab 1 at 1. On December 5, 2016 , he filed this appeal alleging that he made protected disclosures of a violat ion of law, rule, or regulation; gross waste of funds; abuse of authority; and gross mismanagement , which were contribu ting factors in a series of agency actions taken against him between 2007 and 2012 . IAF, Tabs 1 -4. The appellant later moved for dismissal of the appeal without prejudice pending the Board’s ruling on his petition for review in a prior IRA appeal, Duggan v. Department of Defense , MSPB Docket No. SF -1221 -14-0544 -W-2, Final Order (Sept. 13, 2016) [hereinafter Duggan I ]. IAF, Tab 6. The agency did not object.2 IAF, Tab 9. The administrative judge dismissed the appeal without prejudice on February 3, 2016 . IAF, Tab 10 , Initial Decision . In the order dismissing the appeal, t he administrative judge advised the appellant that he might “refile his appeal within 30 days of the issuance of the Board’s final decision in SF -1221 -14-0544 -W-2, or one year from today’s date, whichever is earlier .” Id. at 2 (emphasis in original). The Board issued it s Final Order in Duggan I on September 13, 2016 . The deadline for refiling th e instant appeal thus became October 13, 2016. Id. at 1. ¶3 The appellant refiled th is appeal on November 11, 2016 . Duggan v. Department of Defense , MSPB Docket No. SF -1221 -16-0150 -W-2, Refiled Appeal File (RAF), Tab 1. In the acknowledgment o rder, the administrative judge advised the appellant that his refiling notice appeared to be untimel y by 29 days , and he ordered the appellant to file ev idence and argument showing good 2 The agency did, however, object to the appellant’s proposed refiling deadl ine, which was 1 year from the date of his motion to dismiss. IAF, Tabs 6, 9. The agency proposed instead that the administrative judge set the refiling deadline to fall 6 months from the date of the appellant’s motion or 30 days from the date of the Board’s final decision in Duggan I , whichever was later. IAF, Tab 9. 3 cause for the delay in refiling. RAF, Tab 2 at 1 -4. In his response, the appellant stated that he mistakenly believed he had 60 days in which to refile his appeal. RAF, Tab 3 at 5. He explained that he confused the time limit for refiling the instant appeal with the time limit for filing a court appeal of the Board’s Final Order in Duggan I . Id. He stated that, because he had confused the length of the two filing periods , he failed to request an extension of time in which to refile this appeal . Id. He further stated that his confusion was caused by two medical conditions , knee surgery on Sep tember 23, 2016, during the refiling period, and the symptoms of Post -Traumatic Stress Disorder (PTSD) , a condition with which he was diagnosed on November 2, 2016. Id. He attached to his response progress notes from his surgeon stating that he had a pre - and post -surgical diagnosis of a medial meniscus tear , which was repair ed by arthroscopic surgery to the left knee on September 23, 2016. Id. at 6. The appellant also attached a brief email message dated November 6, 2016, from a psychologist, indicating that the appellant’s test results showed that he suffered from PTSD. Id. at 6-7; RAF, Tab 1 at 6 -7. ¶4 The administrative judge acknowledged that the initial appeal was timely filed and that the agency neither object ed to the dismissal without prejudice nor allege d that it would be prejudiced if the re filing deadline was waive d. RAF, Tab 10, Initial Decision (ID) at 5. He explain ed, however, that the refiling deadline was clearly set forth in the decision dismissing the appeal without prejudice , the deadline fell within the parameters requested by the appellant , and the 29 -day delay was not a minimal one. Id. He noted that the appellant, though pro se, “has had numerous previous Board appeals in which he has represented himself effectively, and is very familiar with Board case law and procedures.” Id. He f urther noted that nothing in the progress notes i ndicate d that the appellant was mentally i mpaired either before or after the surgery , and the email message from his psychologist , which came 24 days after the refiling deadline , did not state how, when , or if the diagnosis adversely affected the appellant’s capacity to 4 refile, or to request an extension to do so. ID at 4. The administrative judge thus dismissed the appeal as untimely refiled without good cause shown for the delay. ID at 5. ¶5 On review, the appellant argues that he did not know that his medical evidence would be deemed inadequate based on the guidance he received from the administrative judge . Had he known, he explains, he would have submitted additional evidence. Petition for Review (PFR) File, Tab 1 at 5 -6 (citing Lacy v. Department of the Navy , 78 M .S.P.R. 434 (1998) (“ When, as here, an appellant states that the reas on for a filing delay is physical or mental illness, he must receive explicit information regarding the legal standard for establishing good cause on that basis, and he must be afforded a fair opportunity to submit evidence and argument to show that he met that standard. ”) (emphasis in original) ). Nevertheless, the appellant argue s, a reasonable person would conclude that his knee injury caused pain and distraction before the surgery , which occurred 10 days into the refiling period, as well as pain during recovery . PFR File, Tab 1 at 6. H e asserts that he was thus impaired for th e entire 30 -day filing period. Id. at 6-7. As for the administrative judge’s dismissal of the PTSD diagnosis because it occurred after the refiling deadline, the appellant explains that PTSD develops from exposure to a traumatic event, and a reasonable p erson would expect there to be a lag in time between the triggering event and presentation of symptoms and the diagnosis . Id. at 7-8. The appellant also objects to the administrative judge’s characterization of him as a pro se appellant “who represented himself effectively, and is very familiar with Board case law and procedures,” namely because he has not prevailed in most of his Board litigation . Id. at 8. ¶6 The administrative judge correct ly found that the refiled appeal was untimely by 29 days. ID at 2; RAF, Tab 2 at 2. As for whether the appellant has shown good cause for waiving the refiling deadline , the Board has held that its dismissal without prejudice policy should not become a trap that would deny the unwary pro se appellant of th e opportunity to have h is case decided on the merits. 5 Brown v. Office of Personnel Management , 86 M.S.P.R. 417 , ¶ 8 (2000). The Board has identified the following factors as supporting a finding of good cause for waiving a refiling deadline: an appellant’s pro se status; timely filing of the initial appeal; intent throughout the proceedings to file an appeal; minimal delay in refil ing, and any confusion; the small number of dismissals without prejudice; an arbitrary refiling deadline; the agency’s failure to object to the dismissal without prejudice; and the lack of prejudice to the agency in allowing the refiled appeal to go forwar d. Gaddy v. Department of the Navy , 100 M.S.P.R. 485 , ¶ 13 (2005). On the issue of timeliness, the appellant bears the burden of p roof. 5 C.F.R. § 1201.57 (c)(2). ¶7 In w eighing the Gaddy factors here , several factors work in the appellant’s favor.3 They include t he appellant’s timely filing of his initial appeal , his articulated intent through out the proceedings to refile his appeal , only a single dismissal without prejudice, and the agency’s failure to object to the dismissal without prejudice and the apparent lack of prejudice to the agency in allowing the refile d appeal to proceed . IAF, Tabs 1 -4, 6, 9; RAF, Tab 6. However, t he clarity of the order language dismissing the appeal without prejudice works against the appellant. IAF, Tab 10 at 2. We also do not consider the deadline to have been arbitrary . In fac t, when he set the deadline, the administrative judge seems to have been influenced by the appellant’s preferences to the same extent that he was influenced by those of the agency. IAF, Tab 6 at 4 , Tab 9 at 4, Tab 10 at 2. However, the order language inc ludes an alternative deadline , which might have contributed to the confusion the appellant alleges . Brown , 86 M.S.P.R. 417 , ¶ 8. A 29 -day delay is not a minimal one, but the Board has remanded cases with similarly lengthy delays in refiling for consideration on the merits . See Jaramillo 3 In 2017, the U.S. Court of Appeals for the Federal Circuit, in an unpublished decision, cited Gaddy to vacate a Board decision in which the court held that the Board abused its discretion by concluding that Mr. Schnell’s petitions for appeal were untimely filed under circumstances less sympathetic than those presented here. Schnell v. Merit Systems Pro tection Board , 673 F. App’x 1011 (Fed. Cir. 2017). 6 v. Department of the Air Force , 106 M.S.P.R. 244 , ¶ 5 (2007) ( finding that the waiver of the refiling deadline was warranted even though the appellant’s representa tive miscalculated the deadline and refiled the appeal 29 day s late). ¶8 Even if the appellant is, as the administrative judge characterized him, an effective self -representative before the Board and “very familiar with Board case law and procedures,” ID at 5, we cannot disregard his pro se status . The administrative judge cited a nonprecedential order for the proposition that the Board now avoids distinctions between pro se and represented ap pellants. ID at 5 (citing Snowden v. Department of the Interior , MSPB Docket No. DC-0752 -11- 0988 -I-2, Final Order (June 28, 2013) ). In Snowden , however, the Board did not invalidate the distinction between pro se and represented appellants . Instead, the Board simply offered examples of cases in which the other Gaddy factors outweighed the fact that the appellant had been repr esented. ¶9 Further, here, t he appellant p resented evidence of two medical conditions, outpatient surgery on his left knee, which occurred on the tenth day of the refiling period, and PTSD, which was diagnosed 24 days after the refiling period ended. RAF, Ta b 1 at 6-7, Tab 3 at 6 -7. His medical documentation is slim . As the administrative judge pointed out, it does not address how his conditions prevented him from refiling the appeal on time . ID at 4. W e also reject the appellant’s contention that the adm inistrative judge failed to inform him of the legal standard for est ablishing good cause . PFR File, Tab 1 at 5 -6; RAF, Tab 2 at 3 n.2. Yet, the date that the appellant refiled —59 days after the Board issued its Final Order in Duggan I —is consistent with his a ssertion that he believed he had 60 days in which to refile his appeal . RAF, Tab 3 at 5. Although the agency argued that the appellant had adequate time in which to manage his affairs because he was on leave during the refiling period , RAF, Tab 6 at 6, we cannot simply ignore his claims regarding stress and confusion. The appellant has averred under penalty of perjury that he was diagnosed with PTSD on November 2, 201 6, and that he was suffering from symptoms of that illness beforehand. RAF, Ta b 1 at 5. 7 Persons who are diagnosed with PTSD have presented with various symptoms related to reactivity, cogniti on, and mood regulation for at least a month before diagnosis. See National Institute of Mental Health , Post -Traumatic Stress Disorder , https:// www.nimh.nih.gov/health/topics/post -traumatic -stress -disorder - ptsd. The symptoms of PTSD may continue for months after the triggering event and significantly affect the patient’s ability to manage daily tasks.4 Id. Although a more detailed statement of the appellant’s c ondition would have been preferable, when we weigh all of the Gaddy factors, we find that the appellant met his burden of proof. We do not absolve the appellant of his obligation to carefully read a nd co mply with th e Board’s orders and decisions, but we find that it is in the interest of justice to waive the refiling deadline and remand the appeal for adjudication. ORDER For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 4 The Board takes official notice of this information about PTSD pursuant to 5 C.F.R. § 1201.64 .	DUGGAN_GEORGE_SF_1221_16_0150_W_2_REMAND_ORDER_2027940.pdf	2023-05-03	null	SF-1221	NP
3,196	https://www.mspb.gov/decisions/nonprecedential/GIUGLIANO_LISA_PH_0353_14_0772_I_3_FINAL_ORDER_2027355.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LISA GIUGLIANO, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER S PH-0353 -14-0772 -I-3 PH-4324 -16-0328 -I-2 DATE: May 2, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charles L. Holsworth , Esquire, Pittsburgh, Pennsylvania, for the appellant. Marcus S. Graham , Esquire, and Paul P. Kranick , Esquire, Philadelphia , Pennsylvania, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which granted in part and denied in part her request for corrective action under the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301 -4335) (USERRA) . Generally, we grant petitions such as this one only in the following ci rcumstances: 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 judg e’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argu ment is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that 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 remedy analysis and to apply the correct remedial authority , we AFFIRM the initial decision. ¶2 In June 2014, the appellant filed her first of two Board appeals under USERRA. Giugliano v. Department of Veterans Affair s, MSPB Docket No. PH- 0353 -14-0772 -I-1, Initial Appeal File (0772 IAF), Tab 1. The administrative judge twice dismissed the first appeal without prejudice for subsequent refiling, resulting in three docket numbers for that first appeal. 0772 IAF, Tab 45; Giugliano v. Department of Veterans Affairs , MSPB Docket No. PH -0353 -14- 0772 -I-2, Appeal File (0772 I -2 AF), Tabs 1, 38; Giugliano v. Department of Veterans Affairs , MSPB Docket No. PH -0353 -14-0772 -I-3, Appeal File (0772 I -3 AF), Tab 1. 3 ¶3 In May 2016, the a ppellant filed her second USERRA appeal. Giugliano v. Department of Veterans Affairs , MSPB Docket No. PH -4324 -16-0328 -I-1, Initial Appeal File (0328 IAF), Tab 1. The administrative judge also dismissed that appeal without prejudice to subsequent refiling, resulting in an additional docket number . 0328 IAF, Tab 40; Giugliano v. Department of Veterans Affairs , MSPB Docket No. PH -4324 -16-0328 -I-2, Appeal File (0328 I -2 AF), Tab 1. In the meantime, the administrative judge joined the two appeals for adjudication.3 0772 I -2 AF, Tab 3. ¶4 After joining the appeals and developing the record, the administrative judge held a 3 -day hearing. 0772 I -3, Tabs 19 -21. He then issued an initial decision. 0772 I -3 AF, Tab 27, Initial Decision (ID).4 The following facts, as further detailed in that initial decision, appear to be undisputed. ¶5 At all times relevant to this appeal, the appellant was both an employee of the agency and a member of the Air Force Reserve. ID at 2. She began her uniformed serv ice in July 2006, and the agency hired her as a call center nurse in March 2009. Id. Throughout her tenure with the agency, she has been deployed or otherwise responsible for performing military duty on a number of occasions, including two instances of s ervice lasting more than 90 days. ID at 3 & n.2. Generally speaking, it is the agency’s treatment upon her return from uniformed service that is the subject of this appeal. In more than a dozen particularized allegations, the appellant alleged, for exam ple, that the agency erred by 3 Following the administrative judge’s joinder of t he appellant’s two appeals, all subsequent filings were included in the records for each appeal . Compare, e.g ., 0772 I-2 AF, Tabs 7-12 (appellant’s prehearing submissions), with 0328 IAF , Tabs 11 -16 (the same prehearing submissions). For the sake of simp licity and clarity, we will exclusively cite to the file associated with the appellant’s original 0772 appeal. 4 When the administrative judge first issued the initial decision, it contained some formatting errors and errors pertaining to notices to the pa rties. Therefore, the administrative judge issue d an erratum order, followed by a corrected initial decision. Compare 0772 I -3 AF, Tab 24, with 0772 I -3 AF, Tab 26; ID. We will exclusively cite to the corrected initial decision. 4 eliminating a position during one of her deployments, erroneously assigned her to another position, improperly downgraded her performance appraisals, and discriminated against her by not selecting her for several positions . 0772 I -2 AF, Tab 32 at 5 -6. ¶6 The administrative judge granted in part and denied in part the appellant’s request for corrective action.5 ID. He found that the agency violated the USERRA discrimination provisions when it (1) failed t o select the appellant f or the L ead Home Telehealth Coordinator position in November 2015 ; (2) downgraded her performance reviews in 2015 and 2016; and (3) ceased a pattern of cash awards starting in 2014. ID at 28 -33, 41 -42. However, he found that the appellant failed to prove her remaining allegations of USERRA violations . ID at 9-28, 34-41. Those allegations involved the appellant’s February 2012 reinstatement and assignment to a case manager position, ID at 9-18, the agency’s classification of assignments as details rather than permanent changes of assigned positions, ID at 18 -19, the agency’s elimination of a call center supervisor position and a corresponding reassignment, ID at 19 -20, a number of other vacancies and nonselections, ID at 21 -28, 36 -37, advancement to the n ext nursing level, ID at 34 -36, promotion in accordance with “escalator” principles, ID at 37-38, “model employer” requirements , and an alleged hostile work environment, ID at 38 -41. ¶7 The appellant has filed a petition for review , which generally consists of arguments concerning her discrimination claims and the appropriate remedy . Giugliano v. Department of Veterans Affairs , MSPB Docket No. PH-0353 -14- 0772 -I-3, Petition for Review (0772 PFR) File, Tab 1. The agency has filed a response. 0772 PFR File, Tab 3. 5 The administrative judge did not order the agency to provide interim relief. ID. 5 ¶8 As the administrative judge recognized and explained in detail, two types of cases arise under USERRA: (1) reemployment cases, in which the appellant claims that an agency has not met its obligations under 38 U.S.C. §§ 4312 -4318 following the appellant’s absence from civilian employment to perform uniformed service; and (2) “discrimination” cases, in which the appellant claims that an agency has taken an action prohibited by 38 U.S.C. § 4311 (a) or (b). Clavin v. U.S. Postal Service , 99 M.S.P.R. 619 , ¶ 5 (2005); ID at 6 -8. On the merits, reemployment cases and discrimination cases differ in two important ways. First, an individual’s rights under the reemployment provisions of USERRA do not depend on the motivation for an agency’s action (or inaction), whereas an essential element of a discrimination claim is that the contested agency decision was based on an improper motivation. Clavin , 99 M. S.P.R. 619 , ¶ 6. Second, in a reemployment case , the agency bears the burden of proving that it met its statutory obligations. Id. By contrast, in a discrimination case , the appellant bears the burden of proof on the merits, and if that burden is met th e agency may avoid relief by showing that it would have taken the same action even in the absence of the improper motivation. Id. ¶9 The claims that the appellant raised below implicated both the reemployment and the discrimination provisions of USERRA. 077 2 I-2 AF, Tab 32 at 5 -6. However, the only claims for which the administrative judge found that the appellant prevailed fell under the latter and its prohibitions against retaliation for engaging in protected USERRA activity. ID at 28-33; see generally K itlinski v. Merit Systems Protection Board , 857 F.3d 1374 , 1381 & n.3 (Fed. Cir. 2017) (explaining that the anti -reprisal provision of USERRA “is limited to barring acts of d iscrimination in employment and adverse employment actions,” making it more narrow in scope than the anti -reprisal provisions of Title VII of the Civil Rights Act of 1964 ). ¶10 Having carefully considered the appellant’s petition for review, we do not construe it as pertaining to any of her USERRA reemployment claims. The 6 petition refers to “escalator principles ,” see Rassenfoss v. Department of Treasury , 121 M.S.P.R. 512 , ¶ 12 n.4 (2014) (explaining that the “escalator principle” is the concept that an employee who has been absent due to military service or a work -related injury is entitled to be restored to the position that he or she would have attained but for the absence) , but it does so in the context of arguments concerning alleged uniformed service discrimination. 0772 PFR File, Tab 1 at 5, 8. Because t he appellant has not specifically contested any of the administrative judge’s findings o n her reemployment claims , we decline to revisit those issues on review . 5 C.F.R. § 1201.115 (“The Board normally will consider only issues raised in a timely filed petition or cross pe tition for review.”). ¶11 The appellant contests the administrative judge’ s findings on her USERRA discrimination claims, but her arguments are not supported by any references to the law or to the record. 0772 PFR File Tab 1 at 4 -8; see Tines v. Department of the Air Force , 56 M.S.P.R. 90 , 92 (1992) ( holding that a petition for review must contain sufficient specificity for the Board to ascertain whether there is a serious evidentiary challenge justifying a complete review of the record); 5 C.F.R. § 1201.114 (b) ( providing that a petition for review must state a party’s objections to the initial decision, including all of the party’s legal and factual arguments, and must be supported by references to applicable laws or regulations and by specific references t o the record). For example, the appellant states that “[o]nce the appellant’s supervisors became dissatisfied with her being gone for military service, discrimination began with consideration for promotions, positions, and awards and the intervening years were surely influenced by that discrimination ,” and “[f]rom the evidence submitted at trial, it was obvious that prior to her complaints the appellant was on her way to future promotions,” were it not for discrimination. 0772 PFR File, Tab 1 at 5 -6. However, she has not identified any evidence to support these claims. ¶12 The appellant cite s some portions of the initial decision that concern her discrimination claim s. However, she has not persuasively identified any error on 7 the part of the administrat ive judge. For example, the appellant notes that , in discussing two separate promotion opportunities, the administrative judge directly compared the appellant’s qualifications with those of the individual selected for one, but not the other. Id. at 6 (re ferencing ID at 14 -15, 21 -22). For that latter promotion opportunity, however, the administrative judge did provide a reasoned analysis. ID at 22. He found that the selecting official credibly testified about why she chose someone other than the appella nt and how that decision had nothing to do with the appellant’s uniformed service. Id. The appellant has not provided any basis for us to reach a contrary conclusion. See Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (recognizing that an administrative judge’s credibility determinations are entitled to deference when they are based, explicitly or implicitly, on the observation of the demeanor of witne sses testifying at a hearing, and the Board can overturn such determinations only when it has “sufficiently sound” reasons for doing so). The appellant also suggest s that the administrative judge failed to consider her qualifications . 0772 PFR File, Tab 1 at 6 . However, the Board has long held that an 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) . The appellant also argue s generally that “some factual issues raised at trial [did not] appear[] in the decision ,” 0772 PFR File, Tab 1 at 4 , but for the same reason, we find this argument unpersuasive . Accordingly, we affirm the administrative judge’s findings regarding the appellant’s di scrimination claims. ¶13 The appellant has separately noted that there was a substantial delay between the time of her hearing and the issuance of the initial decision in this appeal. Id. at 5. She seems to suggest that the agency has subjected her to additi onal but otherwise unidentified discrimination during this period that the Board should consider and address . Id. However , the administrative judge 8 properly limited this appeal and his decision to the specific claims raised below . 0772 I -2 AF, Tab 32 at 5-6, Tab 33 at 1 -2. If the appellant believes she has been subjected to additional USERRA violations, beyond those that she alleged below, she may file a new Board appeal. See Michaels v. Department of Defense , 112 M.S.P.R. 676, ¶ 9 (2009) (dismissing a USERRA appeal against an appellant’s employing agency and indicating that he could file a new one against a former employing age ncy, where he was employed by the latter at the time of the alleged USERRA violation); 5 C.F.R. §§ 1201.22 (b)(2) (providing no time limit for filing a USERRA appeal), 1208.12 (recognizing the same but encouraging appellants to file a USERRA claim as soon as possible). ¶14 We must now turn to the remedy for the agency’s USERRA violation s. The administrative judge ordered the agency to (1) revise her 2015 and 2016 performance appraisals to “High Satisfactory ;” (2) calculate the average cash award the appellant received between 2011 and 2013, and pay the appellant that amount for each year that followed, up through the date of the hearing ; and (3) promote the appellant to the L ead Home Telehe alth Coordinator, or its equivalent, retroactive to November 2015, affording the appellant all incidents and advantages of the position. ID at 42 -43. The agency does not challenge these orders on review. ¶15 On review, the appellant argues that the administrative judge should have also considered other possible remedies, “such as agency assistance in finding the appellant a supervisory position at another location in the area.” 0772 PFR File, Tab 1 at 4. She separately suggests that the agency should be subject to punitive damages. Id. Finally, the appellant asserts that the administrative judge’s instruction to change her personnel records “does not fully rectify the harm done to the appellant’s career.” Id. at 5 -6. Although we are not persuaded by the appellant’s arguments, we must vacate the administrative judge’s discussion of the appropriate remedy because it is premised on the wrong statutory authority . 9 ¶16 In reaching his conclusion about the appropriat e remedy, the administrative judge mistakenly relied upon 38 U.S.C. § 4323 (d). ID at 42. That section applies to USERRA actions against a St ate or private employer . See Silva v. Department of H omeland Security , 112 M.S.P.R. 362 , ¶ 10 (2009). By contrast, t he Board’s remedial authority under USERRA comes from 38 U.S.C. § 4324 (c)(2). Johnson v. U.S. Postal Service , 121 M.S.P.R. 101 , ¶ 11 (2014). In pertinent part, these two provisions differ in that the former provides for discretion in awarding relief and the consideration of willfulness in a damages award , while the latter states that relief is mandatory and does not contemplate willfu lness . Compare 38 U.S.C. § 4323 (d)(1) (A)-(C) (providing that a court “may award relief” in that it “may require” the State or private employer to comply with the provisions of this chapter, to compensate the person for any loss of wages or benefits, and to pay additional liquidated damages if a violation was “willful”), with 38 U.S.C. § 4324 (c)(2) ( requiring that the Board “shall” order relief if a Federal executive agency or the Office of Personnel Management violates USERRA ). If the Board finds an agency violated the employment or reemployment provisions of USERRA, section 4324(c)(2) mandates that , under the circumstances, we enter an order requiring the agency to (1) comply with section 4311, and (2) compensate the appellant “for any loss of wages or benefits suffered . . . by reason of such lack of compliance .” Erickson v. U.S. Postal Service , 120 M.S.P.R. 468 , ¶ 13 (2013) (quoting 38 U.S.C. § 4324 (c)(2)). ¶17 Once mor e, the administrative judge found that the agency violated USERRA when it (1) failed t o select the appellant for the L ead Home Telehealth Coordinator position; (2) downgraded her performance reviews in 2015 and 2016; and (3) ceased a pattern of cash awards , starting in 2014. ID at 41 -21. As previously stated, the agency has not disputed these violations on review. Pursuant to 38 U.S.C. § 4324 (c)(2), we must therefore order the agency to comply with the provisions of USERRA and compensate the appellant for lost wages and benefits suffered by reason of the agency’s lack of compliance. That include s 10 placing the appellant in the L ead Home Telehealth Coordinator position , or its equivalent , retroacti ve to November 2015 , revising her 2015 and 2016 performance reviews to reflect “High Satisfactory” performance , and compensating the appellant for lost wages and benefits, including cash awards. ¶18 Applying the proper standards regarding our remedial authorit y, we find that the appellant is not entitled to the additional remedies that she is requesting . The Board cannot order the agency to help the appellant find an altogether new position in a new location. Nor can we award her punitive damages. See Isabel la v. Department of State , 106 M.S.P.R. 333 , ¶ 47 n.14 (2007) (explaining that while the V eterans Employment Opportunities Act of 1998 provides for liquidated damages if an agency’s violation was willful, the Board can only order an agency to pay lost wages and benefits for a USERRA violation ), aff’d on recons. , 109 M.S.P.R. 453 (2008) ; cf. 38 U.S.C. § 4323 (d)(1)(A)-(C) (provi ding the remedies for a State or private employer’s USERRA violation, including liquidated damages if the violation was “willful” ). Finally, we cannot speculate about intangible harm to the appellant’s career. See J ohnson , 121 M.S.P.R. 101 , ¶ 11 (recognizing that the Board’s remedial authority under USERRA does not extend to speculative matters, so an appellant’s speculation about lost upward mobility stemming from the loss of training opportunities was inconsequential). ORDER ¶19 We ORDER the agency to comply with the provisions of USERRA and compensate the appellant for lost wages and benefits suffered by reason of the agency’s lack of compliance , as detailed above . See 38 U.S.C. § 4324 (c)(2); 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. ¶20 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. 11 If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appell ant the undisputed amount no later than 60 calendar days after the date of this decision. ¶21 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). ¶22 No later than 30 days after the agency tells the a ppellant 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). ¶23 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 Boar d’s decision in accordance with the attached lists so that payment can be made within the 60 -day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees, expert witness fees, and other litigation expenses . To be paid, you must meet the requirements set forth at title 38 of the United States Code (38 U.S.C.), section 4324(c)(4). The regulations may be found at 5 C.F.R. §§ 1201.201 , 12 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal. NOTICE OF APPEAL 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 Meri t Systems Protection Board do es not provide legal advice on which option is most appropriate for your situation an d the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 13 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlaw ful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), with in 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 14 representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of pre payment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 15 (3) Judicial revi ew pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Fe deral 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,” whi ch is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 16 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.g ov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representati on in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/ Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 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 provid e 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 Civili an 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. Docume ntation 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 re ceived by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leav e ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agree d 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 incl ude Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings document ation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of t he period involved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1 -7 above. The following information must be included on AD -343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a. Must provide same data as in 2, a -g above. b. Prior to conversion computation must be provided. c. Lump Sum amount of Settlement, and if taxable or non -taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Pe rsonnel Operations at 504 -255-4630.	GIUGLIANO_LISA_PH_0353_14_0772_I_3_FINAL_ORDER_2027355.pdf	2023-05-02	null	S	NP
3,197	https://www.mspb.gov/decisions/nonprecedential/EDWARDS_CHARLES_DC_0752_17_0574_I_1_FINAL_ORDER_2027387.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHARLES EDWARDS, Appellant, v. GOVERNMENT PUBLISHIN G OFFICE, Agency. DOCKET NUMBER DC-0752 -17-0574 -I-1 DATE: May 2, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Pete Woodland , Bowie, Maryland, for t he appellant. Thomas Kelly , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his removal appeal as untimely filed without good cause shown . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; 1 A nonprecedential order is one that the Board has determined doe s not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In cont rast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 the initial decision is based on an erroneous interpretation o f statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regul ations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 On petition for review, the appellant raises the following arguments: his appeal was filed only 1 day past the filing deadline; his personal circumstances establish good cause for the filing delay; and his efforts toward obtaining employment have been har med by the agency’s negative employment reference . Petition for Review (PFR) File, Tab 1 at 2. The ag ency has filed a response. PFR File, Tab 3. With its response , the agency has resubmitted the initial d ecision and documentation that wa s a part of the record before the administrative judge. Id. at 11 -56; Initial Appeal File (IAF), Tabs 1 -2, Tab 7 at 8-29; see Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980) ( finding that evidence that already is a part of the record is not new ). ¶3 After considering the appellant’s arguments on review, we discern no reason to disturb the administrative judge’s well -reasoned findings that the appellant ’s appea l was untimely filed by at least 10 days, and that he has failed to show good cause to excuse his untimely filing. PFR File, Tab 1 at 2; IAF, Tab 16, Initial Decision at 5 -11; see 5 C.F.R. § 1201.56 (b)(2)(i)(B) (providing that an appellant bears the burden of proving by preponderant evidence the timeliness of h is appeal); see also 5 C.F.R. § 1201.22 (c) (explain ing that the 3 Board will dismiss an untimely filed appeal unless a good reason for the delay is shown). Moreover, we find that the appellant’s argument regarding his unsuccessful attempts to obtain employment is not relevant to the dispositive timeliness i ssue, and thus, provides no reason to disturb the initial decision. PFR File, Tab 1 at 2. ¶4 Accordingly, we affirm the initial decision. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Alth ough we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how court s will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contain ed within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono fo r information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circu it), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 5 you do, then you must file with the district court no later than 30 calendar days after your represe ntative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any require ment of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representati ve receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 6 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition o f allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appea ls 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 Madis on Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Ap pellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3 The original st atutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently a llows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accep t representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www. uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	EDWARDS_CHARLES_DC_0752_17_0574_I_1_FINAL_ORDER_2027387.pdf	2023-05-02	null	DC-0752	NP
3,198	https://www.mspb.gov/decisions/nonprecedential/GOODMAN_ERIKA_CH_0752_21_0327_I_1_FINAL_ORDER_2026703.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ERIKA GOODMAN, Appellant, v. DEPARTMENT OF LABOR, Agency. DOCKET NUMBER CH-0752 -21-0327 -I-1 DATE: May 1, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Erika Goodman , Hazel Crest, Illinois, pro se. Carolyn Cheung , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member2 FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed her removal based on the charges of misuse of a Government travel card 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2 and lack of candor. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, d espite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully conside ring the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’ s final decision. 5 C.F.R. § 1201.113 (b). ¶2 On petition for review, the appellant submits new evidence, namely a final agency decision (FAD) in her equal employment opportunity (EEO) c omplaint dated June 7, 2021. Petition for Review ( PFR ) File, Tab 1 at 10 -43. Under 5 C.F.R. § 1201.115 , the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the close of the record below despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980); see Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board generally will not consider a new argument raised for the first time on review absent a showing that it is based on new and material evidence). The appellant offers no explanation why she did not submit the FAD, which the agency issued 3 months prior to the hearing, into the record during the pendency of her appeal. PFR File, Tab 1 at 4-8. Even if we were to consider this document, neither the FAD nor the appellant’s arguments on review provide a basis for disturbing the administrative judge’s finding that she had not met her burden to show that her EEO activity was 3 a motivating factor in the removal action .3 Initial Appeal File (IAF), Tab 27, Initial Decision ( ID) at 20-22. ¶3 The administrative judge noted that it was undisputed that the appel lant had filed an EEO complaint and that there was “some evidence in the record tending to show that the proposing and deciding officials may have had general knowledge” that the appellant had filed a complaint . ID at 21. Nonetheless , she found credible the testimony of both officials that the EEO activity had no impact on the removal action and that the timing of the removal act ion alone was insufficient to infer a retaliatory motive. ID at 22. Moreover, the administrative judge noted that the routine administrative audit and management’s referral of the matter to the OIG occurred before the appellant filed her informal EEO com plaint on November 1, 2019. Id.; IAF, Tab 20 at 18 ; PFR File, Tab 1 at 10. The agency does not challenge the administrative judge ’s finding that the proposing official was aware of the EEO complaint. ID at 21; PFR File, Tab 5 at 14. The appellant’s arguments on review essentially amount to a disagreement about when exactly the proposing official found out about he r EEO complaint. PFR File, Tab 1 at 4 -5. We agree with the administrative judge that the appellant failed to establish that her November 1, 2019 EEO complaint was a motivating factor in her removal, which stemmed from a routine audit that occurred several months prior to the complaint. ¶4 The appellant’s remaining arguments on review are unavailing . She does not specifically challenge the admini strative judge’s findings that the agency proved the charges of misuse of a Government travel card and lack of candor, the nexus between the appellant’s misconduct and the efficiency of the service, and 3 Because we discern no error with the administrative judge’s motivat ing factor analysis or conclusion regarding the appellant’s claim of retaliation for EEO activity, we do not reach the question of whether her protected EEO activity was a “but -for” cause of the removal action. See Pridgen v. Office of Management and Budg et, 2022 MSPB 31 , ¶¶ 20-22, 29 -33. 4 the reasonableness of the penalty of removal , and we discern no basis for disturbing these findings. PFR File, Tab 1 at 4 -8; ID at 5 -19; see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105 -06 (1997) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility); Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987). The appellant’s arguments regarding her affirmative defenses are essentially mere disagr eement with the administrative judge’s credibility determinations , and her conclusory assertions that various agency witnesses “deliberately an d intentionally lied under oath ” are unpersuasive. ID at 20 -26; PFR File, Tab 1 at 5 -7. ¶5 The administrative jud ge properly found that the appellant failed to prove any of her claims that the agency violated her right to due process. ID at 22 -24. The appellant has provided no support for her assertion that she was entitled to all evidence in the agency’s possessio n before the completion of the OIG investigation. ID at 23. She seemingly conflates the requirement under 5 U.S.C. § 7513 (b)(1) that an employee against whom an adverse action is proposed is entitled to at least 30 days advanced written notice of the specific reasons for the action, with a requirement that the agency had to provide her such notice and the evidence from the audit prior to referring the matter to the OIG. PFR File, Tab 1 at 6-7; IA F, Tab 18 at 4; cf. Stone v. Federal Deposit Insurance Corporation , 179 F.3d 136 8, 1376 (Fed. Cir. 1999) (stating that procedural due process guarantees are not met if the emp loyee has notice of only certain charges or portions of the evidence, or if the deciding official considers new and material information). ¶6 The appellant argues that the OIG investigator withheld the second half of the transcript of her interview to benefit the agency, and she asserts that his testimony that the contents of this portion of the interview were unrelated to the charged misconduct in the appellant’s removal was false. PFR File, Tab 1 at 6. 5 The appellant does not allege and there is nothing in the record suggesting that the deciding official received a complete copy of the interview transcript while the appellant received only the first half. Therefore, the appellant does not raise a due process claim that the deciding official received ex parte information to which she was not entitled. See Stone , 179 F.3d at 1376 . To the extent that the appellant alleges that she t ried to obta in the complete transcript through the discovery process and the agency failed to provide the documents, she did not file a motion to compel below and is precluded from raising this discovery issue for the first time on review. See Szejner v. Office of Pe rsonnel Management , 99 M.S.P.R. 275 , ¶ 5 (2005), aff’d , 167 F. App’x 217 (Fed. Cir. 2006). Finally, regarding her claim that the agency improperly informed the deciding official that she had been on weather and safety leave fo r an extended period, the appellant offers no support aside from her conclusory argument that it was “not a coincidence” that the deciding official spoke to a subordinate employee in her office on April 21, 2021 , and then sustained th e proposed removal on April 26, 2021.4 PFR File, Tab 1 at 7. ¶7 Accordingly, we affirm the initial decision. NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit 4 The appellant described this due process claim as an affirmative defense of laches in her response to the affirmative defenses order. IAF, Tab 18 at 5. The administrative judge properly explained that this was part of the appellant’s due process claim i n both the summary of prehearing conference and the initial decision. ID at 23 -24. 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 noti ce, the Board cannot advise which option is most appropriate in any matter. 6 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to yo ur particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 7 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, t hen you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, 8 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial revi ew pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegation s of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the F ederal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for 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 9 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” whi ch is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.g ov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representati on in a given case. for the Federal Cir cuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	GOODMAN_ERIKA_CH_0752_21_0327_I_1_FINAL_ORDER_2026703.pdf	2023-05-01	null	CH-0752	NP
3,199	https://www.mspb.gov/decisions/nonprecedential/MITCHELL_GERALD_AT_0831_19_0078_I_1_FINAL_ORDER_2026712.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD GERALD MITCHELL, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER S AT-0831 -19-0078 -I-1 AT-844E -13-3694 -I-1 DATE: May 1, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Gerald Mitchell , Memphis, Tennessee, pro se. Jane Bancroft and Linnette L. Scott , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed petition s for review of two initial decision s, which dismissed his appeals for lack of jurisdiction. We JOIN the appeals because we have determined that doing so will expedite processing of the cases and will not adversely affect the parties’ interests. 5 C.F.R. § 1201.36 . Generally, we grant 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 require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 petition 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 o f the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). For the reasons set forth below, the petition for review in Mitchell v. Office of Personnel Management , MSPB Docket No. AT -844E -13-3694 -I-1 (3694 appeal) , is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g). Further, a fter fully considering the filings in Mitchell v. Office of Personnel Management , MSPB Docket No . AT -0831 -19-0078 -I-1 (0078 appeal) , we conclude tha t the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review in the 0078 appeal and AFFIRM the initial decision , which is now the Board’s final decision . 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 In the 3694 appeal , the administrative judge found that the Board lack s jurisdiction over OPM’s denial of the appellant’s application for a Civil Se rvice Retirement System (CSRS) disability retirement annuity because OPM rescinded its reconsideration decision. Mitchell v. Office of Personnel Management , MSPB Docket No. AT-844E -13-3694 -I-1, Initial Appeal File (3694 IAF), Tab 1 at 3, Tab 6, Initial De cision ( 3694 ID) at 1 -2. The appellant did not file a petition for review of the initial decision before it became fi nal in October 2013. 3694 ID at 2. However, on May 21, 2019, he filed an untimely petition for review , alleging that he recently discovered that an appeal cannot be dismissed unless the 3 appellant is provided with status quo ante relief and that he has not been provided with such relief. Mitchell v. Office of Personnel Management , MSPB Docket No. AT-844E -13-3694 -I-1, Petition for Re view (3694 PFR) File, Tab 1 at 4. He filed a motion to waive the untimeliness of his petition for review. 3694 PFR File, Tab 6 at 4 -5. The agency has not responded to the petition for review or the appellant’s motion. ¶3 In the interim, in September 2013 , OPM approved the appellant’s application for disability retirement. Mitchell v. Office of Personnel Management , MSPB Docket No. AT -0831 -19-0078 -I-1, Initial Appeal File (0078 IAF), Tab 25 at 26 -28. In the 0078 appeal , filed in October 2018, the appellan t alleged that OPM failed to respond to his inquiries requesting information and documents related to his disability reti rement and failed to correct his Standard F orm 50 (SF-50). 0078 IAF , Tab 1 at 5, Tab 5 at 3, Tab 7 at 4. He also generally claimed th at OPM’s action in withholding this information was discriminatory and retaliatory . 0078 IAF, Tab 1 at 5, Tab 8 at 5. The administrative judge found that the appellant failed to make a nonfrivolous allegation of facts that, if proven , could establish Board jurisdiction. 0078 IAF, Tab 39, Initial Decision (0078 ID) at 2 . For example, the administrative judge observed that the appellant did not identify a reconsideration decision that he was appealing. 0078 ID at 2 -3. ¶4 On review, the appellant argues that OPM’s failure to provide the information he requested related to his retirement is an appealable action. Mitchell v. Office of Personnel Management , MSPB Docket No. AT-0831 -19-0078 -I-1, Petition for Review (0078 PFR) File, Tab 1 at 4-5. He also argues that the administrative judge failed to grant his motion to compel discovery and that OPM failed to provide him with sufficient information during the course of the appeal. 0078 PFR File, Tab 1 at 4 -5, Tab 2 at 4. He further alleges that the agency retaliated against him when it violated his right to privacy by disclosing his Civil Service Annuity (C SA) case number in the agency file and 4 that the administrative judge erred by not striking the agency file from the record. 0078 PFR Fil e, Tab 1 at 4, Tab 2 at 4-5. OPM has filed a pro forma response, to which the appellant has replied .2 0078 PFR File, Tab s 5-6. DISCUSSION OF ARGUME NTS ON REVIEW We dismiss the appellant’s petition for review in the 3694 appeal as untimely filed without good cause. ¶5 On review, the appellant con tends that on or about May 20, 2019, he learned that OPM cannot divest the Board of jurisdiction until an appellant achieves true status quo ante . 3694 PFR File, Tab 1 at 4 , Tab 3 at 4, Ta b 6 at 5 . The appellant submits an email dated May 18, 2019, which he sent to himself , that includes a link to a FEDmanager.com article published on March 1, 2016. 2 Over 3 years after the submission of his petition for review, the appellant has filed two m otion s for leave to submit additional arguments and evidence. 3694 PFR File, Tabs 13, 16. In his first motion, he asserts without detail that additional pleadings are necessary “for the sake of due process, . . . engaging in the legal process, . . . presenting as much supporting and relevant information as possible, . . . capturing the totality of the circumstances, . . . detailing all of the issues that are known at this time, and . . . to exercise as many r ights that are known to him.” 3694 PFR File, Tab 13 at 3. In his second motion, he argues that he has new evidence that OPM’s actio ns in connection with his 3694 a ppeal negatively impacted his pursuit of his equal employment opportunity (EEO) claims, inc luding causing the Equal Employment Opportunity Commission’s denial of an EEO claim he filed. 3694 PFR File, Tab 16 at 1-3. He also asserts that OPM was the cause of an alleged failure of his employing agency to respond to his request for information reg arding his “reinstatement eligibility as an annuitant.” Id. at 2. 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. Exec utive Office of the President , 2022 MSPB 26 , ¶ 4 n.4; 5 C.F.R. § 1201.114 (k). As to his first motion, t he appellant has not indicated that the arguments or evidence he seeks to submit are missing from the record below o r were previously unavailable . See Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980) ( determining that evidence that is already a part of the record is not new) ; 5 C.F.R. § 1201.115 (d) (providing that new evidence is evidence that was unavailable despite due diligence when the record closed ). Nor has he asserted that they will change the outcome of this appeal. Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (explaining that t he 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 ). As to his second motion, his arguments are not material to the dispositive timeliness issue, which is discussed below. Accordingly, we deny the appellant’s motion s. 5 3694 PFR File, Tab 6 at 9. The article indicates that the Board, in Campbell v. Office of Personnel Management , 123 M.S.P.R. 240 (2016), held that a complete rescission of an OPM decision requires OPM to return the appe llant to the status quo ante. FEDmanager.com, Case Law Update, https://fedmanager.com/news/opm -cannot -divest -board -of-jurisdiction -until-it- achieves -true-status -quo-ante (last visited on Apr. 27 , 202 3). The appellant has not alleged that his petition for review is timely. 3694 PFR File, Tab 6 at 4. We find that it is not. ¶6 To be timely, a petition for review must be filed within 35 days of the date of the initial decision’s issuance 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 he received the initial deci sion. 5 C.F.R. § 1201.114 (e). As the party filing the petition for review, t he appellant bears the burden of proof wi th regard to timeliness, which he must est ablish by preponderant evidence. Perry v. Office of Personnel Management , 111 M.S.P.R. 337 , ¶ 5 (2009); see 5 C.F.R. § 1201.56 (b)(2)(i)(B) (explaining that an appellant has the burden of proving the timeliness of his appeal by preponderant evidence) . The Board will excuse the late filing of a petition for review only on a showing of good cause for the delay. Perry , 111 M.S.P.R. 337 , ¶ 6; 5 C.F.R. § 1201.114 (g). To establish good cause for an untimely filing, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. See 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 h is excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or m isfortune which similarly shows a causal relationship to his inability to timely file his petition. Moorman v. 6 Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table). ¶7 Here, t he administrative judge informed the appellant that the initial decision had an October 11, 2013 finality date, unless either party filed a petition for review by t hat date. 3694 ID at 2. The initial decision was served by electronic mail on September 6, 2013, to the appellant, a registered e-filer. 3694 IAF, Tab 1 at 2, Tab 6. As an e -filer, he is deemed to have received the initial decision on the date of electronic submission, September 6, 2013. 3694 ID at 1; see Palermo v. Department of the Navy , 120 M.S.P.R. 694 , ¶ 3 (2014); 5 C.F.R. § 1201.14 (m)(2). Accordingly, he had until October 11, 2013, the 35th day following the issuance of the September 6, 2013 initial decision, to file a petition for review. 3694 ID at 2. The appellant filed his petition for review on May 21, 2019, nearly 6 years past the filing deadline. 3694 PFR File, Tab 1. ¶8 The Office of the Clerk of the Board informed the appellant that his petition for review was untimely filed and that he could file a motion with the Board to accept his filing as timely or to waive the time limit for good cause. 3694 PFR File, Tab 4 at 1 -2. In the appellant’s response, he asserts that on or about May 20, 2019, he discovered new information indicating that OPM cannot divest the Board of jurisdiction until an appellant achieves true status quo ante relief . 3694 PFR File, Tab 3 at 4, Tab 6 at 5. ¶9 Although the appellant is pro se, the nearly 6 -year delay in filing his petition for review is substantial , and the appellant has not shown that he acted with due diligence or ordinary prudence or that there were circumstances beyond his control that affected his ability to comply with the time limit. The discovery of, or a decision to pursue, a new legal argument after a period for filing a petition for review has expired does not constitute good cause for a filing delay. Jones v. Department of Tran sportation , 69 M.S.P.R. 21 , 27 (1995), aff’d , 111 F.3d 144 (Fed. Cir. 1997) (Table); see Damaso v. Office of Personnel Management , 86 M.S.P.R. 371 , ¶ 5 (2000) (declining to excuse an untimely filed 7 petition for review when the appellant alleged that he did no t realize he had grounds to contest an initial deci sion until he read a Board member ’s separate opinion in another case); Ganley v. U.S. Postal Service , 65 M.S.P.R. 70 , 71-72 (1994) (finding no good cause for an over 1 -year delay in filing a petition for review when the appellant claimed that the Board “reversed its position” ), aff’d per curiam , 50 F.3d 22 (Fed. Cir. 1995) (Table); Watkins v. Department of the Navy , 33 M.S.P.R. 5 , 8 (1987) ( explaining that good cause for a filing delay is not present when an appella nt who is aware of his right to challenge an action before the Board chooses not to exercise that right until he learns that someone else has successfully pursed the argument he could have made himself). Thus, the appellant has not established good cause for the untimely filing of his petition for review. ¶10 Accordingly, we dismiss the petition for review in the 3694 appeal as untimely filed. This is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review in MSPB Docket No. AT-844E -13-3694 -I-1. The initial decision remains the final decision of the Board regarding the Board’s jurisdiction over OPM’s rescinded reconsideration decision in that matter . The administrative judge correctly dismissed the 0078 appeal for lack of Board jurisdiction. ¶11 The administrative judge found that the Board lacks jurisdiction because the appellant failed to identify any specific action by OPM that affected his rights or interests under CSRS . 0078 ID at 2 -3. On review, t he appellant ass erts that OPM’s failure to provide the information he requested that is “connected to and associated with his retirement ” is an appealable action. 0078 PFR File, Tab 1 at 4-5. We are not persuaded. ¶12 The Board ’s jurisdiction is limited to t hose 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 Board ’s jurisdiction 8 concerning retirement matters involving th e CSRS is defined at 5 U.S.C. § 8347 (d)(1), which provides , in relevant part, that “an administrative action or order affecting the rights or interests of an individual . . . under [CSRS ] may be appealed to the Merit Systems Protection Board.” Miller v. Office of Personnel Management , 123 M.S.P.R. 68 , ¶ 9 (2015). The appellant has the burden of proving the Board’s jurisdiction by a preponderance of the evidence. 5 C.F.R. § 1201.56 (b)(2)(i)(A). ¶13 Here, the appellant asserts that OPM violated his rights by not providing him with the information he requested related to his retirement and that OPM is “withhold[ing], conceal[ing], and cover[ing] -up information, personnel actions, [and] documents” in connection with his retirement . 0078 PFR File, Tab 1 at 4 -5. However , as observed by the administrative judge, the appellant admitted that he had not received a decision from OPM regarding his requests for information . 0078 IAF, Tab 1 at 5; 0078 ID at 2 . Moreover, this appeal does not involve a direct adjudication of the appellant’s entitlement to a disability retirement annuity . It is undisputed that OPM approved the appellant’s disability retirement application in September 2013 . 0078 IAF, Tab 25 at 26 -28. Instead, the appellant seeks information and documents “connected to and associated with” his approved disability retirement application. 0078 PFR File, Tab 1 at 4 -5. Thus, even if OP M issued a final decision on the appellant’s request, the Board would not have jurisdiction over this matter because the appellant’s retirement rights and interests are not adversely impacted. See Miller , 123 M.S.P.R. 6 8, ¶¶ 2, 9-10 (finding that the Board lacked jurisdiction over a CSRS overpayment when the appellant was not entitled to the funds in question under the CSRS, but rather received them via a check payable to the deceased annuitant’s estate ). Accordingly, the administrative judge properly dismissed this appeal for lack of jurisdiction. 9 The appellant’s other arguments on appeal do not provide a basis to disturb the initial decision in his 0078 appeal . ¶14 As noted above, the appellant raises several issues regarding the administrative judge’s rulings durin g the processing of his appeal. First, t he appellant argues that the agency violated his privacy rights by disclosing his CSA number in the agency file and that the administrative judge erred in denying his motion to strike the agency file on this basis . 0078 PFR File, Tab 1 at 4, Tab 2 at 4-5; 0078 IAF, Tab 27 at 4-5. The appellant filed a motion to str ike due to this alleged violation of his privacy below because the agency was “displaying, exposing, publishing and distributing his CSA number” by including it in the agency file . 0078 IAF, Tab 27 at 4-5 (emphasis omitted) . Without providing an explanation, the admini strative judge denied this motion in the initial decision. 0078 ID at 4 n.2 . We decline to disturb this ruling. ¶15 An administrative judge has broad discretion to regulate the proceedings before him, including the ability to rule on motions to strike . Defense Intelligence Agency v. Department of Defense , 122 M.S.P.R. 444, ¶ 16 (2015). We discern no basis to find that the administrative judge abused his discretion. The appellant’ s motion was without basis , as t he parties’ pleadings generally are not available to the public for inspection and copying, other than as provided for under the Freedom of Information Act, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a . 5 C.F.R. § 1201.5 3(e). ¶16 To the extent that the appellant is arguing that OPM violated his rights under the Privacy Act, the Board lacks jurisdiction to adjudicate Privacy Act claims. 0078 PFR File, Tab 2 at 4 -5; s ee Young v. U.S. Postal Service , 113 M.S.P.R. 609 , ¶ 40 (2010) (explaining that the Board lacks jurisdiction to adjudicate Privacy Act claims except where the Act is imp licated in matters over which the Board has jurisdiction). Thus, the appellant’s argument that the agency was “displaying, exposing, publishing and distributing” his private information to the public is unavailing. 0078 PFR File, Tab 27 at 4 -5. Therefor e, we find that 10 the administrative judge did not abuse his discretion in denying the appellant’s motion to strike. ¶17 The appellant also asserts that he was denied due process because the agency “did not present the entire agency file, and did not present all the information that it relied upon.” 0078 PFR File, Tab 1 at 4. He further alleges that the administrative judge erred when he prevented the production of this documentation . 0078 PFR File, Tab 2 at 4. A review of the record below shows that the agency submitted its agency file as requested by the administrative judge. 0078 IAF, Tabs 17 , 19. The appellant does not provide any evidence or argument as to what documents he believes are missing from the agency file submitted by OPM. Nor does he exp lain how the administrative judge prevented the production of the agency file or prevented the appellant from reviewing it. Thus, even assuming that the agency failed to provide “the entire agency file,” the appellant has not shown how any error impacted his appeal. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (finding that an adjudicatory error that is not prejud icial to a party’s substantive rights provides no basis for reversal of an initial decision). ¶18 The appellant also argues that the administrative judge erred in denying his motion to compel. 0078 PFR File, Tab 1 at 4 -5, Tab 2 at 4; 0078 IAF, Tab 31.3 The administrative judge denied the appellant’s motion to compel discovery because , in light of the dismissal of the appeal for lack of jurisdiction, the information sought by the appellant was not releva nt to the jurisdictional issue. 0078 ID at 4 n.2. The appellant has failed to show how the requested information and documents would have affected the administrative judge’s finding that he failed to make a nonfrivolous claim of the Board’s jurisdiction. For example, the 3 In support of his argu ment, the appellant resubmits his December 3, 2018 request for discovery , which is a lready p art of the record below and thu s is not new. Compare 0078 PFR File, Tab 1 at 6 -8, with 0078 IAF , Tab 31 at 7 -9; see Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980) (finding that evidence that is already a part of the record is not new). Therefore, we have not addressed it. 11 appellant did not seek information or documentation related to a final decision issued by OPM in an effort to establish Board jurisdiction . 0078 IAF, Tab 31 at 7-9. Further, the determination of whether an appellant has been issued a final decision by OPM would consist of documentation that should already be in the appellant’s possession. Consequently, the appellant has failed to establish that he was prejudiced by the administrative judge denying his motion to compel.4 See Davis v. Department of Defense , 103 M.S.P.R. 516 , ¶ 13 (2006) (finding that, when an appeal is dismissed for lack of jurisdiction, there is no prejudice to an appellant’s substantive rights based on the absence of discovery that did not seek information that would establish the Board’s jurisdiction) ; see 5 C.F.R. § 1201.41 (b)(4 ) (recognizing an administrative judge’s authority to rule on discovery motions ). ¶19 In sum, for the reasons discussed above, we affirm the initial decision in the 0078 appeal , which dismissed the appeal for lack of jurisdiction. 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 f ile. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate f or your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their 4 To the ex tent that the appellant disputes the administrative judge’s finding that the Board lacks jurisdiction over his unspecified retaliation claims, we discern no basis to disturb that finding. 0078 PFR File, Tab 1 at 4; 0078 ID at 3 -4. Prohibited personnel practices are not an independent source of Board jurisdiction. Pridgen v. Office of Management and Budget , 117 M.S.P.R. 665 , ¶ 7 (2012). 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 12 jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices o f review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . A s a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of thi s decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov /probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 13 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Fe deral Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 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 you r representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of an y requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excl uding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 14 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 2 0507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 15 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitione rs and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney w ill accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MITCHELL_GERALD_AT_0831_19_0078_I_1_FINAL_ORDER_2026712.pdf	2023-05-01	null	S	NP

Subsets and Splits

No community queries yet

The top public SQL queries from the community will appear here once available.